Rachel's Precaution Reporter #51
"Foresight and Precaution, in the News and in the World"
Wednesday, August 16, 2006...........Printer-friendly version
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:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Table of Contents... American Nurses Association Adopts Precautionary Approach In October, 2003, the American Nurses Association formally adopted a precautionary approach, focusing on the prevention of hazards. "The precautionary principle states that if it is within one's power, there is an ethical imperative to prevent rather than merely treat disease, even in the face of scientific uncertainty." The Precautionary Approach; Thinking Like a Nurse What does it mean for a nurse to take a precautionary approach to occupational hazards and to the health of patients? Charlotte Brody and Ann Melamed offer five specific steps a nurse can take to implement precaution. The Genetically Modified Foods Debate Two nurses examine the issues surrounding genetically modified foods and conclude that, until more is known, a precautionary approach is called for. An Important Ruling from the WTO on Genetically Modified Foods "At the heart of the dispute is the right of countries, in light of their international trade obligations, to control the introduction into their markets of GMOs.... The dispute was viewed by some as a contest between the environmentalists' 'precautionary principle' and the more traditional view that hard scientific support is needed to justify banning a product on the basis of health concerns." 'J'accuse!' Says a Canadian to His Government "I accuse the governments, federal and provincial, of deliberately covering up environmental degradation that will, given just a little more time, make this world unlivable." Enforcing the 'Polluter Pays' Principle in South Africa "While the polluter pays principle is part of South Africa's legal framework, cases tying emissions to particular companies are rare due to lack of monitoring and data collection." :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From: American Nurses Association, Oct. 15, 2003 [Printer-friendly version] AMERICAN NURSES ASSOCIATION ADOPTS PRECAUTIONARY APPROACH EXECUTIVE SUMMARY: This report provides background information and direction for the American Nurses Association's (ANA) environmental safety policy formation and advocacy through a precautionary approach that focuses on prevention of hazards. The precautionary principle states that if it is within one's power, there is an ethical imperative to prevent rather than merely treat disease, even in the face of scientific uncertainty. The ANA Board of Directors adopted the precautionary approach in October 2003. 1. ANA will broaden its work in occupational and environmental health and apply a precautionary approach when an activity raises threats of harm to human health or the environment. 2. ANA will advocate for public policy that utilizes the precautionary approach that focuses on prevention of hazards to people and to the natural environment. ISSUE STATEMENT: While Florence Nightingale spoke about the importance of clean air, water and environment; modern day nursing has not paid as much attention to the relationship between health and the environment. ANA's involvement in environmental health has focused on the work environment (occupational health and safety) and the toxic byproducts of the health care environment. ANA's work on the environmental impacts of the health care industry has been implemented primarily through ANA's membership and involvement in the international coalition, Health Care Without Harm (HCWH), the campaign for environmentally responsible health care (www.noharm.org). As a result of the success of the Health Care Without Harm coalition, and visibility of ANA in HCWH and the Hospitals for a Healthy Environment (H2E) partnership (www.h2e-online.org), ANA is increasingly in demand to be a leader in environmental health issues. ANA needs to develop a foundation in policy for these activities beyond the 1997 House of Delegates Report: Reduction of Health Care Production of Toxic Pollution, incorporating the recommendations from the 1995 Institute of Medicine Report: Nursing, Health and the Environment. BACKGROUND ON ENVIRONMENTAL HEALTH & NURSING: In 1860, Florence Nightingale provided the foundation for nursing attention to environmental exposures and health effects when she wrote about the need for fresh air and clean water in Notes on Nursing (Nightingale, 1860). The International Council of Nursing (ICN) published a position statement in 1986, The Nurse's Role in Safeguarding the Human Environment. It states: "The preservation and improvement of the human environment has become increasingly important for man's survival and well-being. The vastness and urgency of the task place on every individual and every professional group the responsibility to participate in the efforts to safeguard man's environment, to conserve the world's resources, to study how their use affects man, and how adverse effects can be avoided." This position statement was incorporated into the recommendations of the Institute of Medicine (IOM) Committee on Enhancing Environmental Health Content in Nursing Practice published in 1995 in its report: Nursing, Health and the Environment (IOM, 1995). The IOM report recommended environmental health competencies for nurses to include: 1) Basic knowledge and concepts; 2) assessment and referral; 3) advocacy, ethics, and risk communication; and 4) legislation and regulation. That same year the National Institute of Nursing Research (NINR) convened a second workgroup to develop an environmental health research agenda for the profession. The group emphasized that because nurses are employed in so many settings, the profession is uniquely suited to conduct applied research addressing the impact of environmental hazards on vulnerable populations and communities. Precautionary Principle The precautionary principle is explained thus: "when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically" (http://gdrc.org/u-gov/precaution-3.html). The principle includes taking action in the face of uncertainty; shifting burdens of proof