At a Congressional hearing recently to confirm Alexis Taylor as Under Secretary of Agriculture for Trade and Foreign Agricultural Affairs, Taylor offered the following comments on "science-based" regulation as an international trade law principle:
I think from the question of new trade deals, what I'm very interested in is a couple of fundamentals to bring to the conversations within the administration around what is meaningful market access for a cross-section and diversity of US agricultural products that we are producing and exporting. How do we address non-tariff barriers and ensure that science-based regulatory processes and decision-making is being implemented within those various trading partners. And then having enforceable standards within those trade commitments. And then the final step is ensuring that when commitments are not being made or lived up to, that will have been made to US producers, that we are then enforcing those standards that we have negotiated. And that is the kind of fundamental approach that I want to bring to the conversations around the trade policy for the administration. And then finally, as you mentioned, with the reorganization the Codex office has moved under the TFAA [Trade and Foreign Agricultural Affairs’] mission area, and fundamentally, that body has helped bring science-based clarity for food products, for the international export market, and keeping that science-based decision-making and conversations that are rooted in science is absolutely paramount and something I am very committed to should I be confirmed.
The idea that scientific basis is an appropriate trade law principle to guide food safety regulation seems to have widespread support. Even trade skeptic Bob Lighthizer agrees with it. As I noted a couple years ago, "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." Here's one thing Lighthizer said in this regard: "making every regulation science-based is the equivalent of getting rid of protectionism." (It's interesting that Lighthizer supports getting rid of this kind of protectionism, but wants to ratchet up other kinds of protectionism. Presumably that has something to do with who he thinks is engaging in the protectionism.)
But how close is the correlation between regulation that has no scientific basis, on the one hand, and protectionism, on the other? I'm sure there is some degree of overlap, but overall it seems like a fairly weak connection to me. I would guess that most non-science-based regulation is not protectionist in the sense that most people use that term. While such regulation may be ineffective and can distort markets and trade (see, e.g., here), that ineffectiveness and those distortions are not generally the result of protectionist goals, as far as I can tell.
To be clear, I can see how the issue of whether there is a scientific basis for a measure could be a factor to consider in determining whether a measure is discriminatory under various trade obligations. But I'm not sure scientific basis should be a free standing obligation. If it is, it could catch a lot of measures that are not protectionist.
But obviously, other people have a different view, and today, despite all the disagreements over trade policy that we are seeing, this principle appears to have bipartisan support.
What this all makes me wonder is, how did scientific basis take off as a principle in trade obligations in the first place? At some point a while back, I tried to look into this and answer questions such as: Who wanted it in there? And what did they think it meant? But I am now distracted with other things for the foreseeable future, so I'll just put these questions out there for anyone else who is interested. It seemed to me that the early to mid-1980s work of the Cairns Group and various agriculture organizations might hold the answers, if someone wants to dig around.
