An international fight grows over corn. The United States claims that México’s ban on genetically modified (GMO) corn violates the United States-Mexico-Canada Agreement (USMCA). México prohibits GMO corn for human consumption. American arguments focus on Sanitary and Phytosanitary (SPS) measures, covered in Chapter 9 of the USMCA. A trade panel will review these.
This Essay first describes SPS arguments and relevant trade rules. The United States’ complaints emphasize that México’s ban is excessive, is not consistent with international standards, and mishandles risks. Second, the Essay identifies the obstacles American positions face: weak mandates and deference to México. Chapter 9 of the USMCA does not require conformity with international standards or risk assessments. Rather, it only requires that México consider these standards and risks. Plus, Chapter 9 defers to Mexico’s determinations on food safety, which are labelled the “appropriate level of protection” under USMCA and World Trade Organization (WTO) rules. The panel will defer to the level set by México and then evaluate American complaints on standards, trade restrictions, and risks. The upshot: the USMCA is not the clear free trade answer the United States seeks. Because of this, it should pursue resolution versus fruitless legal conflict.
Introduction
Corn feeds a fight between two neighbors, the United States and México. A great deal is at stake in this conflict. Last year, the United States was the world’s largest producer and exporter of the grain.1 México is the largest buyer of American corn, with import volumes rising recently.2 Corn (maíz) is essential to most meals in México and is a vital part of México’s national culture. International trade law mediates this dynamic, securing México as a dependable corn buyer since the North American Free Trade Agreement (NAFTA) took effect in 1994.3 This dynamic continues with the United States-Mexico-Canada Agreement (USMCA), an update to NAFTA from 2020.4 Given their proximity and cooperation, the neighbors should be happy.
But agricultural exports sow conflict. The stress points are multiple. One is dependency. Nature binds producers to the land and, simultaneously, eaters depend on farms for basic food items. Neither can easily change their course. Second, competition breeds pressure. Recent data shows Brazil will surpass the United States as corn’s largest exporter.5 Third, stresses sprout into controversies whenever food imports are banned. For exporters, the big fear is losing overseas buyers. The United States is no stranger to this. Trade law is its go-to sword in these battles, evident in protracted disputes in the World Trade Organization (WTO) in 1998 and 2008 over beef hormones and in 2006 over biotechnology.6
Positions are now cast in an international dispute over corn. In 2023, the United States invoked a trade panel7 after México banned genetically modified (GMO) corn in a Decree8 from February of that year. GMOs refer to a farming method that inserts genetic material from another organism into the seeds of a crop.9 For corn, seeds are engineered to make them more resistant to herbicides like glyphosate.10 Capitalizing on this, GMO farms need less human labor to tend crops. The Decree sparked immediate anxieties since most American corn is GMO.11 The United States argues that GMO corn is safe, that science proves this, and that México unfairly closes itself to free trade in corn, which the USMCA guarantees.12
In August, a USMCA trade panel began reviewing this controversy.13 The dispute specifically regards México banning GMO corn for human consumption. This effectively outlaws GMO corn imports, if they are destined for human food, but it only bans corn used in tortillas or dough (masa).14 The Decree expressly says GMO corn for animal feed and for industrial use remains legal.15 Since México is already self-sufficient in corn for human consumption, it argues the Decree does not impact United States imports.16 Moreover, the United States does not really grow corn for human consumption.17
México passed the Decree citing human health, biodiversity,18 and food security justifications. It points to cancer risks from herbicides, like glyphosate, needed in GMO farming.19 Plus, corn is the major source of calories for all Mexicans. Accordingly, the Decree is a food security measure guaranteeing domestic supply.20
The United States’ legal arguments emphasize Sanitary and Phytosanitary (SPS) measures governed by Chapter 9 of the USMCA.21 SPS focuses on food safety.22 SPS rules have the basic objective of balancing trade in food and agricultural products with a country’s sovereign right to protect human, animal, or plant life and/or health in their territory.23 Said simply, Chapter 9 and international SPS rules provide the means to stop food imports24 if a country employs measures based on science and if they take the required procedural steps to enact these measures.25 This is a significant exception to free trade. SPS provisions like in the USMCA, offer countries concrete and negotiated ways to stop imports, and they are common in most international trade pacts.26 International SPS rules have frustrated American exporters before, most notably in disputes over beef and biotechnology exports to the European Union (EU).27
This Essay both explains and predicts.28 It explains that the United States makes three types of arguments, regarding excess, inconsistency, and risks. 29 In terms of excess, the United States claims the Decree has excessive commercial impacts and unnecessary protections.30 For inconsistencies, the United States argues that the ban is not based on international food safety standards and is not based on scientific principles.31 Commenting on risks, the United States claims that the Decree was not developed with an evaluation of associated risks to food safety.32 The United States also argues that it did not have an opportunity to comment on any evaluation.33
This Essay predicts that international SPS rules pose two significant challenges34 for the United States’ positions: weak mandates35 and deference to Mexican determinations.36 SPS rules do not require conformity. Article 9.6 only requires that SPS measures be “based on”37 things like international standards or scientific principles. Furthermore, México is the one that determines the level of food safety protection within its borders. The panel will defer to this determination. More precisely, Chapter 9 affirms that México sets its “appropriate level of protection” (ALOP).38 Put simply, the Decree does not need to conform to standards and science, and México sets its level of food safety protection for the Decree.
