A Bacon Dispute at the WTO? International Trade Regulation and the WHO Decision on Red Meat and Processed Meat

To the chagrin of meat-eaters worldwide, the International Agency for Research of Cancer (IARC) – the cancer agency of the World Health Organization – has just published a summary of over 800 studies, some of which decades-long, on the link between consumption of red meat and processed meat and cancer. The summary concludes that consumption of red meat is probably linked to cancer, and that consumption of processed meat is demonstrably linked to bowel cancer. Specifically, every 50 gram portion of processed meat consumed daily increases the risk of bowel cancer by a significant 18%. An average sausage weighs about 70-80 grams.

On the basis of this research, IARC experts decided to add red meat and processed meat to the list of potential cancer-inducing agents. Red meat, i.e. ‘all mammalian muscle meat, including, beef, veal, pork, lamb, mutton, horse, and goat’, was classified under Group 2A, as ‘probably carcinogenic to humans’. More worryingly, processed meat, including all red meat ‘that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavour or improve preservation’, was classified as ‘carcinogenic to humans’ (Group 1).

With this decision, processed meat now ranks together cancer-wise not only with the usual suspects against which healthcare professionals advise us – alcoholic beverages, tobacco smoking, and solar radiation – but also with less pleasant substances such as mustard gas, arsenic, and plutonium. To leave no room for doubt, the Q&A clarifies that among the new known carcinogens are ‘hot dogs (frankfurters), ham, sausages, corned beef, and biltong or beef jerky as well as canned meat and meat-based preparations and sauces’. (Surprisingly, bacon was left out of this particular clarification.)

Few people, of course, were under the illusion that these products were good for your health. However, their classification as known carcinogens has significant public health implications, which may lead governments worldwide to consider adopting measures to prevent consumption, or at least excessive consumption, of processed red meat. As with regulatory measures aimed at lowering consumption of tobacco and alcohol, we can expect the new anti-bacon measures to become the subject of international litigation under trade and investment dispute settlement.

The question of how to give weight to health and other public interest concerns under investment law is still a tricky one. Under the law of the World Trade Organization (WTO), on the other hand, I believe the issue is essentially settled: once a decision of an internationally recognized scientific body such as the IARC exists to ground policies, WTO law will in principle pose no obstacle to even-handed measures aimed at reducing consumption or even removing the product from the market entirely.

1. WTO Law and Measures for Health Protection

With regard to measures aimed at protecting the public interest, WTO rules face the challenge of balancing two competing objectives. On the one hand, WTO members must be allowed to issue and apply regulations aimed at realizing legitimate non-trade objectives, including the protection of human life and health. On the other hand, these regulations should not be applied in such a way that they, de jure or de facto, discriminate against foreign products or foreign producers. Thus, WTO rules require that members ‘put their policy where their mouth is’: if they are serious about reducing pollution, preventing youth smoking, and protecting seals, their measures must be designed in such a way that all producers are similarly affected.

In the case of food products, a second question intervenes: the requirement that restrictions be based on scientific information. Many will remember that the European Union’s bans on food products it perceived as harmful, including hormone-treated beef and biotech products, were found to be inconsistent with WTO rules. The EU was unable to produce scientific evidence of the harmful effect of the products it banned. At the same time, the amount of existing research on the topic, which failed to find harmful effects, made EU claims that there was insufficient scientific information regarding these products implausible.

Crucially, the EU was unable to produce support for its views within the Codex Alimentarius Commission – an international body, established by the FAO and WHO, to which the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) defers decisions with regard to standards, guidelines, and recommendations relating to food safety. In the case of hormone-treated beef, in a tight 33-29 decision, the Codex supported a US proposal allowing the presence of hormones in beef within certain limits. This forced the EU to provide scientific justification for its decision to apply a level of protection higher than that provided for in the Codex, something the EU was unable to do.

As regards red meat and processed meat, the relative novelty of the issue means that existing standards do not reflect the new findings. The Codex Alimentarius sets a number of standards on contaminants in foods, but it may prove difficult to approve stringent standards for products so ingrained in cultural practices as processed meat products. The question then arises of whether, and to what extent, the IARC decision may ground stringent measures aimed at discouraging consumption of these products.

