Tuesday, July 8, 2008

The Absurdity & Multitude of European Fruit & Vegetable Standards Can Best Be Explained in Terms of Disguised Protectionism


Europe Debates Perfection It Demands of Its Produce

By John Ward Anderson

Washington Post Foreign Service

July 8, 2008

PARIS -- When is an onion more than an onion, or less? How can consumers choose between a carrot and a mere pretender? That bendy cucumber, those wannabe peaches -- do they have the firmness of character to be on the shelf?

Urgent and vital questions all, especially for lawmakers in the European Union, which has 34 regulations on marketing standards -- from the allegedly essential to the patently absurd -- for fruits and vegetables.

Consider the Class I cucumber, which must be "practically straight (maximum height of the arc: 10 mm per 10 cm of the length of cucumber)." Translation: A six-inch cucumber cannot bend more than six-tenths of an inch. Following 16 pages of regulations on apples (Class I must be at least 60mm, or 2 1/3 inches, in diameter) come 19 pages of amendments outlining the approved colors for more than 250 kinds.

As for peaches, "to reach a satisfactory degree of ripeness . . . the refractometrix index of the flesh, measured at the middle point of the fruit pulp at the equatorial section must be greater than or equal to 8° Brix."

Had enough? So has the European Commission's agriculture commissioner, Mariann Fischer Boel of Denmark. She proposes scrapping all but 10 of the regulations, arguing that they are needlessly cumbersome and bureaucratic, and that they lead to people throwing away perfectly edible fruits and vegetables for cosmetic reasons at a time when the world is suffering food shortages and rapid price increases. She hopes representatives from the 27-nation bloc will vote to streamline the regulations at a meeting this month.

"We don't need 34 regulations to decide how round an artichoke should be or how thin a cucumber can be," said Boel's spokesman, Michael Mann, noting that such rules give the E.U. its reputation as an out-of-control bureaucracy. "

A bent cucumber is as good as a straight one," he declared. "Let the shopper decide."

But Boel has a fight on her hands, European officials say, because as many as 19 E.U. countries apparently oppose the simplification scheme. A note to the European Commission from the Spanish and Italian delegations, backed by France and Hungary, argued that "marketing standards play an important role in facilitating and ensuring transparency in market operations while protecting customers at the same time." [DISGUISED PROTECTIONISM IS AT PLAY!!]

The regulations are particularly ridiculed in Britain, where, according to a recent article in the Independent newspaper, "the bent cucumber -- beside its maligned compatriot, the straight banana -- has been wielded by Eurosceptics eager to clobber the European Union." London's Daily Mail gushed that "bendy cucumbers, nobbly strawberries and apples the wrong shade of red are to make a comeback in our supermarkets."

The E.U.'s regulations set three quality standards (Extra, Class I and Class II) that require vendors to carefully label their products. That enables them to charge higher prices for better-looking and, according to Gerard Ioli, owner of an upscale produce stand a few blocks from the Eiffel Tower, better-tasting fruits and vegetables.


In Ioli's store, as in many French markets, customers are not allowed to touch the produce, so there is no squeezing of avocados, thumping of watermelons or smelling of cantaloupes. [PRECISELY. THE CONSUMER IS NOT PERMITTED TO SEE WHETHER THE THE FRUITS OR VEGETABLES MEET THE STANDARDS OF PERFORMANCE SET FORTH ON THE LABELS. RATHER, CONSUMERS ARE COMPELLED TO TRUST THE 3RD PARTY CERTIFICATION ON THE LABEL.]

Ioli palmed two identical-looking cherry tomatoes -- one classified Extra, the other Class I -- and offered a taste test to prove that all tomatoes are not created equal. Sure enough, the Extra was sweeter, juicier, pulpier and all around superior. "My clients know what they are buying, and they know that if it's labeled 'Extra,' it tastes better and costs more, and they will buy it," he said.

David Parsons, 39, a telecommunications consultant from Boston, has become something of a veggie regulation evangelist in the 10 years he has lived in France. "People will pay for the value of what they see and what they taste," he said while browsing at Ioli's stand. ". . . The French want fruit to be ripened on the vine to get the most vitamins."

But for others, the efforts to regulate produce have simply gone too far.

Let's consider the onion for a moment, and the E.U.'s "Regulation (EEC) No 2213/83 of 28 July 1983 laying down quality standards for onions and witloof chicory." You would think that the 10 pages of standards and the 19 amendments and corrections made in the 25 years since the regulation's enactment would leave little doubt about the required size, shape and color of an onion, and the amount of peeling, bruising, staining, cracking, root tufting and sprouting that is permissible. You would be wrong.

In January 2007, the Dutch Ministry of Agriculture issued a report in which it took 29 pages to explain "quality standards for onions," complete with 43 photographs.

Tuesday, June 17, 2008

Green & Healthy Industry Standards Increasingly Used to Secure a Competitive Advantage, Give Rise to Lawsuits


Sorting Through The Confusion In Personal Care Certification

By Marc S. Reisch

Chemical & Engineering News

May 12, 2008

Volume 86, Number 19, at p. 16

Personal care product certification standards have become a high-stakes, hotly contested issue.
Late last month, Dr. Bronner's Magic Soaps sued personal care product makers Jason Natural Cosmetics and Estée Lauder, along with Stella McCartney's Care and two standards certification organizations, Oasis and Ecocert, to "stop them from making misleading organic labeling claims."

Dr. Bronner's, an Escondido, Calif.-based maker of cleansing and moisturizing products that claims its main ingredients are made with certified organic materials, filed the suit in California Superior Court together with the Organic Consumers Association.