American perspectives on the Decree do not fully appreciate México’s discretion to employ food safety measures, provided by Chapter 9 and SPS doctrine. Over decades, WTO disputes have shaped this doctrine with rulings over similar food safety controversies. They involved equivalent rules on excess, inconsistency, and risk evaluation.39 The established principles of this doctrine provide the best guidance for how the USMCA panel will examine the Decree. Put more simply, this established set of international trade rules offers the clearest indication of the legal obstacles United States’ positions will face.
The explanations and predictions set forth herein are extremely important now, even as the trade panel has not held hearings yet. The panel will produce a report addressing technical matters intrinsic to SPS rules. This focus on SPS should be understood by trade observers, policymakers, and advocates for food security, farm exports, biotechnology products, and the environment.
This Essay’s scholarly perspective on trade law offers much needed illumination. It helps observers understand that the contest is framed by SPS rules on issues like risk evaluation, consistency with standards, and levels of protection. This is the legal reality, even if divergent perspectives on science, food safety, agriculture, or food security fuel the tensions. An appreciation for SPS rules aids in following the dispute. This is not easy. Trade disputes over food issues can be prolonged and irresolute. For over two decades the United States and Canada have fought over dairy imports,40 and the European Union and United States controversy over beef was longer.41
In simple terms, this Essay shows how trade agreements contain significant exceptions to free trade. Based on these exceptions, countries develop important policies. International trade contests are increasingly about similar exceptions. They involve policies sourced in national security42 or sustainability, like tax credits for electric vehicles, renewable energy regulations, and climate policies.43
The dispute over GMO corn involves highly technical areas of law: SPS rules and the USMCA. Trade law is very specific, with expertise typically limited to attorneys versed in international arbitration or treaty negotiations. SPS is even more circumscribed, understood by experts in public health or trade in food, animals, and plants. The USMCA44 is the most niche, barely three years old.45 With this in mind, it is misguided to see the GMO corn dispute as just about the science on GMO safety or just about free trade.
Chapter 9 and SPS rules have been at the center of legal controversy ever since the United States threatened to invoke a panel.46 This progressed with the United States’ written submission, something like a legal complaint, 47 and the dispute continues with México’s reply and input from Canada and interested non-governmental entities.48 SPS rules will fuel the dispute’s later stages: panel hearings and panel reports. A final panel report, providing legal and factual findings, is expected by November of 2024.49 It can find México’s Decree is consistent or inconsistent with the trade agreement.50 If it finds inconsistencies, the report provides a basis to negotiate a settlement between the United States and México. If that fails, the United States can seek sanctions to motivate México to comply with final report findings.51
To illuminate the vital role SPS plays, this Essay explains and predicts in four parts. Part I describes the basics of international SPS rules, Chapter 9 of the USMCA, and the challenges they pose to American positions.52 The challenges are weak mandates and deference to México. Part II summarizes claims that the Decree has excessive commercial impacts and unnecessary protections.53 Focused on inconsistency, Part III presents arguments that the ban is not based on international food safety standards and is not based on scientific principles.54 Part IV discusses transparency and risks.55 In each part, the Essay predicts where American arguments are weakest in light of international SPS doctrine. A Conclusion emphasizes that these obstacles should encourage the United States to seek a resolution in this dispute.