2. The Legitimating Effect of the IARC Decision

WTO jurisprudence has traditionally given significant and even decisive weight to decisions of bodies such as IARC. In EC – Asbestos, the Appellate Body held that the ‘practically overwhelming’ findings of international organizations regarding the carcinogenic effect of Asbestos – with the IARC List of Carcinogenic Agents being singled out – not only justified the application of restrictive regulations on asbestos but meant that products made with asbestos fibre could not be considered ‘like products’ to otherwise substitutable products.

Assuming it is not reversed in the face of new evidence, the IARC decision produces two effects on the WTO-compatibility of sanitary and phytosanitary measures (SPS measures) aimed at curbing consumption of processed meat, affecting analysis of their permissibility under both GATT Article XX(b) and the SPS Agreement – a dispute would likely concentrate on the latter, and more specific, agreement. On the one hand, the decision legitimates regulatory measures aimed at addressing the health issues created by processed meat products (and perhaps red meat more broadly) as necessary to protect human life or health. On the other hand, it provides grounds for legitimately distinguishing between processed meat products and otherwise similar products, since the former are now a recognized carcinogen.

At the level of the SPS Agreement, the key obligations of WTO members are (i) not to apply SPS measures beyond that which is necessary to protect human, animal or plant life or health; (ii) to base their measures on scientific principles; and (iii) not to apply SPS measures in ways that discriminate or that constitute a disguised restriction on international trade. Additionally, the SPS Agreement enjoins members to strive for harmonization, by agreeing on international standards, guidelines, and recommendations. If a measure is stricter than what is required by existing international standards, guidelines, or recommendations, it must be grounded on a ‘scientific justification’, including the member’s examination and evaluation of available scientific information.

Here, the IARC decision may provide two different grounds for the adoption of trade-restrictive SPS measures aimed to curb consumption of processed meat. First, as a determination made by an international organization, it constitutes ‘available pertinent information’ for members to provisionally adopt SPS measures under Article 5(7) of the SPS Agreement. This article allows WTO members to provisionally adopt trade-restrictive SPS measures where the relevant scientific information is insufficient. Members must, however, still seek to obtain the additional information necessary for a more objective risk assessment.

Second, the IARC report provides ‘available scientific evidence’ to inform an objective risk assessment that justifies a permanent measure. The obligation of WTO members to conduct an objective risk assessment does not mean, of course, that each member must individually conduct a decades-long research to ground any health measures. Rather, it means that the member’s evaluation of the potential harmful effects ‘arising from the presence of additives, contaminants, toxins, or disease-causing organisms in food, beverages or feedstuffs’ must be based on existing sound research. The summary published by IARC should provide a sound basis for such measures, as long as they are non-discriminatory.

3. Conclusion

It is still too soon to know whether there will be any consequences from the IARC decision. Producing and eating red meat and processed meat is an ingrained tradition in most human cultures, and whole nations find an element of common identity in local varieties of processed meat. On the other hand, and as startling as the idea may sound to most of us, it cannot be excluded that the regulation of processed meat, and even red meat, will follow the same path of tobacco and alcohol regulation, with ever tighter controls and the creation of disincentives for consumption. Whereas there is currently significant evidence of the problematic polluting effects of livestock, the finding of a direct health hazard arising from high levels of consumption strengthens pressures for the adoption of measures aimed at lowering consumption levels.

As in most alcohol and tobacco disputes, disputes regarding anti-processed meat measures will tend to hinge on the question of discrimination. The IARC decision is clearly all-encompassing, and provides no grounds for distinguishing between different types of processed meat. If past disputes are any guide, the reaction of politicians will tend to involve tough restrictions affecting foreign products coupled with looser restrictions where domestic producers are affected. As with other cases in which public interest rhetoric grounds discriminatory measures, WTO adjudicators will have to tread carefully, and condemn the discriminatory element in the provisions while assuring non-specialist audiences worldwide that WTO rules do not privilege international trade over human life and health.