The Right to Regulate (Cooperatively)

70 Pages Posted: 25 Mar 2017 Last revised: 27 Jan 2018

Date Written: December 30, 2016

Abstract

The growing number of new technologies in food production — such as nanotechnology, genetic modification, animal cloning, and irradiation — are garnering different regulatory responses around the world. Based on their threshold for tolerating risk, countries are asserting their national right to regulate at home using labeling, quarantine, and outright bans on foods. But domestic regulation has its limits in a free trade environment. Countries that are not mindful of treaty obligations could face legal liability, as seen in the recent litigation between Uruguay and Philip Morris International. In short, traditional models of international regulatory cooperation (IRC) are failing to provide countries with sufficient regulatory latitude within a free trade framework.

New Mega-Regional agreements provide a renewed momentum to advance cooperation. In 2012, President Obama issued an executive order to prompt federal agencies to engage in IRC and championed two important IRC initiatives, the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership. Obscured by the criticism of the TPP (including by both major parties in the 2016 U.S. Presidential election) is its development of a novel framework that promises to integrate domestic regulatory oversight and free trade goals. As this Article explains, the TPP is (1) an exemplar of a Mega-Regional trade framework, (2) a new promising mechanism for IRC, and (3) a way to achieve higher food safety outcomes. In so doing, it underscores how the TPP enhances regulatory cooperation with a menu of new treaty offerings that nudge countries to regulate in ways unrecognized in the IRC literature. Given the rapid pace of new food technologies, the inability to resolve international conflicts with traditional means, and impending trade disputes, the model of IRC developed in this article provides an effective solution to a growing challenge in the international trade regime.

Keywords: Food Law, International Trade, Trans-Pacific Partnership, International Regulatory Cooperation

JEL Classification: F13, F15, L66, Q18

Suggested Citation

Marks, Alexia Brunet, The Right to Regulate (Cooperatively) (December 30, 2016). University of Pennsylvania Journal of International Law, Vol. 38, No. 1, 2016; U of Colorado Law Legal Studies Research Paper No. 18-3. Available at SSRN: https://ssrn.com/abstract=2940301

Alexia Brunet Marks (Contact Author)

University of Colorado Law School ( email )

Wolf Law Building
401 UCB
Boulder, CO 80309
United States

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