I. Arguments Focused on SPS (Exceptions to Free Trade)
A. Basics of the Dispute and SPS Rules
Officially the GMO corn dispute is titled “Mexico – Measures Concerning Genetically Engineered Corn (MX-USA-2023-31-01).”56 México is listed first since it answers complaints, as the responding party, that its actions are inconsistent with the USMCA.57 The United States is the complaining party58 and Canada is a third party, siding with American reasons for invoking a panel. This classification refers to the year that the panel was formed, the USMCA dispute chapter, and the number of the controversy, respectively “2023-31-01.”59 Most arguments in this dispute focus on Chapter 9 and SPS measures.60 The chapter functions as an exception to the market access guaranteed in the USMCA for other goods and services.
These carve outs apply to SPS measures, defined as “protect[ing] human, animal, or plant life or health.”61 Chapter 9 states that parties have the right to adopt these measures, provided that they are “not inconsistent with” chapter provisions.62 The chapter applies to “all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.”63 Its provisions set the parameters for how the three parties agreed SPS measures will be permitted and developed. This is overwhelmingly aspirational, focusing on relationships between the three. Chapter objectives include: to “strengthen communication,”64 “enhance transparency . . . and understanding,”65 “encourage . . . science-based international standards,”66 and “advance science-based decision making.”67 They look forward and point to an ideal understanding. Most chapter provisions are not concrete rights that the USMCA affords to the United States, its exporters, the two other parties, or their exporters. Instead, Chapter 9 sets the stage for what is expected of SPS measures that México, the United States, and Canada enact.
For many reasons, WTO SPS doctrine provides the best indication of how the USMCA GMO corn panel will rule. The USMCA builds on this doctrine, specifically the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).68 WTO SPS doctrine is well-developed, addressing trade disputes for nearly three decades. As described below, for SPS matters, WTO rules and USMCA rules are identical, or nearly identical, regarding the legal arguments directed at the Decree. Moreover, there is no prior jurisprudence involving the USMCA and SPS matters. A ban on GMO corn in human food provides the first dispute examining Chapter 9.
More importantly, Chapter 9 incorporates a great deal of the SPS Agreement. Its objectives include to “reinforce and build upon the SPS Agreement” plus it expressly affirms rights and obligations from the SPS Agreement.69 It refers to SPS Agreement definitions.70 Chapter 9 continues basic principles from the SPS Agreement. One is that a party has the right to implement SPS measures.71 Also, complaining parties have the burden of proof to show inconsistency with treaty obligations by the party adopting the measure.72 Lastly, SPS measures must have a scientific basis.73 The SPS Agreement requires measures be: “based on scientific principles,” supported by scientific evidence,74 and based on a risk assessment.75
The USMCA continues the SPS Agreement’s encouragement and incentivization that measures be based on international standards.76 More specifically, both agreements explain that parties benefit from common SPS measures that are based on international standards or guidelines or recommendations from relevant international organizations.77 For the sake of brevity, this Essay refers to the three as “international standards.” Regarding food safety, the international organization is the Codex Alimentarius Commission (Codex) “relating to food additives, . . . pesticide residues, contaminants, [and] methods of analysis.”78 It is comprised of participation from two United Nations organizations: the Food and Agriculture Organization (FAO) and the World Health Organization (WHO).79 Standards, guidelines, and recommendations are non-binding when prepared and enacted by the Codex but become “quasi-mandatory” for WTO members by the SPS Agreement.80 With a similar structure and language to this WTO agreement, Chapter 9 continues encouraging measures based on international standards.
B. Obstacles from SPS Doctrine: Weak Mandates and Deference to México
American positions face serious legal obstacles from SPS doctrine developed in WTO disputes and incorporated by Chapter 9. Challenging México’s Decree on GMO corn, the United States’ arguments focus on Article 9.6. This article seeks to ensure that SPS measures are crafted within expected parameters.
