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Global Food Governance

Implications of Food Safety and Quality Standards in International Trade Law


Mariela Maidana-Eletti

With increasingly globalised markets, changing consumer preferences and the steady development of technologies influencing food trade flows, safety and quality concerns have triggered the development of new forms of global (food) governance. Since its creation in 1995, the World Trade Organization (WTO) has succeeded in providing a multilateral legal framework for the development of regulatory practices through its multiple agreements. Similarly, the continuing importance of regional and bilateral trade agreements, such as in the European Union and in Switzerland, has enhanced WTO’s accomplishments through a comprehensive and dynamic set of international rules and standards for trade. However, the changing trends in the production and distribution of food products have questioned the effectiveness of the regulatory status quo. This book addresses the legal aspects of the current global architecture for food governance, particularly with regard to the role of international standards. In doing so, this work attempts at mapping the implications of domestic food measures in international trade law.


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5. Food Labelling Standards and Trademark Law


5.1 Consumer Protection and Food Labelling At the crossroads between the TBT Agreement and the TRIPS Agree- ment, food labelling measures pose a higher risk of being potentially dis- criminatory against imported foodstuffs. It is widely-known that WTO Members have increasingly relied on labelling standards to regulate market access by requiring the display of certain information in order to guarantee consumer protection.255 The ultimate aim of such policies is to allow market players to make more informed choices. The fact that product labelling responds quicker to consumer demands and so contrib- utes to shape consumers’ habits256 may result in alterations to the flow of international food trade. Whereas consumer protection is interpreted as the underlying reason for the adoption of food quality standards, the Ap- pellate Body reports in US – Tuna II (Mexico) and US – COOL show that they are often used as justification for the imposition of trade-distortion- ary measures. Likewise, trademark rights are known to confer upon their holders an exclusive and absolute right against third parties and as such, it is disputed whether their use through food labelling standards results in trade-distorting behaviour. The rationale behind intellectual property protection is undisputed in as far as it grants an incentive to innovate through a legal monopoly 255 Tania Voon/Andrew Mitchell/Catherine Gascoigne, ‘Consumer Informa- tion, Consumer Preferences and Product Labels under the TBT Agreement’ in: Michael Trebilcock/Tracey Epps (eds), Research Handbook on the WTO and Technical Barriers to Trade, Edward Elgar 2013, pp. 454–484 [Voon/Mitchell/ Gascoigne]. 256...

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