to those who create risks; analysis of alternatives to potentially harmful activities; and participatory decision-making methods. The precautionary principle takes the life cycle of products or chemicals into account and adds the proactive step of pre-market analysis of environmental harm. CONCLUSION STATEMENT: As nurses, who are educated in disease prevention, we can appreciate and should advocate for a precautionary approach when it may prevent injuries and illness. Nurses, as trusted and credible sources of information and education regarding environmental health issues, have the potential to lead patients and communities. ANA can assist nurses in educating and guiding policy makers, including elected officials, to a new way to see the relationship between life's choices (both individual and societal) and their impact on health. ANA will advocate for a precautionary approach to environmental health that provides an opportunity for prevention instead of focusing most of our resources on curing disease resulting from preventable exposures. Return to Table of Contents :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From: American Journal of Nursing (Vol. 4, #4), Mar. 1, 2004 [Printer-friendly version] THE PRECAUTIONARY APPROACH; THINKING LIKE A NURSE By Charlotte Brody, RN, and Ann Melamed, MA, RN Q. I heard that the ANA [American Nurses Association] adopted the "precautionary approach" to address environmental health hazards. What does this mean? A. In October 2003 the ANA board of directors adopted the "precautionary approach" based on the "precautionary principle" developed by German policymakers in the 1970s to address strongly suggestive but unproven links between air pollution and the death of trees. The result of this effort to save trees includes principles that nurses promote daily: early detection and monitoring; reduction of stressors; preventive action where the likely benefit justifies the costs; and reducing risks before full proof of harm is available if the effects could be serious or irreversible. In "Late Lessons from Early Warnings: The Precautionary Principle 1896-2000," a review of radiation illustrates what can happen when we wait for irrefu--table proof before taking preventive action. Thomas Edison warned about the harm that could result from overexposure to X- rays in 1896, only a few years after the discovery was made. The possibility of fetal damage from pelvimetry (an X-ray method of diagnosing pregnancy) was documented as early as 1908. These warnings continued to be discounted, though, and it was only after other studies affirmed these findings that the practice of pelvimetry stopped and requirements were added to other medical exposures to radiation. By then, the damage had been done. A 1989 study estimated that 5% of all childhood cancers were caused by pelvimetry. If health care practitioners and the government had heeded the warnings 30, 40, or 50 years earlier, how many cases of cancer could have been prevented? The history of radiation shows how the precautionary principle could have been used to prevent, not merely treat, disease. Through the ANA's long involvement with coalitions, including Health Care Without Harm, occupational health and pollution prevention are being promoted simultaneously. As part of the ANA's prevention philosophy, when research demonstrates a possible toxic relationship between chemical exposure and health effects, nursing should be an advocate for a precautionary approach. Actions should include reduction or elimination of exposures as well as continued scientific investigations. Nurses can implement the precautionary approach in their work and apply it to all areas of nursing practice, policy, research, education, and workplace strategies. Here are five activities to help apply the precautionary approach in nursing practice. ** Get involved on product committees and be an advocate for reviewing the potential effects of new and old products and therapies on workers and the environment before they are implemented. ** Negotiate contract language that includes staff nurse input on product selection with criteria that includes patients, workers, and long-term environmental impact. ** Organize a product fair with PVC- and DEHP-free products and include educational materials about their hazards. Develop a plan to phase out the use of PVC, beginning with the NICU [neonatal intensive care unit] and maternal-child units. ** Research alternatives (see www.sustainablehospitals.org) to toxic cleaning products, disinfectants, and sterilants and develop a plan to use them instead. ** Encourage nursing research to "clarify the complex relationship between human disease and the physical and biological effects of environmental hazards with the goal of facilitating social and behavioral changes," as stated in the 1995 Institute of Medicine report. Using a precautionary approach will help all of us see through the fog of controversy to discern what the science is trying to show. Then we can determine what we can reasonably do to protect ourselves and our planet. What better way to celebrate Earth Day on April 30? Resources Institute of Medicine (IOM) Report, 1995. Nursing, Health and the Environment. Washington, DC: National Academy Press. Late Lessons from Early Warnings: The Precautionary Principle 1896-2000. Environmental issue report no. 22, European environmental agency. Wingspread Statement on the Precautionary Principle. Charlotte Brody is coexecutive director of Health Care Without Harm (www.noharm.org) and executive director of Commonweal (www.commonweal.org). Ann Melamed is an environmental health specialist with the ANA. Copyright 2006 The American Nurses Association, Inc. Return to Table of Contents :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From: Maryland Nurse, Feb. 1, 2005 [Printer-friendly version] THE GENETICALLY MODIFIED FOODS DEBATE By Katie Huffling, RN, BSN and Barbara Sattler, PhD, RN, FAAN Over the past few years there has been growing controversy over genetically modified foods. Unfortunately, it can be difficult to find independent, scientifically rigorous information about this hotly debated topic. As nurses, our patients, families, and friends look