A fast track to weaker food standards
Will the EU concede to the demands of US negotiators on food standards? While the EU's narrow negotiation mandate makes this seem impossible, the Commission can in fact circumvent the mandate by using other methods that make it much easier to weaken standards – and tilt voting procedures to their own advantage.
Will the European Union make trade concessions to satisfy US President Trump and thus avert the threatened high tariffs on European car exports? And will these concessions be on sensitive and publicly debated issues such as chlorinated chicken, GMOs or pesticides? Recent press statements by European Commissioner for Trade Phil Hogan and his associates have sparked fears that the European Union could start importing products once banned and deemed unhealthy or even hazardous, to appease a US President who is threatening to impose high tariffs on imports of European cars.
Commissioner Hogan reportedly said that “a long list of regulatory barriers in agriculture” could be “resolved” in an agreement, and that he was looking at “non-tariff barriers as a way of bringing agriculture issues on the table” (Politico, 23 January 2020). This followed renewed and aggressive calls, from the US Administration and the agribusiness industry, for the EU to allow more US-grown GM crops into Europe, to open up its market to chicken washed with acid, and to weaken regulation in order to allow pesticide residues in agricultural goods exported from the US.
Recently, on 19 February 2020, the Commissioner was quizzed by MEPs who wanted to know exactly what was at stake, at Trade Committee meeting in the European Parliament. Phil Hogan sounded reassuring, when he asserted that “we will not agree to the changes in our regulations that will reduce our standards across the board in terms of environment or food standards or whatever.” He stressed that negotiations unfold within the narrow confines of the EU negotiation mandate, which does not allow the Commission to agree to changes in the directives or regulations governing agricultural goods and food standards. However, the precise wording used by the Commissioner should be a cause of concern. Even if he will not agree to “changes in regulations that will reduce our standards across the board”, there is ample space for him to reduce standards in other ways. As we have seen on several previous occasions, the Commission can resort to measures that will broadly leave regulations – the actual wording of the laws – untouched, but will nevertheless actually reduce EU standards. Moreover, this can be done without any mandate, outside of formal trade talks and via procedures that strengthen the Commission's powers vis á vis EU governments, let alone parliamentarians. This ‘fast track procedure’ has been used before, and there are indications that it could be used again.
Between a rock and a hard place
High tariffs on exports to the US could hit European car manufacturers hard, and, in particular, weaken the German economy. Thus, since the threat was first made by Donald Trump in April 2018, the European Commission has made a big diplomatic effort to avoid it coming to pass. In April 2019 the Commission, and EU governments in the Council, agreed on mandates for two areas of trade talks with the US: industrial tariffs and “conformity assessments” – the latter refers to procedures to ascertain whether a product can be approved and deemed to have conformed to EU standards.
It has not become easier to find common ground with the US. Recently, US Secretary of Agriculture Sonny Perdue stated that the successful conclusion of an EU-US trade deal would depend on the EU accepting US standards on “pathogen reduction treatments,” and “maximum residue levels” on food. In other words the EU would have to concede on the infamous chlorine-washed chickens (which are common in the US, where bacteria are eliminated through such chemical rinsing, but are widely opposed in the EU) and on pesticide traces in food (many US food exports contain residues of dozens of pesticides authorised in the US, but banned in the EU). Other public statements highlighted US impatience with the EU over its alleged delay in approving GMOs.
Since then, EU officials have made repeated statements indicating a will to accommodate the US. “We are really looking at only regulatory issues that are in a way harming trade, so we’re trying to find facilitating measures that by the way have been longstanding” Commission trade official Chiara Dellapasqua said to Politico (9 March 2020). She said talks were about “length of procedures and about recognition under the food safety system”, with no specifications added. Statements have also been made by EU officials that work is underway to speed up approvals of GMOs.
Such efforts arguably contradict the existing, narrow EU negotiation mandates. There is no space within them to allow for anything near the kind of concessions being demanded by the US. However there is another tool available, one the Commission has already used on several other occasions: the power given to the Commission to implement regulations. While changes implemented this way would not necessarily amount to a lowering of standards “across the board”, they could nevertheless significantly lower standards for specific products and approval procedures.
The Commission has form in this regard. On at least two relatively recent occasions it has resorted to this approach when implementing trade policy in its dealings with the United States, and on both occasions European standards were arguably lowered.
