Continental Drift: Agricultural Trade and the Widening Gap Between European Union and United States Animal Welfare Laws

Abstract

Over the last decade, the European Union has incurred trade sanctions of over $100mil/year, to the U.S. and Canada, for refusing to allow foreign imports of beef products from cattle treated with natural or synthetic growth hormones. The retroactive reparations were assessed against the E.U. by the World Trade Organization after the U.S. and Canada prevailed in a prolonged trade dispute over the E.U. trade ban. However, hormone-raised beef products are still prohibited in the E.U., under an extensive agricultural reform policy aimed at improving food safety and animal welfare standards. The U.S., in contrast, offers scant protections for farm animals, and conditions on “factory farms” have steadily worsened. Similarly, the U.S. food safety paradigm has been static for decades, its inadequacies underscored by the August, 2010 recall of almost 400 million eggs feared tainted with salmonella.

The Beef-Hormones dispute is a bellwether for agricultural trade relations between the two trading giants, as domestic economic pressures inevitably lead to more of the same international trade bans on certain U.S. foods derived from animals. Unless E.U. food producers are compensated for the up-front costs of using production methods that incur fewer environmental and public health externalities, their products will not survive direct competition with less-expensive American imports. To preserve its higher food security and animal welfare standards, the E.U. must insulate its animal agriculture industries from these imports. Therefore, as E.U. animal welfare and food safety regulations are implemented more broadly, products derived from “factory farm” U.S corporations will be less welcome in the E.U. marketplace.

This article posits that the E.U. will ultimately prevail in a prolonged trade conflict borne of the diametrically-opposed policies, and that U.S. corporations desiring access to E.U. markets will have no choice but to initiate good faith animal welfare and food safety reforms, in the absence of legislative reform. Part I depicts the developing chasm between animal agriculture regulations in the U.S. vis-à-vis the E.U. Part II reviews the legal scaffolding on which trade agreements are built and disputes are resolved, illustrating the contradictory twin goals of supporting sovereign authority over domestic policies and enabling unencumbered international trade. Finally, Part III analyzes relevant WTO disputes and suggests arguments the E.U. might use to preserve its animal welfare standards and human health regulations, focusing on the General Agreement on Tariffs and Trade (“GATT”) and the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”). The article concludes that, irrespective of inevitable diplomatic and economic pressure from the U.S., existing trade agreements do not foreclose the use of trade bans to preserve E.U. reform directives.

Keywords: Animal Law, International Trade, Agriculture, Animal Welfare, Food, WTO, GATT, SPS