Never trust an EU food ban

By Pete North - February 22, 2021

If you’re ever sufficiently bored enough to tune into a trade committee meeting you’ll see precisely why the system doesn’t work. The last one I watched featured a bewildered FCO official there to talk about economic partnership agreements in Africa being asked about American chlorinated chickens. As much as MPs have no idea how to interrogate the subject, they’re not sufficiently interested in it, they don’t listen to the answers, and they obsess about completely irrelevant talking points.

We were talking about “chlorinated chicken” years before the referendum and will be talking about it for many years to come. The other old canard is the debate on “hormone beef”. What I didn’t realise is just how old this talking point is. It goes right back to the eighties and was largely protectionist scaremongering at the time. Nothing ever changes.

Growth hormones are used to speed up the fattening process in animals. In this way, they will grow faster and need less feed to reach their full weight. In addition, their meat will be leaner. At the same time, concerns have been raised about the carcinogenic effects of these hormones. In the early 1980s, the use of growth hormones caused a public outcry in Italy, when children were reported to have grown oversized genitals and to suffer from other disorders in their sexual development as a result of eating hormone-treated meat.

In response to these concerns, the EC decided in 1981 to ban the use of a number of growth hormones. A ban on five additional growth hormones was postponed until further studies had been completed. Although the scientific working group that studied these hormones found that they did not pose specific health risks, public pressure led the EC to adopt a complete ban on growth hormones in 1985.

In the Council of Ministers, the UK was the staunchest opponent of a ban. The UK Government challenged the ban on formal grounds before the European Court of Justice. Although the Court ruled in 1988 that the 1985 Directive was indeed void on procedural grounds, it was readopted soon afterwards. Since then, the UK has remained the only consistent opponent of a complete ban among the EC Member States.

Apart from a ban on the use of growth hormones within the EC, the Directive also banned the imports of meat from countries that continued to allow the use of growth hormones. The ban had to be framed in terms of the ‘use of growth hormones’ rather than hormone levels in meat, because it covered both natural and synthetic growth hormones. Synthetic growth hormones can be detected in an animal’s meat, but when natural growth hormones are inserted into an animal, it is impossible to distinguish the added hormones from the natural hormones produced by the animal itself. If administered correctly, the residues of added growth hormones in meat will usually fall within the natural variation in these natural hormone levels.

In 1996, both the US and Canada requested the establishment of a WTO panel to overturn the ban. Earlier that year, the EC had adopted a new Directive amending the 1988 Directive and consolidating earlier Directives, and the new Directive became the subject of the dispute before the WTO panel. Formally, the US and Canadian complaints were two separate disputes, but the composition of the two panels was identical, as were most of the conclusions in the panel reports.

The panel reports concluded that the European import ban violated the SPS Agreement in three ways. First, the ban was not based on the Codex standards that had been adopted the year before, which effectively shifted the burden of proof to the EC. Second, the ban was not based on a risk assessment, since the EC could not show convincing scientific evidence for the health risks of the growth hormones. And third, the hormone ban went beyond the level of protection offered by European regulatory standards for other substances in food, which resulted in ‘arbitrary or unjustifiable distinctions in the levels of sanitary protection’.

In the appeal before the WTO’s Appellate Body, the first and last conclusion of the panel were reversed. The AB maintained, however, that the European ban was not based on a scientific risk assessment. As a consequence, the ban violated WTO law.

The reason it remains a talking point is that “hormone beef” sounds sufficiently spooky that remainer panic peddlers can make hay with it. Personally I’m not keen on the idea because it doesn’t respect animals and will always favour organic domestic produce but that’s neither here nor there. The basis for excluding it from EU markets was not a scientific case and the ban was maintained by way of European agriculture lobbyists perpetuating junk science. EFSA is notoriously influenced by lobbyists.

If you’re so inclined you could dig into WTO SPS committee minutes and you’ll find several of these instances all of a similar dullness. This is going to become more and more familiar territory for trade and Brexit watchers. When the EU implements a ban, it can be as simple as a misapplication of regulation, sometimes unintentionally, and the there are other times when there a lobbyist fingerprints all over it. In every case we cannot afford to simply take the EU’s word for it.

Though we have left the single market to become a third country (an ill advised move in our view), and subsequently third country controls now apply, exclusions of British produce is not necessarily a good faith act on the part of the EU. This is the very essence of trade disputes and it’s why the TCA has dispute settlement processes.

This certainly seems to be the case with bivalve molluscs, where the “ban” is more an administrative exclusion rather than a regulatory one – and must be challenged as such. And we can expect the same kind of bullshit food politics to crop up. All of a sudden UK waters go from being safe and clean EU waters to filthy E.coli riddled swamps and no self-respecting remainer blames the EU for keeping our goods at arms length. If EU based lobbyists want the “ban” upheld, that’s the place they’ll go to when attempting to influence the relevant authorities.

What we cannot afford to do is take the EU position at face value nor can we take the media’s word for it. Making the running on the mollusc issue is James O’Brien, whose main source of “information” appears to be a somewhat popular twitter thread. That’s as far as their curiosity goes. So long as brexiteers can be blamed and they get a nice easy cheap shot out of it, they don’t care if livelihoods are destroyed by spreading disinformation.

One can quite understand continued disapproval of Brexit, but the eagerness to demonise UK at every turn, and to always give the EU the benefit of the doubt is a deeply disturbing trend – particularly when the EU has a long and distinguished track record of abusing regulatory controls to freeze out competition. Only a fool takes the Commission at their word.