to us for information regarding a variety of health matters, including nutrition; yet many of us have not been formally educated about nutrition. By educating ourselves about this important subject, we can become advocates for our communities and ourselves in regards to genetically modified foods. Genetically modified foods are described in the literature under a variety of other names. These all refer to the same process. They refer to the selection of desired traits from one organism and its genetic placement into another organism. Theoretically, genetically modified foods have the potential to be very beneficial. For example, traits that make plants resistant to harmful insects can be inserted, nutrients that were not previously in that particular plant may be added, or modifications can be made to improve the ability of a plant to grow in regions of the world where the conditions are inhospitable to the growth of traditional, non-modified plant varieties. Genetically modified foods have been increasingly used by farmers and were grown on over 109 million acres in 2001 and over half of the soy grown worldwide has been genetically engineered. So why is there so much controversy surrounding genetically modified foods? In order to understand the differing views one should first know how genetically modified foods are made. The method of genetically modifying foods is a highly technical process. In order to produce the desired trait, many different genes, from a variety of organisms, need to be inserted. Many genetically modified foods have over 30 added genes. First the gene that produces the desired trait is isolated. This gene is then spliced into bacteria that are known to attach to seeds and transmit genes into them. The bacteria is mixed with the seeds that the scientist would like modified and if all goes as planned the bacteria transmits the gene to the seed. It is not enough that the gene is transmitted but the gene must be inserted in the right place on the seed DNA for the trait to be produced. Scientists have developed a system to easily determine if the gene is in the correct position. They add a gene that causes resistance to a particular antibiotic. After the genes have been transmitted, they expose the seeds to this antibiotic. If the inserted genes are in the correct place, the antibiotic will not kill the seeds. These resistant seeds are then selected and grown. The plants grown from these seeds will then be tested for the desired trait. ==================================================== The many names of genetically modified foods: ** Transgenic ** Genetically engineered ** Bioengineered ** Genetically modified organisms ==================================================== The use of antibiotic resistant traits in genetic modification has been one of the sources of controversy and raises a red flag for nurses. There is concern that these traits could be transferred to the humans and animals that eat these foods, exacerbating an already widespread problem of antibiotic resistance. This could negatively impact the ability of nurses to provide quality care for our patients. Nurses are painfully aware of the limited armament we have to combat infections and recognize the threat that antibiotic resistant organisms could present. In a study that addresses safety concerns such as changes in nutrients, toxins, and allergens, the National Academy of Sciences (NAS) has recently released guidelines for implementing safety assessments of genetically modified foods (Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects, 2004). Current mandates require companies to assess for "intended and predictable" effects of genetic modification. The NAS is recommending these mandates be changed to a more thorough safety assessment that includes unexpected changes. They also recommend that genetically modified organisms be evaluated after market introduction in order to monitor the real life experience and validate the initial safety assessment. This tracking system would be especially useful in identifying allergens within genetically modified foods and determining the prevalence of allergic reactions to these foods within the general population. One of the marketing ploys most frequently sited by the companies that create genetically engineered seeds is that these seeds may have the ability to reduce the impact of important global diseases. For example, Vitamin A deficiency is common in developing countries worldwide. This deficiency is the most common cause of childhood blindness and is implicated in the deaths of many malnourished children and adults. Even though supplementation is inexpensive and easy to provide, many developing countries do not have the resources to distribute it. Scientists have developed a type of rice that produces beta-carotene (which the body converts to Vitamin A). The ability to produce beta-carotene was taken from a daffodil gene. This gene makes the rice turn a yellow color and the rice has thus been called "Golden Rice." On the surface "Golden Rice" sounds like an amazing advancement, but as you delve deeper, some yellow flags emerge. First, beta-carotene must be converted into Vitamin A. It is estimated that only 10% of beta-carotene is actually made into Vitamin A. When using this estimate, a child would have to eat approximately six pounds of cooked Golden Rice each day in order to get the recommended daily allowance of Vitamin A. Also, some fat in the diet is required to adequately absorb beta-carotene. Many malnourished people do not have sufficient fat in their diet, thereby impeding their ability to absorb beta- carotene. Golden Rice is still not available for use by the public so its ability to reduce Vitamin A deficiency remains to be seen. Another marketing strategy of the genetically modified seed industry is its claim that genetically modified crops will increase worldwide production of food, thereby reducing world hunger. They extend this argument to claim that if larger quantities of food are produced on existing farmland, the world's growing population will be able to be fed without further destruction of rainforests and other environmentally sensitive areas. This supposition does not address