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glyphosate
Early US Fumbles in Tortilla War With Mexico Over GMO Corn
The U.S. government ignores the trade numbers and misconstrues Mexican policy when it comes to glyphosate and American corn destined for human consumption across the border.
Jun 27, 2024
An international battle over tortillas is taking place this week. For an ingredient in tacos, the United States gins up a trade dispute with Mexico. Last year, in a Decree Mexico outlawed genetically modified (GMO) corn for human consumption. The U.S.argues that this violates trade obligations. Worried about its GMO corn exports, it formed a trade panel under the United States Mexico Canada Agreement (USMCA). Hearings started Wednesday.
The controversy is overstuffed and a sloppy mess. So far, American and Mexican legal filings contain 586 pages, 758 exhibits, and nearly 2,000 footnotes. Arguments span over 20 separate USMCA provisions and multiple annexes. Extra submissions come from Canada and non-governmental organizations. It’s hard to follow, whether you’re a trade expert, scientist, or just care about food safety.
The U.S. position has two weaknesses: economic errors and misrepresentations about the Decree. These are basic mistakes, from a Trade 101 class, regarding injuries and policy. The fumbles stand out from the legalese and scientific jargon in the filings. And let's be clear: he U.S. should drop the case.
A good place to start making sense of the fight is the actual Decree. Article 6 outlaws GMO corn for human consumption, precisely defined as corn for tortillas or masa (dough). It stops approvals for GMO corn for these two items. That is it. The Decree is explicit in not touching GMOs in animal feed or industrial use—the kind U.S. corn farmers mostly export.
Decree motivations include protecting human health, biodiversity, and food security. The prohibition responds to risks from glyphosate, an herbicide needed to grow GMO corn. It has been found to be a likely cause of cancer by international health agencies and U.S. courts. Next, Mexico is corn’s center of origin and diversity, a scientific designation indicating extreme genetic vulnerability. In 2021, Mexico’s Supreme Court found that GMOs threaten to permanently damage this biodiversity. More immediate, corn provides half of the daily protein intake for Mexicans.
With Article 6, Mexico reduces these threats by outlawing GMOs in the tortillas and masa, eaten by millions every day. For thesescientifically establishedrisks, Mexico tailored the Decree to only impact two food staples.
The U.S. ignores this. Recent economic figures explain. Mexican corn imports from the U.S. have increased since the Decree. Last week, the U.S. Department of Agriculture reported a “record-high” for corn exports to Mexico for 2023 and 2024 and forecasts similar trends next year. This confirms earlier reports citing increases by 20 percent.
Put simply, the Decree has no real impact on trade in corn. Why? Because American farmers overwhelmingly export corn for animal feed and not for human consumption. Mexicohas explained this since enacting the Decree. Let’s be clear, the U.S. fights as exports increase. It makes no sense.
Furthermore, the U.S. mispresents the Decree. The U.S. says Mexico imposes a “Tortilla Corn Ban.” Wrong. It suspends approvals for human consumption. GMO corn can still be imported but cannot be destined for tortillas. Mexico describes this as an “End Use Limitation,” since it regulates how corn is used. This applies to GMO corn from anywhere including from Mexican farms.
Next, the U.S. exaggerates what the Decree does. It quibbles about non-issues. What it coins “Substitution Instructions” to force replacing GMO corn in animal feed. The complaint is that instructions are unclear.
Problem: the Decree does not mandate substitution. It does describe future actions and the prerequisites needed to replace GMO feed. Article 7 expressly says Mexico’s commission on sanitary risk will continue approving GMO corn in animal feed, so long as it is not for tortillas. It clarifies that federal agencies will conduct any possible substitution. By implication state governments in Mexico have no role.
Article 8 confirms this, explaining what is necessary before any replacement. It designates the parameters to eventually substitute GMO corn for animals. Pre-conditions include determining national food security and any impacts on human health. In two filings, Mexico explains that the prerequisites have not occurred. As such, it has not set any date for substitution, much less any guidance.
Nowhere does the Decree demand alternatives for GMOs. American complaints miss the mark. There is no there there. The Decree does not touch corn for livestock.
The dispute just started warming up the comal (skillet used to heat tortillas). A final panel report comes in November. Until then, expect a mess with more scientific and legal arguments piled on. In the simplest terms, the U.S. ignores commercial reality and misrepresents the Decree. Basic blunders compounding obstacles in the USMCA’s food safety rules.
All this should inspire resolution versus repeating trade defeats. American farmers and Mexican eaters deserve better. Ending the dispute secures a corn buyer in a neighbor. It promotes public health in Mexico. The current course only produces uncertainty.
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Law Is Not on the US Side in GMO Corn Fight With Mexico
Put simply, the U.S. gets it wrong when it comes to trade rules on food safety. Their lawyers—experienced as they are—should know better.
May 14, 2024
The United States ups the ante in its legal clash with Mexico over genetically modified (GMO) corn. Last month, a trade panel released the US’s latest legal filing. It essentially doubts the science Mexico offers and claims Mexico violates obligations from the USMCA trade pact.