Article 9.6 provisions and SPS doctrine point to two kinds of stumbling blocks for American claims: weak obligations and deference to Mexican perspectives. Specifically, Chapter 9 does not mandate compliance and defers to México’s determinations on food safety. The chapter and Article 9.6 only pose lax requirements.81 They often do not require conformity. For instance, Article 9.6 only requires that SPS measures be “based on” international standards.82 It also requires that they be “based on” scientific principles.83 And it only mandates “tak[ing] into account” scientific evidence.84 These relaxed requisites effectively only ask México to consider; there is no mandate to conform or to follow international standards or scientific principles. Similarly, there is no obligation to follow or to incorporate scientific evidence. Put simply, Chapter 9 often only calls for México to regard or take note of standards, principles, and evidence. This is entirely different than obligating México to comply, conform, or follow.
American positions are most likely shortsighted, since they overstate what the trade pact requires. They paint Chapter 9 as a series of obligations and mandates, especially in the relationship between food safety measures and international standards and between food safety measures and scientific principles. The trade pact does something very different. Article 9.6 demands far less, evident in the wording of its provisions and established SPS doctrine.
Chapter 9 poses another obstacle for American arguments: México determines the level of food safety protection, and the panel will defer to this determination. In various provisions, the chapter affirms that México sets its ALOP.85 ALOP is “[t]he level of protection deemed appropriate by” the party “establishing a[n SPS] measure to protect human . . . or plant life or health within its territory.”86 ALOP is often referred to as the “acceptable level of risk.”87 In terms of GMO corn, México established a measure, the Decree, to protect humans and plants inside Mexican territory.88 This is done by banning GMO corn for human consumption, whether the corn is produced domestically or overseas.89
The dispute panel will incorporate Mexican determinations when evaluating if the Decree is inconsistent with Article 9.6. This deference extended to the ALOP is generous.90 SPS doctrine regards ALOP as a prerogative for parties when they enact SPS measures.91 So much so that once the existence of a risk is established, a party can choose its own level of protection as “zero risk.”92
Specific to the United States’ arguments, México’s ALOP qualifies many Article 9.6 requirements regarding international standards,93 trade restriction,94 and risk management.95 This means that the panel will defer to Mexican determinations about human safety and eating GMO corn as it evaluates the Decree. In more concrete terms, a panel will first identify Mexican positions on food safety and GMO corn, and then assess any inconsistency with Article 9.6. México’s ALOP will be the basis to then review if the Decree is based on international standards, if it decreases too much trade, and how México manages risks.
Article 9.6 mandates deference to México’s ALOP.96 Mexican, not American nor international, determinations on food safety will be used to examine the ban’s relation to standards, its impact on exports, and how to manage health risks. Put simply, ALOP, a central feature of Chapter 9 and SPS doctrine, poses significant difficulties for American claims.
In conclusion, there are two kinds of legal hurdles in the USMCA: weak mandates and deference to ALOP. They point to what the USMCA actually requires. Contrary to popular assumptions, Chapter 9 is not a series of obligations to comply with determinations from the United States or international organizations.
Next this Essay describes core arguments, focused on Article 9.6, that the Decree is inconsistent with the USMCA. Then it points to the specific difficulties in winning these claims. Six American arguments are grouped into three parts. They address excessiveness for commerce and health protections; inconsistency with recommended international standards and science; and risk evaluation.
II. Commerce and Health: Excessive Impacts and Protections
A. Hurts Exports: “More trade restrictive than required”
The first American argument focuses on the commercial impacts of banning GMO corn for human consumption. In terms of trade rules, the United States claims that the Decree is more trade restrictive than required, referring to Article 9.6.10.97 In essence, the assertion is that a food safety measure has excessive negative consequences to trade, meaning the ban results in too much of a decrease in GMO corn imports from the United States.
