I feel like the role of science in trade agreements doesn't get enough attention, and I'm always excited to see someone trying to raise the profile of this issue. Here is a question from Congressman Earl Blumenauer at last week's House Ways and Means trade policy hearing with Ambassador Lighthizer (starts at 1:09:53):
Blumenauer: ... Let me say, I have a particular interest in dealing with food and agricultural policy, to make it more visionary and equitable. Currently, the United States spends too much money subsidizing large corporations and doesn't adequately help the majority of small and mid-sized farmers, and it subsidizes manufactured food at the expense of fresh, healthy food. We have entered into a phase two of our agreements with the United Kingdom. I hope that our negotiators can focus on tearing down protections and barriers to trade, like quotas and price control measures, and spend less political capital on areas where our two countries may simply have reasonable policy differences. I think too often we hide behind requiring science-based justification for other nations' sanitary or phytosanitary measures without allowing flexibility on values and public input. Many large agricultural interests focus on scientific studies on pathogen rinses for poultry. Maybe we should be asking about our production process that requires us to wash chickens in chlorine in the first place. Can't reasonable people have concerns about slaughterhouses in the United States. My goodness. Anyone who has looked at the news recently understands American policy on slaughterhouses needs a much closer review. With pesticides, our regulations do not set a high enough standard for determining their effects on our environment and how those environmental effects impact our health. Should we really export our weak standards to another country who has legitimate public policy concerns and may provide better protections? For genetically modified meat or meat altered by growth hormones, is it possible that a democracy where consumers have input might choose to restrict these practices for reasons other than interfering with American commerce? As with all negotiations, there are some priorities you will push harder than others, but I would hope that you could focus your attention and that of your team on protectionist hurdles to our farmers rather than areas of legitimate policy differences. American families need national and international agricultural policies that address our common welfare and allow for targeted regulations that promote health, address climate change, and put people ahead of corporate interests. I would hope that you and your staff would be willing to help us explore these differences to determine where there are some legitimate policy differences rather than simply protectionist impacts. Would it be possible for us to work with your team to explore this?
It's not surprising that some American politicians on the left would favor an approach to food regulation that is more consistent with what the Europeans do. I agree with some (but not all) of what he is saying here. I agree with the sentiment that we should focus on "protectionist hurdles to our farmers rather than areas of legitimate policy differences." And I worry about obligations that food safety regulations be based on science, because I'm not sure that obligations of this sort can be applied in a way that gives regulators sufficient flexibility. A non-discrimination obligation is narrow and targeted, catching only a handful of measures. By contrast, a requirement that regulations be based on science puts a lot of regulations at risk. I think people overestimate the extent to which food regulations are actually based on science, and also overestimate the ability of international law to enforce such a standard.
Here was Lighthizer's response:
Lighthizer: ... On this issue of agriculture, I'll just repeat what I have said before. Number one, agriculture policy is set by the United States Congress, not by the U.S. Trade Representative. So the issues that you raised I know are difficult issues, and they're being fought out in Congress and Congress will come to some conclusion and I'll be guided by what Congress says. For right now, the reality is that what we want and what we insist from our trading partners is equal access, fair access based on science. The difference between big and small farmers and corporate farmers, I don't know much about that. I would say the United States has the best agriculture in the world. It has the safest, highest standards. And I think we shouldn't confuse science with consumer preference. If consumers have a preference of one thing or another, they should certainly exercise their preference, but it's not the role of the United States Trade Representative to change agriculture policy. I'm dictated that by the Agriculture Department, but mostly by the United States Congress. So what I'm going to do is try to insist on science-based restrictions and to the extent they have restrictions that are not science-based, we will object.
A similar conversation happened at the Senate Finance Committee hearing later the same day. Here is an exchange between Senator Thune and Lighthizer (starts at 00:55:15):
Thune: Thank you, Mr. Chairman. Ambassador, thank you for all you're doing to promote U.S. trade around the world and I know that in testimony earlier today you said that the United States wouldn't agree to a trade deal with the United Kingdom unless the UK lowered barriers and provided fair access for U.S. agriculture products including U.S. meat imports. We've talked time and time again about how much our ag. producers are hurting and how we should be doing more to help them. One way we can do more is by making sure that our trade agreements require our allies and trading partners to rely on sound science. Do you agree that many food standards are actually disguised protectionism, and a follow-up question is, what is the best way to stop that practice?