Lactic acid and beef
The first issue occurred in 2012, when the Commission considered a demand from the US Department of Agriculture to approve a procedure whereby beef iswashed with lactic acid to reduce microbial contamination on carcasses. However a law which required EU approval when meat is cleansed by any substance that isn’t water was an obstacle. Officially changing this regulation would have taken a long time, and it would have given parliaments, including the European Parliament, a strong voice on the matter. But by focusing specifically on the approval of the use of lactic acid to wash beef, the Commission could use its powers under the relevant EU law to have lactic acid approved, ignoring warnings from consumer groups that this would dilute food safety in the EU.
Following this approach also meant that the voting rules were heavily tilted in favour of the Commission. The European Parliament was allowed to comment, but did not have the power to reject the proposal, which could only be rejected if member states could garner a qualified majority against it – as opposed to a mandate for trade negotiations where the Commission would need a qualified majority in favour of its proposal among member state governments and the approval of the European Parliament. In fact, although many member states did oppose the change, because no qualified majority was mustered, the Commission was entitled to go ahead and adopt the measure, which it did.
Soy diesel – Suddenly sustainable
The second example is more recent, and directly related to the current talks. The US has insisted that the EU import a larger quantity of soy from it, and has queried European rules on biodiesel made from soy. A statement by the then Commission President Juncker and US President Trump in July 2018 vowed to “work to reduce barriers” so as to increase trade in soybeans, among other things.
To promote US soybeans, the Commission pushed for the US standard for soy-based biofuel to be approved as ‘sustainable’. Such recognition would make the product eligible for public support – ie it could be exempted from the general EU prohibition on state aid if a member state applies to the Commission - which in turn could boost imports from the US, a major producer of soy-based biofuel. Furthermore, the rubber-stamping of soy-based biofuel would in turn see it approved to be counted towards the EU’s renewable energy targets. The extra advantage of this approach was that the Commission could push it through with no major effort; the powers delegated to the Commission under the Renewable Energy Directive to adopt ‘implementing decisions’ again required a qualified majority vote against the Commission for its proposal to be rejected, a vote set to take place between member state representatives in “the Committee on the sustainability of biofuels and other bioliquids”. A further advantage was the lack of debate, facilitated also by the speed of the process, with only two working weeks allowed as the feedback period. After that, the committee voted – apparently in a written procedure as no meeting took place in the Committee at the time of voting.
The Commission found the support it required among member state representatives, and was able to announce the decision. This was then reported by the Commission as “part of the implementation of the Joint Statement agreed between Presidents Juncker and Trump in July 2018.”
Environmental groups reacted to the decision with anger; “There is no such thing as green palm oil or soy biodiesel. Governments and oil companies thinking they’ll be able to get away with forcing motorists to burn food in the future should think twice,” said Laura Buffett from Transport & Environment.
“Biodiesel produced from US soy should be deemed too unsustainable to be sold at the pump in the EU: the Commission’s own figures say it is twice as bad for the climate as fossil diesel,” remarked Friends of the Earth Europe.
The fast track procedure
This approach to trade talks could be called a European “fast track procedure”. In the US too, there is the option to reduce parliamentary scrutiny of trade negotiations in order to speed up specific negotiations, as happened with the TTIP negotiations. The difference is that in the EU the Commission does not have to seek permission to use its own fast track procedure, unlike in the US. It is thus very easy for the Commission to implement specific concessions to US demands in the current context, while ignoring the provisions in the EU Treaty which govern trade agreements. The Commission did not have to ask for a mandate, for instance, to help promote US soy based biofuel. It did even need the approval of the European Parliament on this matter, let alone national parliaments. The Commission can use other methods, formally unrelated to trade policy, to push through its proposals via other means, thus ensuring much less public debate and parliamentary scrutiny.
This begs the question as to whether the Commission can adopt the same strategy in the context of US threats to impose tariffs on cars, should the EU not concede on ‘pathogen reduction treatment’ (chlorinated chicken), ‘maximum residue levels’ (pesticides) and GMOs, bearing in mind that the Commissioner can assert that he is not making changes in regulations that would lower standards ‘across the board’. There appears to be a number of options.
Three issues, three fast track options
As for the infamous ‘chlorinated chicken’, the issue seems to be straight forward – except it is not really about chlorine, but about ‘acetic acid’, a type of industrial acid used in the production of numerous products, for example plastic bottles and photographic film. The Commission can repeat the approach that was successful in the case of beef washed with lactic acid, and table a specific proposal to have acetic acid approved. And here, the EU has already come far.