the true causes of hunger in most of the world. As stated by the American Dietetic Association, "There is sufficient food to feed everyone...Poverty, gender inequity, ethnocentrism, racism, and lack of political will are all key constraints to solving the problem of world hunger and malnutrition" (Struble & Aomari, 2003). Hunger is not caused by a lack of food being produced, but rather an inability to pay for food and social and political unrest that make it difficult to obtain, distribute and/or grow food. Also, most of the genetically engineered crops being developed are not varieties that can be grown in climates where malnutrition is most prevalent. The varieties being developed are those that will have the ability to make the most profit, such as corn and soybeans, which are key elements in the processed foods that are likely to be consumed in developed countries, like the United States. Another argument of the industry is that genetically modified plants may reduce the amount of agricultural pesticides used. Pesticides can have a significant, negative health effect on the farmers who use them, the consumers who ingest pesticide residues on the foods they consume, and the whole ecosystem. As genetically modified crops have become more prevalent, a reduction in pesticide use is not always found. In fact, in some areas of the United States, pesticide use has actually increased. This may be due to the difficulty in growing these crops in certain areas of the country. Also, some crops have been engineered to be resistant to herbicides (a type of pesticide). With this resistance, farmers can now spray more herbicides, such as weed killers, without having to worry about the chemicals affecting their crop, thus increasing the amount of pesticides used. One way that decreased pesticide use may be achieved is by the addition of a gene from the bacteria Bacillus thurengiensis (Bt). This causes plants to produce a substance that is toxic to insects. Organic farmers have used Bt for years as a natural insecticide. Unfortunately, insect pests are very good at becoming resistant to insecticides. The widespread use of genetically modified Bt crops has made many in the organic farming community concerned that one of the few resources they have available to combat insect pests may soon be ineffective. Bt is also used in many communities to control the mosquito population. With the increasing number of mosquito-born illnesses, such as the West Nile virus, it is vital that the effectiveness of this important form of mosquito control be maintained. Finally, there is evidence that Bt enhanced crops may negatively affect monarch butterfly populations (Losey et al, 1999). While there are conflicting studies regarding this outcome, it seems likely that monarch butterflies have the potential to be seriously harmed by Bt containing plants. Are there other vulnerable populations - animal, insect, human -- that could also be affected? The science is not yet developed to answer this question. Nurses consistently support full disclosure labeling policies on the basis that people have the right to know and make informed decisions about what they eat, drink, and breathe. However, corporations have, to date, successfully lobbied against labeling genetically modified foods. They state that these foods have been deemed safe by the federal government so no additional labeling is required. Still, consumers have consistently asked for labeling of genetically modified foods. As the acclaimed food and nutrition author and professor at New York University Marion Nestle states, "If we are what we eat and we don't know what we are eating, do we know who we are?" There is the potential for allergic reactions and labeling would allow people with known allergies to make informed food choices. Individuals who do not eat meat may object to eating products that have animal genes added. Without labeling they are unable to know if what they are eating goes against their religious or moral beliefs. The issues regarding genetically modified foods are complex It may be that a cautious approach is the best one. In 2003, the American Nurses Association adopted the Precautionary Principle as its guiding tenet for environmental health. This principle advocates a cautious approach to technologies that have the potential to cause negative environmental or health effects. Though there are many potential benefits from genetically modified foods, the possibility of far- reaching negative outcomes should direct us towards a more thorough study of these foods before their widespread use. Such an approach would place us on a safer, more precautionary path. References Committee on Identifying and Assessing Unintended Effects of Genetically Engineered Foods on Human Health, National Research Council. (2004). Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects. The National Academies Press: Washington, D.C. Losey, J.E., Rayor, L.S., &Carter, M.E. (1999). Transgenic pollen harms monarch larvae. Nature, 399, 214. Struble, M.B. & Aomari, L.L. (2003). Addressing world hunger, malnutrition and food insecurity. Retrieved September 15, 2004 from American Dietetic Association web site Return to Table of Contents :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From: Mondaq, Aug. 9, 2006 [Printer-friendly version] THE WTO RULES ON GENETICALLY MODIFIED ORGANISMS By John W. Boscariol and others** A recent World Trade Organization (WTO) interim ruling on the regulation of genetically modified organisms (GMOs), EC-Measures Affecting the Approval and Marketing of Biotech Products, will be of significant interest to companies operating in the food and agricultural sectors. The ruling arises from a dispute initiated in 2003 by the United States, Canada and Argentina against the European Community (EC) over its treatment of GMOs and products containing GMOs. These countries claimed that the EC approval system delayed the commercialization of GMOs, and that some European countries had effectively banned certain genetically modified crops. The long-awaited ruling may have very broad implications, and not just for the agri-food sector. It signals a WTO preference for science rather than mere concern as a