Article 9.6.10 poses two hurdles to win this argument regarding how a trade restriction is measured and how it is defined.98 México greatly influences how the restraint on commerce is measured. The article prohibits trade restrictions if they are excessive in relation to the SPS protection needed.99 It describes this as “the level of protection that the Party has determined to be appropriate,” i.e. ALOP.100 Importantly, México sets this level of protection for human health that it finds appropriate. Based on this, México enacts a measure that bans one type of corn for human consumption. The measure in question is the Decree that only impacts corn for masa or tortillas and does not impact corn in animal feed or industrial use.101
Then, relative to this degree of protection, commercial consequences are examined. Article 9.6.10 does not allow for the United States to argue that there are excessive trade restrictions based on the kind of protection to human health that it wants. Instead, Mexican concerns for human health frame the legal analysis. The initial focus of the examination is not on the commercial consequences. The starting point of analysis is a Mexican determination, i.e. ALOP.
Furthermore, Article 9.6.10 specifically defines what is “more trade restrictive than required.”102 It says that to be “more trade restrictive than required” there needs to be an alternative measure available that does three things: achieve the same ALOP, be reasonably available, and restrict less trade.103 Put more simply, for a panel to find there is too much trade restriction because of the Decree it must find an alternative is viable, and it provides the same food safety benefits.
International SPS doctrine confirms this three-part test in multiple disputes. For an SPS measure to be “more trade restrictive than required” the alternative must: result in “significantly less” restriction; be reasonable given technical and economic feasibility; and achieve the ALOP. For over two decades, international trade panels have ruled that an alternative to the existing SPS measure must meet all three factors.104 Looking at trade restrictions and food safety measures, SPS Agreement and USMCA requirements are similar.105
This creates enormous legal obstacles. For the United States to win this argument, an alternative to the Decree must exist. This alternative must do three things: achieve the same level of protection as banning GMO corn in human food; be reasonably available in technical and economic terms; and result in much less trade restriction. In sum, it is doubtful that the United States can win this argument by simply pointing to how the Decree leads to less imports of GMO corn.
B. Not Needed: Beyond the “Extent Necessary”
Second, the United States argues that there is no need for the Decree. It points to Article 9.6.6(a), which requires SPS measures should be “applied only to the extent necessary to protect” human life or health.106 Here, presumably, the American claim rests on GMOs being safe to human health and banning them is not needed.
To win this, the United States must overcome the ban’s limited scope.107 The Decree only applies to GMO corn in masa or tortillas.108 The ban does not touch GMO corn in animal feed or used for industrial applications. Since the prohibition impacts a minute part of corn imports, the United States will have to prove there is no food safety benefit from the measure.
III. Recommendations: Inconsistent with Standards and Science
A. Not “Based on International Standards” for Food Safety
For its third argument, the United States emphasizes recommendations from international organizations. Specifically, the claim is that the Decree is not based on international food standards, as required in Article 9.6.3.109 These claims receive the largest part of attention in the United States’ first submission to the panel.110 Article 9.6.3 requires111 measures be based on international standards.112 The United States bears the burden of proving México did not base its Decree on these standards.113
These claims face two important obstacles regarding the standards themselves and their weakened role in international SPS doctrine. In particular, international standards do not offer a definite position on banning the consumption of GMO food items. Plus, international standards are not binding or mandatory since they merely suggest what governments can do. This norm is confirmed by decades of SPS disputes in the WTO.114
1. The Standards are Vague and Outdated.
Chapter 9 explains that the Codex provides standards for food safety.115 The Codex does not offer clear standards for evaluating measures addressing human safety specific to consuming GMO corn. It suggests even less guidance for glyphosate, pointing to positions on the chemical in crops from 2006 or earlier.116 The Codex has been criticized as subject to excessive input from the food industry and to non-scientific influence.117
The Codex vacillates between affirming that governments are free to develop their own GMO regulations and pointing to its non-binding general guidance. Answering “does Codex develop standards for GMOs?,” it sides with national control.118 It explains that governments are “free to adopt [their] own policies” and “own regulations,” plus “there are no internationally-agreed recommendations” on GMO labelling.119 But the Codex also points to the utility of its general suggestions. Governments “can use” its standards as a “basis” to develop food safety regulations.120 This includes “principles and guidelines to assess food safety.”121 In sum, the Codex does not provide clear and definite statements on the safety of consuming GMOs or on banning this consumption. Instead, it suggests how to evaluate food safety.
