Since 2013, the United States has been contesting by all means available the European regulation of these chemicals in the name of free trade. Part 3 of 3.
The United States does not hide it. In some cases, they would like to write European law instead of leaving it to Europe. Among the cases: endocrine disruptors, these chemicals that are present in our everyday environment and capable of hijacking the hormonal system of living beings.
Since 2009, the European Commission has been working on the issue of their regulation. The topic is all the more sensitive as this regulation will be unprecedented, imposing new standards for the rest of the world. All trading partners who want to continue exporting their products to the EU, including the United States, will have to comply with them.
In highly technical documents, the American government expresses its position with unreserved criticism and requests that verge on political interference. Of particular note is this text, conveyed to the Commission on January 16, 2015, within the framework of a consultation on the various regulatory options envisaged. It says: "If the Commission were to be provided with evidence supporting an option not among (those) presented, would this be considered?”
The question is convoluted but the implication is clear: the United States does not only propose rewriting the law but disputes the very principle of the regulation as far as endocrine disruptors are concerned.
The origin of the tension is the European regulation on pesticides of 2009. Very strict, it foresees a ban on pesticides that have endocrine disrupting properties. This principle of "hazard assessment" a priori antagonizes the U.S. government. "Implementation of any hazard-based ‘cut off’ option," it writes, “could have severe implications for EU imports of U.S. agricultural goods." Contrary to the political will of Europe, the U.S. government calls for a return to the traditional philosophy of "risk assessment", which is undertaken a posteriori.
The United States does not only propose rewriting the law but disputes the very principle of the regulation as far as endocrine disruptors are concerned.This U.S. pressure on the EU actually began in June 2013 at the meeting of the World Trade Organization (WTO) Committee on Technical Barriers to Trade. The U.S. representative shared the “concerns” of his government, but also those of its industry, which feared "significant and unwarranted dislocations in trade.”
In the months that followed, the American concern spread to another WTO committee specifically responsible for pesticides and food. The “aggressive and well-orchestrated attacks” are recorded in a European Commission internal note of August 2015 seen by Le Monde. No one can be mistaken, there is a threat of prosecution looming.
It is in these WTO committees that the question of non-compliance with “international sanitary and phytosanitary measures”, known as SPS, is raised.
A report in March 2016 says that Canada considers the regulation "only served to undermine international trade in agriculture and contravened the fundamental principle of the WTO SPS agreement, which was to base measures on scientific risk assessments and not to maintain them without scientific justification." Indeed, the U.S. has brought other countries onto its side: by summer 2016, the heterogeneous alliance included more than twenty countries, including China, Togo and Jamaica.
Given that the proposal that causes so much bitterness was adopted in 2009, why did the U.S. wait until 2013 to complain about it within the framework of the WTO? Because 2013 was in fact a pivotal moment in the European decision-making process on endocrine disruptors. At the beginning of 2013, the Commission set on a very different path. Its Directorate-General (DG) for the Environment, which was leading on the dossier, had just proposed its chosen option.
Drawing on the classification used for carcinogenic chemicals, it would allow substances to be divided into two categories: ‘suspected’ or ‘known’ endocrine disruptors. This option is supported by the scientific community, non-governmental organizations and certain member states, including France, while industry is violently, and openly, opposed to it.
A lobbying blitzkrieg against it took place in June 2013. It was a letter from CropLife America, the lobbying organization for the U.S. pesticide industry, which first suggested to the U.S. authorities that they challenge the option with the help of WTO rules.
“The U.S. Government should defend itself using the authority of the SPS Agreement under WTO if the EU pursues its proposed new regulatory regime …. without an approach based on risk assessment”, wrote CropLife America, May 10, 2013, to the office of the U.S. trade representative. The letter added: "CLA stands ready to provide supporting documentation."
Surprisingly, the hostility of the U.S. and its allies has changed little while the position of the Commission has changed radically.
The option of DG Environment, which has since been divested of the file, was buried in July 2013. The new proposal from the Commission announced on June 15, 2016—even though it is judged very protective of the interests of companies—continues to satisfy neither the industry nor the critics at the WTO. A delegation of ambassadors to the EU came to the office of the European Commissioner for Health in July 2016 to express their discontent.
At the end of August, a final warning shot came via WTO. While Canada evoked a "negative, unnecessary and unjustified impact on trade", the U.S. government continued to challenge the "soundness of the EU's approach." As "supporting documentation": the letters of several industrial organizations including the American Chemistry Council and CropLife America.