tool of justification of trade- restrictive measures designed to protect health or the environment. The fact that the Panel did not consider the provisions of the Cartagena Protocol on Biosafety in its analysis also raises far- reaching questions about the interplay between the WTO agreements and other international treaties. As the world's third largest grower and exporter of GMO crops, Canada no doubt stands to benefit from the Panel's decision. Background The case was considered controversial from the outset. At the heart of the dispute is the right of countries, in light of their international trade obligations, to control the introduction into their markets of GMOs. The United States, Canada and Argentina (the "Complaining Parties") were concerned that the EC's regulatory system for the approval of GMOs was being used to shut out imports of various GMO crops without any scientific basis. The dispute was viewed by some as a contest between the environmentalists' "precautionary principle" and the more traditional view that hard scientific support is needed to justify banning a product on the basis of health concerns. The precautionary principle, manifested in the EC regulatory system for GMOs, provides that the mere possibility of harm to human health or the environment is enough to justify precautionary measures, even in the absence of scientific certainty or probability of harm. The precautionary principle has been endorsed in several international treaties, including the recently concluded Cartagena Protocol on Biosafety, which specifically deals with "living modified organisms resulting from modern biotechnology". (The EC has ratified the Cartagena Protocol, while the United States has not signed on to the treaty, and Canada and Argentina have not ratified it.) The Measures in Dispute The Complaining Parties challenged three EC regulatory measures: ** an alleged moratorium on GMO approvals, ** the alleged failure to consider new applications for GMO approvals; and ** GMO-specific bans or restrictions imposed by several European countries. The Complaining Parties argued that these measures imposed barriers to trade, in breach of several WTO agreements including the Agreement on Agriculture, the GATT 1994, the Agreement on Technical Barriers to Trade, and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). In the claims under the SPS Agreement, which deals with food safety and animal and plant health regulations, the measures were challenged as inconsistent with both the science- based requirements of the SPS and its procedural requirements. The EC -- Biotech Interim Decision The WTO Panel narrowed its ruling to address only the claims brought under the SPS. The Panel also made it clear that it would not examine whether biotech products in general are safe or not, or whether they are "like" their conventional counterparts. The Panel also did not consider whether the EC has the right to require the pre-marketing approval of GMOs, as this was not raised by the Complaining Parties. Because the complaint was made prior to the implementation of the EC's traceability and labelling requirements for products that contain a minimum threshold amount of GMO content, the Panel also did not consider the WTO-legality of these measures. Regarding the alleged moratorium on the approval of GMOs, the Panel found that the EC had applied a de facto moratorium between June 1999 and August 2003. As a legal matter, this moratorium was considered to be inconsistent with the EC's obligation under Annex C(1)(a) of the SPS, which requires parties to complete testing and approval procedures without undue delay. The Complaining Parties had argued that the moratorium was inconsistent with numerous other obligations under the SPS, but the Panel ruled against them on all points except that of "undue delay". Because the moratorium had ended after the establishment of the Panel, with the approval of several GMO products, the Panel did not make any recommendations on this point. Regarding the complaint that the EC had failed to consider specific GMOs for approval, the Panel ruled that the EC had acted inconsistently with its obligation under Annex C(1)(a) to undertake and complete such procedures without undue delay with respect to numerous GMOs. Under the U.S. complaint, the Panel found undue delay in the EC's consideration of 21 out of 25 specified GMOs. For Canada, the inconsistent treatment was found for all four GMOs identified. For those products that remained outstanding, the Panel recommended that the EC bring its product-specific measures into conformity with its SPS obligations, that is, to commence and complete the approvals process without undue delay. Finally, regarding the individual European country bans on GMO products, the Panel ruled that bans were not based on risk assessments as required by Article 5.1 of the SPS Agreement, and were therefore inconsistent with the countries' WTO obligations. The conclusions reached in this aspect of the decision were the only ones in which the Panel found breaches of substantive, rather than merely procedural, provisions of the SPS Agreement. Significantly, the Panel found that the bans were not consistent with Article 5.7 of the SPS, which permits parties to adopt provisional measures (such as product bans) where there is insufficient scientific evidence to assess the risk of the product. The EC scientific committee and competent national authorities had carried out assessments of each of the products in question, and each was approved as safe. These assessments were deemed to be proper risk assessments as defined in the SPS Agreement. The studies relied upon by the individual countries for their bans were found not to constitute sufficient risk assessments and, because acceptable risk assessments were available, Article 5.7 could not be relied upon. This in turn led the Panel to conclude that these country bans were also inconsistent with Articles 2.2 and 2.3 of the SPS, which prohibit a party from maintaining a restrictive measure without sufficient scientific evidence to justify it (Article 2.2), and from applying such measures in a way to constitute a disguised restriction on international trade (Article 