This regards Mexico’s Decree from April 2023 banning GMO corn for human consumption. The ban cites harms from genetic manipulation of corn seeds and cancer risks from herbicides like glyphosate, needed by GMO farms. A USMCA panel will hold hearings on American complaints in June.
The U.S. position is not as strong as it claims—far from it. Observers analyze why Mexico’s scientific justifications are on solid ground. As a law professor, I explain how the U.S. overstates its legal case, at times severely so, when it comes to the ban on GMOs in tortillas and masa (dough).
Put simply, the U.S. gets it wrong when it comes to trade rules on food safety, called sanitary and phytosanitary measures (SPS) and covered in USMCA Chapter 9. Weaknesses regard two aspects of food safety: protection levels and health risks. In a recent journal article, I offer detailed examinations of these and other obstacles.
American faults involve established international law. The USMCA is three years old and this case raises its first SPS controversy. Fortunately, there are long-settled understandings in international law specific to SPS and trade obligations. For decades, panels have interpretated the World Trade Organization’s (WTO) SPS Agreement. This will inform the USMCA panel.
SPS Agreement obligations are central to the USMCA. In the new trade pact, the U.S., Mexico and Canada expressly agreed to affirm “rights and obligations” from the SPS Agreement. Numerous tribunals have ruled on disputes about the SPS Agreement. They’ve examined food safety measures and impacts on trade in food and agriculture, similar to gripes concerning Mexico’s Decree.
Both sides refer to panel reports from SPS cases. Reports are like court opinions. The U.S. cites over 40 reports, including 16 from the highest level, the WTO’s Appellate Body. Mexico references nearly50 and 23 from the highest level. The U.S. problem : it excludes important legal aspects from these reports.
One omission regards what is called the “appropriate level of protection” (ALOP). The USMCA uses the WTO definition for ALOP: the “level of protection deemed appropriate” by the country establishing a measure to protect human life.
The U.S. gets it wrong in terms of what this level can be and who determines it, to then say Mexico inadequately defines it. Mexico is clear that for human consumption of GMO corn, its ALOP is “zero risk.”
The U.S. may not like this, but it is legal under trade rules. This is irrefutable. In 1998, the Appellate Body found “zero risk” is permitted for an ALOP. This comes from a controversy between Australia and Canada over salmon imports. In the corn dispute, the U.S. refers to the case but not to its sections approving “zero risk” levels.
This is forgetful lawyering. Trade law treatises describe “zero risk” as a settled option and interpreted as such by later trade panels. Like legal encyclopedias, treatises summarize how legal doctrine develops, based on new rulings. Attorneys and judges use them to identify how courts and panels interpret legal rules. For ALOP, American lawyers fail with the basics.
The US underplays who actually determines the ALOP. Mexico does, according to the USMCA. Trade rules are explicit that countries in situations like Mexico have wide discretion to determine the ALOP. This is “unambiguous.”
Prior cases are clear. In 2008, the Appellate Body said a country employing a food safety measure has the “prerogative” to determine the ALOP. This involved an American challenge to European Union (EU) controls of hormones in beef.
Second, the US exaggerates requirements in evaluating food safety, called “risk assessment.” Risk assessments are “evaluation[s] of the potential for adverse effects on human health.” This definition comes from the SPS Agreement and is incorporated by the USMCA. Mexico’s assessment is titled the “Scientific Record on Glyphosate and GM Crops” published in 2020 and available since then online from the National Council of Humanities, Sciences and Technologies (CONAHCYT).
The U.S. overstates what is legally needed, to then characterize Mexico’s assessment as “incoherent and inadequate.” WTO cases find that risk assessments must only establish a “potential” for adverse effects. The Appellate Body confirmed this standard in the US’s first challenge of EU controls for hormones in beef in 1998.
The standard has staying power. Ten years later, the tribunal re-affirmed this requirement in the U.S.’s second trade case against beef hormone regulations.
The standard is a fixture of SPS doctrine. Recent treatises explain that for risks in human food, trade rules are deferential to SPS measures since “protection of public health is at stake.”
In its legal filing, the U.S. demands far more than is legally necessary. It calls for excessive proof. This includes “estimates of hazard, exposure, or risk” and “levels that can cause” adverse effects when eating corn. It faults Mexico for not proving that imported GMO corn “presents unsafe levels of glyphosate residue.” These are a few examples that veer from what international trade law actually requires.
SPS cases on risk assessments further undercut American positions. In the first beef hormone controversy, the Appellate Body explained that food safety measures must have a “rational relationship with the risk assessment” and that risk assessments must “reasonably support” this food safety measure. This U.S. must have missed these trade rules, since it asks for significantly more from Mexico.
Emotionally, the U.S. presents criticisms of GMOs as fringe and unacceptable. The filing says that scientific evidence provided by Mexico only “distract[s] from prevailing scientific opinion.” This is demeaning.
Trade rules are more based on reason. They do not require SPS measures to reflect majority scientific opinion. Lawyers for the U.S. should know this. In the first fight over beef hormones, the report explained that assessments do not need to “embody” the “view of a majority” of the scientific community. Then with a second American try, the Appellate Body added that scientific support is acceptable as long as it is “considered to be legitimate science.”