Accordingly, the United States raises Codex standards on risk analysis and on food safety assessments. They offer general suggestions for evaluating food derived from biotechnology122 and from recombinant-DNA plants,123 respectively.
These standards are outdated for this dispute. The Codex states its latest modification for its standard for food derived from biotechnology was in 2011 and in 2008 for food derived from recombinant-DNA plants.124 Significant for the Decree, both standards predate findings from a WHO agency in 2015 that glyphosate is a likely cause of cancer.125 They precede a series of rulings by American courts, finding glyphosate is likely to cause cancer.126 The judgements continue—nine years later.127
These standards, cited by the United States, offer basic suggestions. They emphasize comparing food from GMO and non-GMO plants.128 Risk assessment should obtain information from a “variety of sources” not limited to regulatory agencies or the developer of the food item.129 Such assessments should look at “all available scientific data and information” provided they are from “scientifically sound procedures.”130 This includes “potential accumulation of pesticide residues,”131 something important given the Decree addresses food safety risk from glyphosate.132
Standards raised by the United States may actually favor the Decree. They suggest that information in risk assessment should come not just from American sources or from GMO seed producers. There is ample space to refer to scientific studies finding GMO corn or glyphosate are not safe.133 In short, the Codex standards on their own do not suggest that the Decree is not based on the source collection or methods indicated in assessing biotechnology or recombinant-DNA plants.
2. Conformity with the Standards is Not Required.
Next, SPS doctrine is clear in determining that international standards are not binding on parties when they develop SPS measures. This comes from a series of international disputes on food safety, examining WTO obligations that are nearly identical to their counterparts in the USMCA.134 Both, SPS Agreement Article 3.1 and USMCA Article 9.6.3, require parties “shall base” SPS measures on international standards.135 The only difference between the two articles actually favors the Decree and México. The USMCA indicates that ALOP limits the relevancy of any international standard.136 Because of this, the level of food safety determined by México then sets the stage for deciding what international standards are relevant.
International standards are not binding when parties establish an SPS measure.137 A requirement that measures be “based on” international standards does not require conformity.138 The SPS Agreement does not make non-binding Codex standards binding.139 The same is true for Chapter 9 of the USMCA because it affirms rights and obligations from the SPS Agreement, belonging to México, the United States, and Canada.140
In conclusion, it will not be easy to prove the Decree is inconsistent with Article 9.6.3 for two reasons. The international standards themselves are problematic, being vague on the safety of GMOs, at times outdated, and at best only providing guidance on how to test food safety. Next, international trade doctrine confirms that SPS measures should be based on Codex standards. This does not mean conforming to any international standards or that these standards are binding by virtue of a trade agreement.
B. Not “Based on Scientific Principles”
Fourth, the United States avers that the ban is out of step with science. This refers to Article 9.6.6(b) which requires food safety measures be “based on relevant scientific principles.” 141 For this, the United States emphasizes that the Decree is not based on scientific principles, explaining that the measure is not based in international standards or not based on a risk assessment.142 The United States does not raise specific scientific principles that the Decree must be related to. Instead, the implication is that inconsistency with Articles 9.6.3 for standards and 9.6.8 for risk assessment are enough to find no basis in scientific principles.
This conflation does not make sense and, if anything, is wrong. Scientific principles, international standards, and risk assessment are quite distinct from each other. They require different things and seek different objectives. They are either law or rules for science, guidance from an international organization, or an identification and evaluation of risks that the SPS measure addresses, respectively.