2.3). The Panel recommended that the individual countries bring their safeguard measures into compliance, and remove the bans on the specified GMO products. Reactions to the Decision The European Union and the United States have reacted very differently to the ruling. In the United States, the reaction to the ruling was that it was an unequivocal victory, sending a strong signal to other countries that it is WTO-illegal to impose restrictions on the import of GMO products, and that it is a warning that the EC cannot now impose a new de facto ban on GMOs. In Europe, the consensus is that the ruling is primarily of "historical interest", as the de facto moratorium has since been lifted. Since new rules were adopted in 2004, the EC has approved nine GMO products for import and sale to Europe. Also, the ruling does not require the EC to alter its strict system for approving GMOs. The true consequences of the decision fall somewhere in the middle. While the Panel did not pronounce on the validity of the EC's regulatory system for GMOs, it did rule that bans on GMO products that are not based on risk assessments, as defined in the SPS, are inconsistent with WTO rules. On the other hand, the Panel did not question the right of individual countries to impose bans if new risk assessments support such measures. Regarding the moratorium on approvals of GMO products, the Panel did find that the 1999-2003 moratorium was inconsistent with the SPS Agreement, insofar as it had the effect of unduly delaying the results of the approvals process. The Panel did not suggest that future moratoria would necessarily also be inconsistent. If additional scientific evidence were brought to light that would justify restrictions, the EC would be permitted to impose them, provided decisions were made without undue delay. Implications of the Decision There are two potentially significant implications that arise from this decision. First, the decision may be used as precedent for the proposition that the precautionary principle is not a valid basis for measures relating to human and environmental health. Second, it may now be in doubt whether future WTO Panels have to balance WTO rules with obligations created by other international treaties. The Panel dismissed the EC's argument that its regulatory procedures were consistent with the precautionary principle. The EC had argued that there was still scientific uncertainty as to the effects of GMOs on human health and environmental well-being and that, under Article 5.7 of the SPS, this permitted precautionary measures such as import restrictions until better evidence is available. The Panel had a different technical interpretation of Article 5.7 but, more importantly, it ruled that the precautionary principle was too controversial and unsettled a concept to be deemed a general principle of law. In this, the Panel relied on the earlier EC -- Hormones Appellate Body decision, which also noted that it was unclear whether the precautionary principle had been widely accepted by WTO members as a principle of general or customary international law. By so ruling, the Panel interpreted the obligations of the SPS agreement without reference to any precautionary principle and reaffirmed that a restrictive measure said to be based on health or environmental concerns will have to be justified by science, and not by mere concerns or desires to be prudent. If taken as precedent, this position could affect the regulation of many other industries. For example, the EC has proposed draft rules for testing the effects of certain industrial chemicals for their public health consequences. If those rules incorporate the precautionary principle, any resulting restrictions could be challenged for not being based on hard scientific evidence. The Panel took a firm and arguably inconsistent approach to the effect of other international treaties on its interpretation of WTO rules. The Panel ruled that it only had to rely on other treaties if it found them useful, and that it was under no circumstances obliged to do so. Despite the fact that the Cartagena Protocol, ratified by 132 countries (although, as noted above, not by the Complaining Parties), is a comprehensive agreement specifically addressing genetically modified organisms, the Panel found that it did not need to consider it in interpreting the SPS Agreement. As part of its reasoning, the Panel found that, because the Complaining Parties were not parties to the Cartagena Protocol, the treaty was not applicable in their relations as WTO members. A significant international legal debate exists regarding the relationship between the WTO and multilateral environmental agreements, such as the Cartagena Protocol. In previous WTO case law, such international agreements have been considered as part of the WTO- compliance analysis. The EC -- Biotech ruling may signal that other treaties are only relevant when all parties to the dispute, or even possibly all WTO members, are parties to the other treaties. One strategy to minimize exposure to other countries' trade restrictions would therefore be to withdraw from, or not sign on to, treaties which contemplate trade-limiting obligations or powers. Next Steps The Panel is now receiving comments from the Parties, and is expected to issue its final decision in September. That decision may be appealed to the WTO's Apellate Body, which may uphold, modify or reverse the Panel's legal findings. If the EC fails to comply with the recommendations contained in a Panel or Appellate Body Report, the United States, Canada and Argentina may seek and obtain WTO authorization to impose trade sanctions against the EC until it complies with its WTO obligations. ** This article was written by John W. Boscariol, Riyaz Dattu, Simon V. Potter, Orlando E. Silva, Brenda C. Swick and Alastair McNish Copyright Mondaq® 1994-2006. Return to Table of Contents :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From: The Tyee, Aug. 14, 2006 [Printer-friendly version] 'J'ACCUSE!' SAUVEZ LA TERRE! I accuse our officials of failing to protect our future. By Rafe Mair An article entitled "J'Accuse," by Emile Zola, the great French novelist, appeared in a Paris literary newspaper, L'Aurore (The Dawn) on Thursday, Jan. 13, 1898. It has been called "an essential date in the history of journalism." And it was. It dealt with one of the grossest abuses of authority ever known -- the court-martialling of Captain Alfred Dreyfus, an Alsatian Jew who was, in a frame-up, found guilty of selling secrets to the Germans. He was sent to the horrific tropical prison Devil's Island off the coast of South America. Zola, three weeks after his article, was tried for criminal libel, convicted in a farcical trial and sentenced to a year in prison, causing him to seek asylum in England. Some years later he was cleared on appeal and returned to France. Here is how the French establishment of the day behaved, according to Wikipedia. "At the time of the arrest and trial the army officers responsible for the prosecution truly believed Dreyfus was guilty of the crime charged. By 1896, however, they knew they had made a catastrophic mistake. Still, high-ranking officers on the army's general staff and officers in military intelligence, fearful that public exposure of the injustice done Dreyfus would embarrass the army, engaged in a gigantic cover-up which featured perjury, forgery and obstruction of justice. The conspirators, including at least eight generals, even protected and assisted Commandant Ferdinand Esterhazy, the army infantry officer who, as they knew by 1896, had actually committed the crime for which Dreyfus had been wrongfully convicted." His story is told, incidentally, in the book Dreyfus -- A Family Affair; 1789-1945 by Michael Burns. I accuse I don't recall Dreyfus to illustrate anti-Semitism in Canada as there was in France, but to demonstrate the truism that governments and establishments only do right by accident. Not only do they permit wrongs, they encourage them. Dreyfus showed that no matter what the issue, the government and the ruling oligarchy will do all things necessary, very much including telling falsehoods, to avoid doing what's right. I accuse the governments, federal and provincial, of deliberately covering up environmental degradation that will, given just a little more time, make this world unlivable. I accuse the governments of gross dereliction of duty. I accuse the governments of pandering to the wishes of the Canadian establishment, the captains of industry and the comfortable crust of society rather than performing its fundamental task of protecting the environment for the generations to come. Ignoring conveniently As at the time of Dreyfus, the government and upper crust of France were happy to live with an evil distortion of the truth and support perjurers, so the governments of British Columbia and Canada deliberately and stubbornly ignored the warnings of those with uncomfortably true convictions, from Rachel Carson (whose Silent Spring was first published in 1962) on to Canadian heroes like David Suzuki, Paul Watson and Alexandra Morton. The generals in the Dreyfus case are in this case the industrialists of the world, all too often aided and abetted by organized labour. The industrialists don't see themselves as having any obligation to be good citizens. After all, their duty is to shareholders; labour unions too often put jobs before all other considerations. The governments, like the French government in Dreyfus's time, are enablers and apologists and by their inattention to duty encourage the ongoing desecration of our environment, our legacy to future generations. Timid politicians Because Dreyfus was a Jew from what was after the War of 1870 part of Germany, the government feared public disapproval if they stood up to the military. Because even a tiny bit of environmental common sense will offend the affluent and comfortable, governments knuckle under to industry. The public, misled at best, lied to at worst, is disorganized as on each and every environmental issue the government bobs, weaves, dissembles and outright lies. The fight to save ourselves seems unwinnable, so our motto seems to be "let's have a bit of peace and quiet and hope nothing bad happens." We've reached the point where the oceans are becoming cesspools with bacteria and jellyfish all that is likely to survive, the ice caps are disappearing, our atmosphere comes closer and closer to unfixable degradation, and our governments do nothing. My imitation of the great Zola's "J'Accuse" is directed to us: you and me who will always reject harsh reality if there's a Pollyannish argument to be made. We let it happen bit by bit as we feel helpless while industry and government dart away from the truth and, like the inkfish, cover their trail. Alarms were warranted Day by day in 2006 we're learning that those who were concerned about farmed Atlantic salmon in our waters were right -- indeed the situation is worse than was thought. Yet the government continues to help the industry lie through its teeth. The recent opinion of Special Crown Counsel Bill Smart demonstrates that biologist Alexandra Morton has been right all along. We have a government that invites environmental rapists, dressed as if they just stepped out of an Eddie Bauer catalogue, to open up our wilderness so that wealthy Europeans and American hunters and fishers can not only intrude on that wilderness but walk away with taxidermic evidence of their manliness. When the public ventures a complaint, governments and their apologists in the media claim that their policy will open up the wilderness so even senior citizens can get in on the act. Yeah, sure. The saga is endless and, mercifully, this column is not. I am, then, about to reduce the issue to where we can see that a solution only awaits our willingness to adopt it. I'm speaking of what the lawyers call the "onus of proof." Precautionary principle Does it not strike you as strange that the fish farmers have never had to prove that their industry is environmentally sound but that individuals like you and me, scattered about doing other things, must take on the onus and fight those who would rape our precious outdoors? Isn't it more than a little odd that we must show the dangers from sea lice, escapees, fish turds, chemicals and dyes while industry, hand in hand with cabinet ministers and bureaucrats, denies the