The US Secretary for Agriculture Sonny Perdue argues that the acid used on poultry is simply vinegar. But many, including The European Consumer Organisation ( BEUC), assert that there are considerable risks associated with the use of chemicals such as peroxy-acetic acid (the acid used on poultry), including the risk of ‘antimicrobial resistance’. “The “farm to fork” approach of the EU, which has been key to achieving the high level of food safety we currently have in the EU, should be preserved and favoured over reliance on end-of-line decontamination treatments,” BEUC states in its conclusion.
The European Food Safety Authority (EFSA), which is frequently criticised for being too close to agro-food industry interests, concluded its investigation into the use of acetic acid on pork in December 2018. The EFSA panel had “no concerns for the environment”. This means it will thus not be difficult for the Commission to draft a proposal to approve its use on poultry, it seems. There is something to go on already for the Commission with a finished study on acetic acid and pork.
It will not be an uncontroversial decision. There are limitations to EFSA’s study. The authority has not, for instance, investigated the effects of the use of these chemicals on the health and safety of workers in the industry, even though this is one of the reasons why it is somewhat controversial in the US. Moreover, BEUC remarks that EFSA did not have enough evidence to conclude that peroxy-acetic acid cannot lead to anti-microbial resistance. But with a study already at hand, the time it would take for the Commission to push through an approval, is reduced. And again: should the Commission pursue this tactic to specifically allow the use of peroxy-acetic acid through an ‘implementing decision’, it could be adopted quickly: once again a qualified majority of EU member states voting against the proposal would be required to defeat it.
The implications of such an approach far transcend the question of whether the substance poses a risk to health and safety at work. It would be a further attack on the current agricultural paradigm in Europe, undermining the accepted consensus that the EU should have responsible production methods which make the use of chemicals on carcasses superfluous.
Extremely concrete work is being undertaken to explore the EU’s options for opening its market further to GMOs, and it seems to be centred on the speed of GMO approval processes. This would put the spotlight on the European Food Safety Authority, which is responsible EFSA is responsible for doing the risk assessment for GMOs in the pipeline. Here, it seems, the Commission sees an opportunity to speed things up. According to Politico (27 February 2020), an EFSA official said that “there is probably scope [for] faster authorisations at risk management level”. This means that the time for member state governments to consider approving a GMO should be shorter, which could lead to less thorough considerations, and ultimately to the release of more GMOs.
EU officials also speak of more funding for approvals, which is concerning. While there is certainly a need for more funding to secure independent assessments of GMOs, extra funding in this context means something else: quicker approval to reassure the US that more imports will be allowed in due course. In other words, there is some leeway for the Commission to figure out ways to speed up GMO approvals, without having to ask for a trade negotiation mandate.
Finally, there is the matter of pesticides. A very unique situation could provide an opportunity for the Commission to give the US a major concession without doing anything. At the moment there is a strange contradiction between the rules on the use of pesticides within the EU and the rules governing imports of goods with pesticide residues. On some substances, the EU has adopted a zero tolerance approach - a hazard based approach - which means that there cannot be any detectable residues in goods sold in the EU. However, the rules on imports are vague on this matter, and under pressure from some member states, the US and agribusiness lobby groups, the Commission has come to accept that the rules should be interpreted to allow some residues in imported goods that are not allowed in goods which were produced in the EU.
This leaves the Commission the option of simply imposing its recent interpretation of the rules on imports to please the US. Moreover it would be able to enforce such an interpretation until it is forced to do otherwise, either by the European Court of Justice or through a specific change of the regulation. This would consolidate a paradoxical situation that would undermine public health in the EU, while also putting European farmers at a disadvantage compared to their US competitors. Whether the Commission opts for this solution will soon be revealed, when a review of the import rules on pesticides is published in late March.
The risk of an even more undemocratic trade policy
Commissioner Phil Hogan and his civil servants are currently trying to use their scope to negotiate to the maximum. But even with maximum creativity he will hardly succeed in accommodating US demands to lower European food standards through the formal trade talks. This increases the risk of the Commission instead pursuing even less democratic approaches to appease the US. This development, then, is becoming a distinct challenge for campaigners working to defend and improve food safety in Europe. Not only do we risk a sell-out of EU food and public health standards to secure the export of cars, we may see it happen in a profoundly undemocratic way. It has happened before.