Lighthizer: So, Senator, I completely agree with you. I made this statement this morning that the European Union has raised this practice of using standards really as protectionism to a high art and I believe they have. They now in terms of some residue -- maximum residue levels, they actually have -- if there's any detection at all, the product is unacceptable. To me, that is just plain protectionism. And making every regulation science-based is the equivalent of getting rid of protectionism. It's the equivalent of getting rid of any other non-tariff trade barrier. I would say Europe is going in the wrong direction, not in the right direction. They're being controlled by protectionist interests and -- well, let me just leave it at that. Protectionist interests. In my judgment, we have to insist on science-based standards for our farmers. And I would say this standards thing is not just an ag. issue. They're using standards in industry too. It's not just -- it's a higher art in ag., but they use it in industry too. We have to insist on it. And to the extent people deny us access, we shouldn't give them a trade agreement. And if we don't have a trade agreement, then in my judgement we ought to be taking trade actions against them. And I'm looking right now at whether or not some of these actions, I want to consult with you and your staff, whether or not right now we shouldn't be looking at a 301 on some of these things. It's getting so far out of control, where they say literally if there's any detectable residue, the product is unacceptable. That's just, there's nothing to do with science.
Based on these responses, Lighthizer seems very comfortable using the absence of a scientific basis as a proxy for rooting out disguised protectionism. If it's not based on science, in his view, we can assume it is protectionist.
I have doubts about this. I think the absence of scientific justification for a regulation can exist for many reasons. To take an extreme example, think about all the people who don't want to get vaccines these days. Ignoring science may overlap with protectionism on occasion, but it's really a separate and much broader issue. The practical reality is that sometimes people's feelings about an issue take precedence over the science, and those popular sentiments are reflected in the work of legislators and regulators. (Democracies are imperfect, but often people's views do make their way through to government officials.)
In addition, sometimes the science is not completely clear, and there is a debate about what the science tells us to do. And in some cases, there are policy issues other than science (e.g. animal welfare) that underlie the regulatory decision in question.
In my view, then, science can play a role in food (and other) regulation, and should be taken into account, but a "based on" science requirement, as we have seen it applied, may go too far, and is not necessarily an appropriate proxy for identifying protectionist regulation.
I also want to raise the issue of regulatory autonomy/sovereignty here, because that seems to be a big point for many people who call themselves economic nationalists. I would say that a narrow and targeted obligation that tries to root out protectionism doesn't (or shouldn't at least) interfere much with regulatory autonomy and sovereignty. In contrast, requiring that all food safety regulations be based on science would be pretty intrusive in this regard, including for U.S. policy-making.
Finally, there's the issue of which branch of the U.S. government should be in charge here. Lighthizer suggests that he is deferring to Congress on all this. But I suspect that many people at USTR have given these issues a lot of thought, and I think that USTR should lead the way a bit more here. Members of Congress will be focused on their particular constituencies, whereas USTR can see the big picture. Currently, U.S. trade policy strikes a certain balance between opening foreign markets and preserving regulatory autonomy. Is it the right balance? Have we been able to use the rules to open foreign markets? Are we risking challenges to non-discriminatory domestic regulations? I'd like to hear more from USTR on these issues.
If Biden wins the presidential election, I'd be curious to see what kind of response Blumenauer would get from Biden's trade policy team on this same question. I have talked to some people on the left -- perhaps those same people have been talking to Blumenauer -- who really want to revisit issues like this one, and who might be more eager to work on this. From the perspective of U.S. domestic politics, it might be risky to take such an approach, because some influential agricultural groups will be annoyed. However, I think there is a case to be made that while trade rules have done a good job dealing with protectionist food regulations, using trade negotiations and enforcement to address food regulations that are unscientific but not clearly protectionist hasn't worked all that well, and that perhaps the industry should try a different approach to pushing for regulatory changes in foreign markets.