IV. Addressing Risks: No Evaluation and No Transparency
A. Plans for Risks: no “Risk Assessment and Risk Management”
The United States’ fifth argument regards risks, more precisely how they are identified and managed, referring to subsection 8 of Article 9.6.143 It requires two separate things when enacting an SPS measure, to conduct: risk assessment and risk management.144 “Risk assessment” examines scientific and potentially economic adversities created by a food safety measure.145 Relevant to GMO corn, this includes contaminants and toxins or disease-causing organisms in food.146 “Risk management” refers to policy choices after the risk assessment.147 Risk assessment is more scientific, more economic, and unconcerned with policies. Importantly and more policy-focused, risk management opens the door for societal values or consumers’ preferences supporting the Decree.148 Risk management is a recent innovation in SPS obligations, pushed by the United States in its negotiations over the failed Trans-Pacific Partnership Agreement and included in the USMCA.149
For a few reasons, it is unclear if the obligations in Article 9.6.8 relate to the ban. American arguments referring to these provisions are brief and not fully developed, barely two pages out of ninety-five in the United States’ initial submission.150 Plus, the wording of Article 9.6.8 itself is vague. Its sub-parts require: (a) being “appropriate to the circumstances” and “tak[ing] into account the available relevant scientific evidence” and (b) considering “relevant guidance” from the WTO SPS Committee and international standards.151 It is not clear if risk assessment and risk management must meet the requirements of both sub-parts. Sub-part (a) only refers to “risk assessment” and not risk management. Presumably then, its requirements of appropriate circumstances and considering scientific evidence do not apply to risk management. This implies that México’s policy choice to outlaw GMO corn is not limited by what is appropriate and what scientific evidence takes into account.
Regardless, international SPS doctrine points to three clear difficulties American claims must overcome: that conformity with the assessment is not required, risk assessments for food safety are less strict, and risk assessments can rely on conclusions from a minority part of the scientific community.
1. Conformity with Risk Assessment is Not Required.
The results of a risk assessment must only be loosely followed. Both the SPS Agreement and Article 9.6.8 do not require that an SPS measure conform with a risk assessment.152 For México, this means that there is no USMCA obligation that the Decree comply with the scientific identification and evaluation of what risks GMO corn poses. Both trade agreements state that measures must be “based” on risk assessment.153 Mandates are to base and do not include anything more strict, such as to follow, conform, or comply.154 In this light, SPS doctrine only requires measures to have “a rational relationship” with the risk assessment, and this assessment must “reasonably support” the measure.155 In sum, it’s off-the-mark for American claims to presume the Decree must conform with any risk assessment.
2. For Food Safety, Risk Assessments are Less Demanding.
The next legal impediment is specific to food and risk assessments. In trade disputes about SPS measures, there are two types of risk assessments: risks from pests or diseases and risks from “food-borne risks.”156 Risk assessments for food can be less demanding.
Risk assessments for food can show less of a relation between the risk and human health. In examining risks to human health from food, risk assessments establish the “potential” for adverse effects.157 It is different for measures directed at pests or disease, which identify the “likelihood” of these effects.158 “Potential” is a less strict standard than “likelihood.”159 This norm is based on multiple WTO disputes.160 For food safety measures, a requirement to establish potential risks is less demanding than establishing the likelihood of risks.
Rulings in SPS disputes make this clear distinction because risks directed at humans are a greater concern than risks from pests or disease.161 Thus, measures directed at risks from food can impose stricter requirements, compared to measures aimed at pests or disease.162 As such, for a government using a measure to protect what people eat, it must find less of a risk of danger compared to pests or disease. In sum, neither potential risks, nor the likelihood of risks, require certainty. Plus, Mexican positions on the Decree will be more convincing if health risks from GMO corn are identified as a potential occurrence.
3. Risk Assessments May Rely on Scientific Perspectives That Are the Minority.
Lastly, risk assessments may incorporate scientific positions that México will likely raise, even if American policy or international organizations disagree with these positions. Risk assessments may incorporate scientific opinions that are not the majority perspective.163 Risk assessments are not bound to only follow scientific consensus. This is a problem for American and pro-GMO stances, which usually contend that GMOs are undoubtedly safe.164 Decades of scientific studies establish the contrary: GMOs pose many risks.165
Multiple rulings on the SPS Agreement confirm this openness, for where the information comes from and how it is produced. There is no requirement that the information “reflect the majority view within the scientific community,” so long as the view is from a respected and qualified source and “considered to be legitimate science.”166 The assessment does not need to quantify the risk.167 In fact, quantitative methods can be “misleading” when reliable numeric data is not available.168 The assessment can present risks in qualitative, i.e. not numeric, terms.169 Chapter 9 of the USMCA affirms this.170
In sum, these three points on Article 9.6.8 offer a warning for American positions: scientific research that GMO corn is unsafe should be taken seriously. The USMCA panel will. It won’t be easily convinced by claims of consensus or a need for numeric certainty. Moreover, México benefits from a lower threshold needed for any risk assessment on food safety, e.g. GMO corn in human consumption.
