Biotech Food and the Precautionary Principle Under EU and WTO Law

Abstract

This article discusses the implications of the precautionary principle for the EU biotech food regulatory regime. It first briefly reviews the precautionary principle under European law and the related issues of scientific proof and the burden and standard of proof. In the next section, the precautionary principle is examined in the context of the new EU food safety policy. The fourth part reviews Commission proposals for a precautionary product liability regime. The fifth part discusses the Commission's interpretation of the principle and the proposed criteria for precautionary regulation. The sixth part addresses the implications thereof for biotech food regulation, focussing on prior authorization and testing, traceability, labeling, and substantial equivalence requirements, and cost and benefits of biotech food. In the next section, possible challenges to biotech food regulations under WTO law are discussed. The author concludes that certain rules of current and proposed EU biotech regulation are in conflict with the EU's own criteria for precautionary regulation. Accordingly, the precautionary principle would be a potential weapon to fight some current regulatory requirements and additional future regulation. Those requirements may also be inconsistent with WTO law's criteria for trade-restrictive precautionary regulation. But even where WTO law allows members to implement their own policies, the EU should not apply the precautionary principle in a self-serving, selective and one-sided way. A sound and even-handed application of the precautionary principle should focus not only on the risks of biotech food, but also on its benefits. In addition, it should compare the benefits and disadvantages of precautionary regulation to the benefits and costs of no regulation and of alternative, less intrusive measures. Indeed, precautionary regulation itself should be used with precaution.