Where does this take us? With legal lapses in several areas, the U.S. should try to resolve its gripes with Mexico versus pursuing fruitless disputes. The commercial reality is U.S. corn exports to Mexico have dramatically increased since the Decree.
Be careful what you ask for, when it comes to trade rulings. It is 2024 and trade lawyers for the U.S. eerily face the same legal questions from 1998 and 2008. Then they concerned American beef exports. U.S. lawyers should re-read those rulings. Trade law is clear on ALOP and risk assessments. American farmers don’t need another trade loss, they need better legal advice.
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Mexico GM Corn Case Update: U.S. Assertions Rebutted by Civil Society Experts
The U.S. position in support of corporate interests is stuck in a mythical past, when massive agribusiness claimed their products would save family farmers without harming consumers or the environment—claims we know are false. Mexico is taking a different approach to create greater resiliency and healthier alternatives that meet public demand.
May 09, 2024
The trade dispute over Mexico’s limitations on genetically modified (GM) corn and glyphosate continues to unfold. On April 30, the U.S.-Mexico-Canada Agreement (USMCA) Secretariat published the U.S. rebuttal to Mexico’s comments published in March. Much of what’s in that analysis repeats previous U.S. comments, arguing that Mexico has violated the terms of the agreement and has failed to offer scientific evidence that GM corn and herbicide residues present potential dangers to Mexican consumers.
Civil society groups, many of which have made official submissions to the trade panel on the case, offered some responses to the issues raised in the lengthy statement by the U.S.
Does the U.S. refute the science presented by Mexico?
The U.S. claims that Mexico failed to produce scientific evidence to back its restrictions on the use of GM corn in tortillas. However, Mexico presented many important studies in its submission. The U.S. neglected to address many of these studies in its response.
“There are a dozen references in the U.S. rebuttal to papers published in industry-friendly journals by scientists whose work has been funded for years by GMO seed and pesticide companies,” notes pesticide expert Charles Benbrook, who co-authored a detailed submission to the panel by Friends of the Earth. “Their work draws heavily on cherry-picked data the companies chose to provide these analysts. The absence of any reference to, or discussion of, the dozens of credible, high-quality papers supporting points made in the Mexican submission, including several pointing to possible human food safety issues with genetically engineered (GE) corn, is strong evidence that the U.S. response is a political document, not a scientific one.”
“There are a dozen references in the U.S. rebuttal to papers published in industry-friendly journals by scientists whose work has been funded for years by GMO seed and pesticide companies.”
“The U.S. government still fails to take seriously the evidence Mexico has provided showing ample cause for its precautionary restrictions on GM corn in its tortillas,” said IATP’s Timothy A. Wise of the U.S. response. “Mexico justifiably wants scientific evidence that GM corn with glyphosate residues is safe to eat for Mexicans, who consume 10 times the corn we do in the U.S. and do so not in processed foods but in minimally processed foods. The U.S. has provided no such evidence.”
Nor does the U.S. government take seriously the science showing risks to native corn biodiversity from GM corn varieties, according to Mercedes López of Regeneration International. “The U.S. claim that ‘The prohibition of corn for tortillas and the gradual substitution of Mexico are not ‘related’ to the conservation of an exhaustible natural resource’ is totally false. Mexico is a center of origin and constant diversification of corn. It is a product of the biodiversity of hundreds of generations. The possible planting of genetically modified corn and the import of GM corn for staple foods would threaten that biodiversity and endanger the millions of people who consume corn.”
Does the U.S. have the right to claim “reasonable expectation” of GM corn exports?
The U.S. response also makes the case that U.S. producers have suffered damages from Mexico’s limited restrictions on the uses of GM corn in tortillas, even though there is little evidence it has affected many U.S. producers. U.S. officials now claim that Mexico’s decree violates the trade agreement because it threatens future expected exports, a theory debunked by IATP advisor and trade attorney Sharon Treat.
“The USMCA text affirms each country’s rights to honor its legal obligations to Indigenous communities. Mexico has many such commitments in Federal law and the Constitution. Now in its rebuttal, the U.S. argues that even if Mexico’s actions are justified under the Indigenous rights provision, Mexico hasn't proved that its actions don't amount to a ‘disguised restriction on trade.’ The U.S. argues that exporters had a ‘reasonable expectation’ that Mexico’s rules would never change. Contrary to the U.S. contention, the text simply does not say that the status quo at the time the trade agreement was signed could never be altered. The Indigenous rights provision specifically protects Mexico’s authority to adopt new measures to honor its obligations” says Treat, who coauthored a joint submission to the tribunal on Indigenous rights to GM-free corn with the Rural Coalition and the Alianza Nacional de Campesinas.
The U.S. rebuttal is stuck in a mythical past, when massive agribusiness exports would supposedly save family farmers from low prices. That hasn’t worked in the U.S. or in Mexico. Mexico is taking a different approach to create greater resiliency and healthier alternatives that meet public demand. We should be learning from their experience rather than trying to disrupt it.
See IATP’s resource page on the dispute, where you can read the submissions from Mexican, Canadian and U.S. NGOs.Keep ReadingShow Less
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