Who Says Whatever Happens at Codex Does Not Affect US Law and Why Do They Say It

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Who Says Whatever Happens at Codex Does Not Affect US Law and

Why Do They Say It?

Fri, 6 May 2005 22:22:20 +0100

 

 

Who Says Whatever Happens at Codex

Does Not Affect US Law and

Why Do They Say It?

 

A journalist looks back to help you look forward

 

by Suzanne Harris, J.D.

2005 The Law Loft

 

 

 

I was struck recently by an article appearing in the NNFA Today

magazine, Volume 18, No.11 entitled " International Products Regulation

Q & A: What Affect do They Really Have on the U.S.? " While some parts of

the article were good, a number of the questions and answers struck a

discordant note including the following:

 

" However, according to a U.S. Department of Agriculture official,

the United States has never changed its laws or regulations to conform

to any standards or guidelines adopted at Codex. He noted further that

the United States does not, as a matter of practice, officially

accept, accept in part, accept free distribution, or accept standards

or guidelines adopted by the Codex Commission. Therefore, it doesn't

appear that any changes to U.S. law or regulations would likely occur

as a result of any adoption by the Commission of the vitamin and food

supplement guidelines. " [emphasis added]

 

It was the therefore that really bothered me. If NNFA asked that

unnamed bureaucrat about acceptance of guidelines, then it really

asked the wrong question. The U.S. generally doesn't accept Codex

guidelines nor do other countries. The Codex Secretariat hasn't

received a notice of acceptance in the last 10 years. The better

question is whether Codex standards and guidelines act as a template

or containment within which countries must then write their laws and

regulations or face enormous political and legal pressure. To this

latter question the answer is clearly yes ­ write laws within the

acceptable field set forth by the applicable Codex standard or

guideline or be prepared to accept the consequences, including the

risk of cross-sector trade sanctions if you don't.

 

Why are Codex guidelines and standards a containment, a template,

within which nations must then operate or face a host of nasty

consequences? Partly because since the creation of the World Trade

Organization and its internal operating agreements, every member

nation knows that its laws and regulations can become the object of a

WTO ruling and the object of political pressure to harmonize. Back in

1997, I watched as the realization dawned on Codex delegates that they

had entered into a new era of food law harmoninzation.Too late to cry

now was the essence of the message delivered to them by the counsel

from WTO.

 

A few months later, I was dining in Washington with another group of

food regulators fresh with the kind of know-it-all arrogance that

strikes people who have been around the block at Codex once or twice,

and I said: " You know, it's really fascinating to watch how

regulations that affect us here at home start out at international

meetings. "

 

" No, they don't, " intoned a voice from the other end of the table.

" They start with decisions by industry. I was at a trade meeting where

a new form of packaging was unveiled. Not too long thereafter, the

same idea was presented at Codex. That's the way things are done now.

And you would do it that way too. Why run around from country to

country seeking the regulations you want when you can do it all in one

shot at Codex? " The speaker, whom I have paraphrased, was a bureaucrat

from the Department of Agriculture.

 

 

Was he right? Is Codex the place where the templates for new

world-wide regulations are written after business interests have

agreed to them?

 

Through all the years of meetings I have attended since, the answer

has come through loud and clear. Yes, he was right, but the pathways

can be complex. It works like this: big business and bureaucrats get

together and agree on how to write new international regulations in

private meetings. When they agree, their agreements then surface as

working projects, draft guidelines, or proposals at Codex. In some

cases the pathway is very, very clear. In others it is not. In the

dietary supplements case, a series of meetings were held by business

and bureaucrats who agreed on some issues, went forward on those at

Codex, and then agreed on others now contained in the draft guideline

on vitamin and mineral supplements now at Step 8.

