Labeling of Genetically Modified Organisms: Law, Science, Policy and Practice

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Labeling of Genetically Modified Organisms: Law, Science, Policy and Practice Labeling of Genetically Modified Organisms: Law, Science, Policy and Practice By Li Du A thesis submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy Faculty of Law University of Alberta © Li Du, 2014 Abstract The labeling of genetically modified organisms (GMOs) has been the subject of a global debate for decades. This dissertation, by conducting comprehensive and inter-disciplinary research – from legal, scientific, political and practical perspectives, aims to provide an in-depth analysis of fundamental factors that have contributed to the formation of different labeling regimes, and to justify claims of significant concerns that an optimal labeling regime should be based on and protect. It finds that not only rationales for a mandatory GMO labeling system cannot be justified but also the implementation of mandatory labeling measures may trigger a number of pragmatic problems. It is worth noting that mandatory GMO labeling measures, which lead to conflicts in global agricultural trade, might well violate WTO trade law obligations that are binding on Canada, China, the EU and the US etc. Based on these findings, this study supports voluntary labeling requirements and stands in sharp contrast to the mandatory labeling regimes implemented by the EU and other jurisdictions. It argues that three conditions should be considered to establish an optimal GMO domestic labeling regime. They are: (1) the regime must be based on scientific evidence; (2) it must employ scientific risk assessment and management as the basis for labeling requirements; and (3) the labeling should be accurate and the mission of GMO labeling should be primarily to protect the health of consumers. It thereby suggests that the mandatory labeling requirement should be abandoned in all jurisdictions, and replaced with a voluntary labeling regime and a globally harmonized system of GMO approval procedures and ii detection methods. The dissertation ends with some lessons drawn from the current GMO labeling controversies to ensure better management of future GMO labeling conflicts and regulation of new agricultural biotechnology. It offers suggestions for perfecting the current Canadian GMO labeling regime. iii Acknowledgements From the bottom of my heart, I would love to express my appreciation for my co-supervisors: Professor Linda Reif and Professor Timothy Caulfield. The mentorship I have received from them constitutes the most valuable experience during my PhD study at University of Alberta Faculty of Law. I am also grateful to the other members of my supervisory committee, Professor Erin Nelson and Professor Glenn Griener for their consistent support over the years and insightful contributions to my dissertation. I also express my appreciation for all the other faculty members and staff of the University of Alberta Faculty of Law who have helped me to get through my PhD journey, especially Kim Wilson, Professor Moin A. Yahya, Associate Dean Professor Steven Penney, and former Dean of the Faculty of Law Professor Philip Bryden. In particular, I want to acknowledge the health law research team, Professor Ubaka Ogbogu, Robyn Hyde-Lay, Christen Rachul, and all other members of the Health Law Institute. My sincere thanks also go to the Chinese Scholarship Council and University of Alberta Faculty of Law. Their generous financial support allows me to devote all my time to this thrilling and productive PhD program. I would love to thank the Canadian Institute of Health Research for accepting me as a fellow of the Training Program in Health Law, Ethics and Policy. I also thank the Canadian Stem Cell Network for making me part of the Trainee Communications Committee. iv All these involvements have dramatically enriched my PhD study experience, providing me with numerous opportunities for networking with internationally leading scholars, presenting my research and working with talented people. I am very grateful to my supervisor Professor Yujun Guo at Wuhan University School of Law, and President of the China University of Political Science and Law Professor Jin Huang for their great support of my study abroad. I finish with my deepest gratitude to my wife Jing and all my family. They are definitely amazing. Without their selfless love and unconditional support, all my achievements would be impossible. Thank you, thank you, thank you. v Table of Contents Abstract .......................................................................................................................................... ii Acknowledgements ........................................................................................................................ iv List of Tables .................................................................................................................................. ix List of Figures ................................................................................................................................ ix ACRONYMS .................................................................................................................................. x Chapter 1 Introduction .................................................................................................................. 1 A. Background ......................................................................................................................................... 1 B. GMO Labeling regimes...................................................................................................................... 3 C. Problem statement ............................................................................................................................. 5 D. Central Thesis ................................................................................................................................... 11 E. Definitions and scope........................................................................................................................ 13 F. Methodology ...................................................................................................................................... 16 G. Structure of this dissertation ........................................................................................................... 21 Chapter 2 The Labeling of GMOs, International Food, Agricultural, and International Environmental Law ...................................................................................................................... 26 A. International food and agricultural law ......................................................................................... 27 1. UN Food and Agriculture Organization (FAO) .............................................................................. 27 2. The Codex Alimentarius Commission ............................................................................................ 29 3. The Codex Committee on Food Labeling ...................................................................................... 31 B. International Environmental Law .................................................................................................. 38 1. The Convention on Biological Diversity ........................................................................................ 39 2. The Cartagena Protocol on Biosafety and the Nagoya-Kuala Lumpur Supplementary Protocol ... 42 Conclusion ............................................................................................................................................. 52 Chapter 3 GMOs Labeling and the WTO Agreements ............................................................ 55 A. WTO Background ............................................................................................................................ 56 B. Applicable rules for GMO labeling under the WTO system ........................................................ 58 1. The GATT 1994 and its Article XX General Exception ................................................................ 58 2. The SPS Agreement ........................................................................................................................ 60 3. TBT Agreement .............................................................................................................................. 65 C. Applying the WTO agreements to GMO labeling ......................................................................... 68 1. Applying Article XX of the GATT 1994........................................................................................ 69 2. Applying the SPS Agreement ......................................................................................................... 74 3. Applying the TBT Agreement ........................................................................................................ 78 Conclusion ............................................................................................................................................. 97 Chapter 4 Different Labeling Regimes: European Union, Canada and China .................... 101 vi A. EU .................................................................................................................................................... 101 1. Regime Review ............................................................................................................................. 104 2 Summary of labeling requirements ...............................................................................................
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