obvious and does as it pleases? Why must we rely upon dedicated citizens to demonstrate these dangers and to enunciate the obvious? What I propose is not some "way out" solution no one's ever heard of. I speak of what scientists (those not paid for by the governments or industry, that is) call the "precautionary principle." Simply put, this means that before we introduce any program into the environment, we assume a stance of caution and say to the fish farmer, for example: "You are introducing into the oceans something very new, a foreign species, in the hundreds of thousands, in cages. Experience in Norway, Scotland and Ireland tells us that we can expect large numbers of escapes, millions of sea lice attracted to these tightly contained hosts and a lot of dangerous drugs, excess food, colorants and other crud onto the seabed. Before you get a license, you must establish that you will do no harm." It's all ass backwards. The government takes the side (and some shekels besides) from industry, shills for that industry and hopes that by the time a disunited public sees what's up, it will be too late. I use the fish farm issue because it's current and we can all see what happens when we leave the safety of our waters to Gordon Campbell and Co. But it happens throughout the public process. Whether its pharmaceuticals, foodstuffs, or use of the environment, the onus is thrust upon the public and those who, pro bono, work on their behalf to demonstrate harm instead of industry proving safety. Safety first? Let me close with this thought. Why do we insist that commercial airlines, big and small, constantly prove the airworthiness and safety of their planes? Right wing philosophers would argue that companies will always police themselves because it's just good business. But we know that's not true. Left to their own devices, companies will fudge, take just a little bit of a chance, have that pilot fly just an hour or two more. Airlines don't like the involvement of government, i.e. the public, because it sets standards that, to the industry, seem unreasonably high. But governments, with the public behind them, demand that the "precautionary principle" be adopted and the onus be on airlines to constantly prove their safeness and not on the public to demonstrate the opposite. That principle must apply to government and industry that use the environment to ply their trade. The hour is late. Perhaps it is past. The public must rise as one and say "we are not going to sell out, for short term gain, our heritage. Enough, we say, enough! Henceforth the political party that does not acknowledge and pledge to support the 'precautionary principle' will not get our support." If we don't do this, all will be lost if it isn't already. Rafe Mair writes a Monday column for The Tyee. His website is www.rafeonline.com. Return to Table of Contents :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From: Environmental Data Interactive -- UK, Aug. 14, 2006 [Printer-friendly version] INDUSTRY UNDER PRESSURE TO PAY FOR POLLUTION IN SOUTH AFRICA By Sam Bond Grassroots environmentalists in South Africa are using an academic study as a lever to demand compensation for deaths and payment for medical treatment needed for illness linked to industrial sites where they live and work. The South Durban Basin is the industrial zone of Africa's busiest port and home to chemical plants, poorly regulated landfills and two oil refineries. Its neighbours and workers have long maintained that their proximity to the heavy industry is bad for their health but until now have had little chance of compensation. While the polluter pays principle is part of South Africa's legal framework, cases tying emissions to particular companies are rare due to lack of monitoring and data collection. A study published by the Centre for Occupational and Environmental Health at the University of KwaZulu-Natal may change that, however, as it offers scientific evidence that air quality in the basin is worse than elsewhere in the city and that the companies which run the industrial installations are, at least in part, responsible for this. The South Durban Community Environmental Alliance is now using the study as the basis for a class action demanding free medical treatment for those affected by the pollution and compensation for the families of those who have died as a result of it. Engen, the company which runs one of the two refineries the alliance alleges are responsible for the lions' share of the pollution, said in a statement that it welcomed the publication of the report. It said that a greater understanding the cause and effect of pollution in the basin was valuable to everyone and pointed out that the study concluded that there had been significant improvements in air quality over the past ten years. The company declined to comment on the possibility of a court case but suggested a solution to some of the concerns raised by the report might include establishing a database of Durban companies listing their potential environmental impact or a toxic emissions directory for the city, both of which would make it easier to trace particular pollutants to their source. Return to Table of Contents ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Rachel's Precaution Reporter offers news, views and practical examples of the Precautionary Principle, or Foresight Principle, in action. The Precautionary Principle is a modern way of making decisions, to minimize harm. Rachel's Precaution Reporter tries to answer such questions as, Why do we need the precautionary principle? Who is using precaution? Who is opposing precaution? We often include attacks on the precautionary principle because we believe it is essential for advocates of precaution to know what their adversaries are saying, just as abolitionists in 1830 needed to know the arguments used by slaveholders. Rachel's Precaution Reporter is published as often as necessary to provide readers with up-to-date coverage of the subject. As you come across stories that illustrate the precautionary principle -- or the need for the precautionary principle -- please Email them to us at email@example.com. 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