Cases on Human Health Issues Risk Assessment Prior Informed Consent and Labeling Requirements

The EC—Asbestos report of April, 2001 is a good example of the Appellate Body's slowly emerging openness toward environmental law. In this report, the AB overruled the previous Panel decision about the essential similarity of asbestos products, regardless of their health effects. Canada, one of the world's biggest exporters of asbestos, had appealed to the WTO due to French import bans, induced by national working and consumption law, on asbestos fibers and asbestos-containing products. While examining the necessity of the French measure under Article XX(b) GATT, the AB renounced a strict testing and instead stressed the appropriateness of the import restriction in order to exclude any potential health risks [25]. Still, by referring to the SPS, the AB demanded a previous scientific assessment of these risks. However, it was willing to accept a qualitative assessment (i.e., an assessment about the mere existences of health risks, not about the dimensions of these risks), based on a scholarly minority opinion. In short: the eminent social importance of the import ban's objective considerably softened of the necessity test requirements. This ruling raises hopes for the prevalence of environmental law in

* The AB deducted this principle of financial equity and support from the preambular clause of Article XX GATT which states that exceptional measures shall not be "applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail".

similar cases, at least as long as the corresponding trade-restricting measures aim at objectives which touch upon human health issues [30].*

Such a case, which stretches from the 1980s until present, is the European Economic Community (EEC)'s ban on the import of beef from animals treated with hormone growth promoters. Pointing at the potential risks of cancer, the EEC had reduced allowable quantities of such hormones in 1981 and finally abolished them altogether in 1986, leading to a first—though unsuccessful—GATT Panel appeal by Canada and the U.S. in 1987. After imposing trade sanctions against the EEC over the following years, both countries solicited the establishment of a WTO Panel in 1996. In its 1998 EC—Hormones report, the Appellate Body (which partially corrected some of the Panel's observations) ruled that national measures are not at odds with SPS regulations when relying on international health agreements. Only when exceeding the standards of such agreements does the importing country have to provide a timely assessment (again only a qualitative one) of the risk and the appropriateness of the measures taken. Hence, as in U.S.—Shrimp and EC—Asbestos, the WTO dispute settlement again bolstered the referential status of external law in order to define the leeway for environmental standards.

However, having so far read quite optimistic implications out of the judicial reports on health issues, it is time to qualify this view. Indeed, this is far from stating that these three reports mark the beginning of a green era in health-related AB rulings. First of all, clear limits have been set on the consultation of external agreements. This goes especially for the precautionary principle which, according to the EC—Hormones report, only prevails in its narrow SPS understanding. The burden of proof is thus left with the importing countries, that is, with the consumers instead of the producers of a potentially harmful good. Second, the difficulties of sticking to deadlines for the qualitative proof of risk should not be underestimated [25]. In the aftermath of the AB's original ruling, this very problem of sufficient proof has been keeping the case from being closed, resulting in the establishment of two further WTO panels in early 2005.1

* These hopes were particularly nourished by two further cases of similar concern in the late 1990s, namely Australia—Salmon and Japan—Varietals. In the former case, the AB confirmed the legitimacy of Australian import bans on Pacific salmon and confirmed the sufficiency of qualitative assessments and scientific minority opinions about a potential animal epidemic. In the latter case, the AB decided on Japanese import restrictions serving as plant protection measures, again sufficing with qualitative tests. However, by strictly following the SPS, the AB set particular deadlines for the proof of health risks and formulated very precise conditions for such temporary measures (Neumann 2002: 217ff.).

1 These panels were requested by the EU, which was convinced to have complied with the requirements of the 1998 decision, by basing its 2003 Hormones Directive on a full scientific risk assessment conducted over the years 1999-2002. On the other hand, Canada and the U.S. continued their sanctions against EU exports, complaining about the lack of any multilateral confirmation of the EU's risk evaluation. While continuously imposing their trade sanctions, both countries refused to challenge the new EU Hormones Directive before the WTO. As a matter of fact, they even blocked the EU's first request to establish respective panels in January 2005 (http:// www.wto.org/english/news_e/news05_e/dsb_17feb05_e.htm [2 April 2006]). The final reports of these panels, which are expected in the first half of 2006, will elucidate to which extent previous rulings on risk assessment can be interpreted in a flexible and thus environmentally sound and health-oriented manner.

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