 

The real key to how things work at Codex is contained in the phrase in

Article 1 of the Statutes of the Codex Alimentarius Commission where

it says: the purpose is - " (b) promoting the coordination of all food

standards work undertaken by international governmental and non

governmental organizations; " What is so significant about this phrase

are the words promoting the coordination of ... international

governmental and non governmental ... What that means in the real

world is taking the work of international industrial lobbying groups

and then cloaking that work with legitimacy and now real binding legal

and political force by feeding their agreements through Codex, an

international governmental entity. The more jaded among you will say,

'Well, how is that any different from the way things have worked in

Washington for decades?' The answer is it is different because

decisions are made by bureaucrats and the actions are offshore. With a

truly domestic piece of legislation you have a chance of overcoming

industrial pressure with grassroots pressure on the people you

elected. With an international guideline, by the time it's done you

have almost no chance to win. You can't bring pressure to bear in all

the right places. The real damage was done long ago and long before

you felt it.

 

 

Would some bureaucrat in Washington deliberately mislead anybody? You bet.

 

Again and again in a variety of contexts, I have heard bureaucrats

tell unwary consumers and reporters tall tales filled with half

truths. At the end of a meeting in Washington last Fall, a

Washington-based attendee slipped me his card and said " If you ever

get a straight answer out of these folks let me know. "

 

When I started to catch on to the game myself, I began changing the

way I prepared for meetings and the way I asked questions. I hunted

for evidence of these meetings and premised my questions accordingly.

The results were startling. Bureaucrats knew months, sometimes years

ahead, what was going to happen next, and they told me. I knew, for

example, over two years ago that the German risk assessment for

vitamins and minerals was being built ­ long before others

'discovered' it in January.

 

But they do still try to con you even if you know the game. More

recently in Europe an EU bureaucrat I was interviewing said, " Of

course, it is different for the FDA. They can't regulate food

supplements the way we do because of DSHEA. "

 

" Did someone tell you that? " I replied. " You have been misinformed.

DSHEA contains a huge escape clause 'substantial or unreasonable risk

of ... ' " I didn't get to finish my sentence. He did it for me, '

.... of illness or injury.' " You could drive a whole herd of camels

through that language. Do you know any bureaucrat who wouldn't? " I

said. A huge grin covered his face like a Cheshire cat smile. I had

caught him and he knew it.

 

 

Why aren't they telling the truth and the whole truth? Because it is a

truth they do not want you to hear.

 

No one in this game internationally or in Washington wants you to know

that the upcoming Codex guideline will circumscribe what Congress

does. It's a little game they all play now ­ decide offshore what to

do, write a standard or guideline, tell the elected representatives:

find a problem at home, launch a PR campaign, pretend you are writing

new legislation to fix the problem.

 

Indeed, the concept of gamesmanship is now so imbedded in the

bureaucratic mind that it is hard to shake out even when half truths

won't work. I saw another real life demonstration of this mentality

when a consultant told a room full of bureaucrats, " Half truths won't

work here. They know what you are doing. " The assembled bureaucrats

reacted by suggesting that yet another study on how to 'disinform' the

public needed to be done. A meeting organizer expressed disappointment

that I was there to witness this. " We thought nobody from the press

would come. We had buried the notice so deep in our website, " he

commented.

 

 

What are they really doing? Building blocks for global regulations

through 'consensus.'

 

The name of the game here is convergence and harmonization, to build

regulations and laws in each country that fit together with those

written in other countries and at places like Codex so that trade

(with a hugely expanded definition of trade) moves seamlessly. The

mantra of the hour is 'approved once, accepted everywhere.'

 

Can this be overcome? Is it too late? No, not if just the right steps

are taken right now. Otherwise, we can all look forward to a harder

fight with less chance of success in Washington in the future.

2005, The Law Loft. All rights reserved. No extract,

portion or part of this material may be reproduced without the express

written permission of The Law Loft. For permission to reproduce this

article in whole or in part, contact The Law Loft,

thelawloft or write to us at

The Law Loft, at KCXL 1140AM, 310 South La Frenz, Liberty, Missouri

64068.

 

 

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