B. Input from the United States: no “Opportunity” to “Comment” on Risk Assessment
The United States’ sixth argument emphasizes transparency. It says México did not provide a chance for it to give input on these risks.171 Article 9.6.7 requires México to document its risk assessment and risk management and to provide an opportunity to comment.172 This opportunity must be available to the United States and Canada.
The United States will have to overcome the possibility that México already provided its risk assessment and an opportunity. Both sides have discussed these measures. A ban on GMO corn was no surprise to American officials when México issued the Decree in February of 2023.
American and Mexican officials met for years before to discuss GMO corn, banning it, and impacts to trade. In January 2021, México announced that it was banning all GMO corn for human consumption and this would take effect no later than January 31, 2024.173 In 2023, the Decree rolled this back to just GMO corn for masa or tortillas, confirming it did not apply to GMO corn in animal feed, corn for industrial use, or to other GMO foods or crops.174 This was México’s compromise, done after a series of meetings between American, Mexican, and Canadian officials in 2021 and 2022.175 To win an Article 9.6.7 claim, the United States must prove that no risk assessment in documented form was done and that it did not have an opportunity to comment on this evaluation during meetings in 2021 and 2022.
Conclusion
The United States and México fight over a ban on GMO corn for human consumption. Popular anxieties accompany trade disputes and will bud as a panel proceeds into an election year in both countries. Supporters on both sides emphasize science. Proving that GMOs are clearly safe176 or they are dangers to humans and biodiversity.177 Both are misguided, if they expect determinations on science will resolve the dispute. Instead, the dispute panel will focus on trade rules and SPS requirements from USMCA Chapter 9.
This Essay describes American legal arguments and predicts obstacles they face. The United States’ complaints fall into three categories. The Decree violates the trade pact because: its commercial impacts and protections are excessive,178 it is inconsistent with food standards and scientific principles,179 and it mishandles risks to food safety.180
But SPS rules pose two significant hurdles: weak mandates and deference to México’s determinations. These norms are clear parts of international SPS doctrine on food safety, developed over decades.181 Chapter 9 incorporates them. First, the chapter requires that México “base” its food safety measures on various criteria, but it does not mandate México conform with this criteria.182 This severely lessens the strength of American claims on international standards, scientific principles, and handling risks. Similarly, México must “take into account” scientific evidence but is not required to incorporate it.183 At most, México must consider standards, international recommendations, and evidence but is not required to abide by them. For SPS rules, USMCA obligations are lax despite what the United States avers.
Second, the trade pact defers to México for many Chapter 9 requirements. This regards México’s determination of ALOP.184 It will be used to evaluate Decree impacts on corn imports and the relevancy of international standards. The panel will first prioritize the level of food safety México chose. It will not focus just on trade restrictions or what international organizations recommend.
Decades of SPS disputes in the WTO confirm lax mandates and deference to ALOP. The USMCA incorporates these norms as part of SPS doctrine. It includes parallel, at times identical, obligations from the WTO’s SPS Agreement. In Chapter 9, the United States, México, and Canada expressly affirmed their rights and obligations under these WTO rules and agreed that their SPS objectives are to reinforce them.185
Given these obstacles, American officials and exporter interests should seek a resolution versus continuing a long dispute. Past experiences with beef hormone and biotech exports serve as clear reminders.186 No matter what this USMCA panel says in its final report, it has less capacity than the WTO to enforce panel rulings. The political and popular reality is that México places a great deal of importance in eating corn. The same goes for the United States and exporting corn. The Decree affects a minute part of corn exports.187 American corn exports are overwhelmingly for animal feed and left alone by the Decree.
The upshot: take note of the trade rules a trade panel will use. The USMCA and SPS doctrine offer no clear path to find the ban inconsistent with trade obligations. Any path to rescind the ban is less clear. Because of this, the United States should pursue a resolution that protects corn exports for livestock and compromises on masa and tortillas. American and Mexican farmers would benefit greatly from this, far more than with the current path. As is, the dispute is a delusional chase, confused about what the USMCA requires.