"We have been deeply disappointed and frustrated by companies in the 'natural' personal care space who have been screwing over organic consumers, engaging in misleading organic branding and label call-outs on products that were not natural in the first place, let alone organic," company President David Bronner said in filing the suit.

Bronner claimed, for instance, that the major cleansing ingredient in Jason's natural and organic liquid soaps, body washes, and shampoos is "sodium myreth sulfate, which involved ethoxylating a conventional nonorganic fatty chain with the carcinogenic petrochemical ethylene oxide, which produces carcinogenic 1,4-dioxane as a contaminant."

The suit also charges that certifying organization Ecocert "engages in creative misinterpretation of its own rules in order to accommodate clients engaging in organic mislabeling." It charges that the recently formed group Organic & Sustainable Industry Standard (Oasis), largely backed by U.S. industry stalwart Estée Lauder, has set weak standards. Oasis, it charges, permits use of the label "organic" even if personal care products contain hydrogenated and sulfated ingredients "such as sodium lauryl sulfate made from conventional agricultural material grown with synthetic fertilizers, herbicides, and pesticides and preserved with synthetic petrochemical preservatives."

As the Dr. Bronner's suit suggests, there is a great deal of confusion in the industry over organic standards. In many cases, cosmetic makers are still grappling with definitions of what is natural, organic, or sustainable. Many of the standards organizations are in talks to harmonize the standards among them, but some in the industry are skeptical about their ability to agree.

Dr. Bronner's was itself part of a working group at the Washington, D.C.-based Natural Products Association that was formed about a year ago to come up with a definition for the term "natural" as it applies to personal care products. NPA issued its definition and natural seal earlier this month. "Arriving at a clear definition for use of the word natural is something both our industry and consumers want," says Daniel Fabricant, NPA's vice president of scientific and regulatory affairs. Other terms such as organic and sustainable are really subsets of natural, Fabricant says.

NPA's natural certification seal will appear on personal care ingredients that meet its definition of natural. Formulations must be at least 95% natural and involve no processes that adversely alter purity. In addition, the products must contain ingredients that come from a renewable or plentiful source. The standard permits nonnatural ingredients only when "there are absolutely no suspected potential human risks."

Other U.S. groups are also working on standards for personal care products. NSF International, which defines itself as a "public health and safety company," published a 46-page draft document earlier this year to define a standard for organic personal care products. According to the group, the standard under development will not address toxicology or social responsibility but only organic label claims.

Oasis has developed its own standards to certify formulations containing synthesized ingredients using certified organic plant materials. According to Oasis, "There has been no united voice among health and beauty companies that has supported credible development of organic and sustainable production, or the ability to communicate what this means to retailers and consumers." In addition to Estée Lauder, founders of the group include ingredient maker Cognis and personal care product companies such as Aveda and L'Oréal.

In February, the Canadian environmental, health, and food safety standards certification firm Certech Registration began offering natural and organic certification to cosmetics makers. According to its President Brian Lane, until Certech began to offer its own standards certification, North American firms had to resort to regulation intended for agricultural products, such as the U.S. Department of Agriculture's National Organic Program.

Europeans are further ahead in the effort to define and certify cosmetic products. France-based Ecocert was founded in 1991 largely to certify organic food products. In the U.K., the Soil Association certifies personal care products that meet its standards for organic content. Another European group, the European Natural & Organic Cosmetics Interest Grouping (ENOCIG), recently formed a partnership with the German Cosmetic, Toiletry, Perfumery & Detergent Association (known by its German initials IKW) to establish the NaTrue label for natural cosmetics. And the Federation of German Industries & Trading Firms (known by its initials BDiH) also has a set of standards governing natural personal care ingredients.

Certification standards are still up for debate and are likely to continue causing confusion. But unless ingredient makers and formulators sort out their differences, the subject of what is natural, organic, and sustainable may have to be sorted out in court.

Monday, March 31, 2008

Using Eco-Labels to Promote Producer & Consumer Behavior Modification May Very Well Give Rise to Disguised Trade Barriers, Admits UN


The Trade and Environmental Effects of Ecolabels: Assessment and Response

United Nations Environment Program (2004)

Executive Summary

There is no easily accessible, independent body of data on the environmental effectiveness of ecolabelling. Despite the relatively high profile of the five labels that are the focus of this study, adequate data does not even exist on them. Anecdotal evidence and proxy indicators (many of which are imperfect) are not a sufficient basis for evaluating the environmental usefulness or desirability of ecolabelling programmes. In addition, it is currently difficult to isolate the effects of labelling from other variables that could lead to more sustainable production and consumption. There remains an urgent need to collect additional, reliable scientific data on the
environmental effects of existing ecolabelling programmes.

Neither is reliable, quantified evidence available concerning changes in trade flows – positive or negative – related to ecolabelling.

Minimizing undesirable trade effects

Two problems deserve to be given particular attention:

the lack of checks or balances in regard to the proliferation of ecolabels, including the lack of any way to harmonize existing and new ones; and

the cost of conformity assessment (often the most significant barrier for developing country producers), which is related to the proliferation of ecolabels.

The discussions on ecolabelling within the World Trade Organization (WTO) seem unlikely to progress in the short to medium term. Discussions on ‘labelling for environmental purposes’ under the Doha agenda are taking place in the Committee on Trade and Environment (CTE). This committee has no authority to create new rules on labelling or to amend existing ones. The Committee on Technical Barriers to Trade (CTBT) has the authority to create new rules in this area, but it remains unconvinced that rules for ecolabelling should differ from those for other types of labelling programmes. In any case, the CTBT is unlikely to turn its attention to
ecolabelling before 2006 at the earliest.

Even if WTO members were to discuss the need for new ecolabelling rules in the CTBT, anything this committee decided would impose rules only on governments. The WTO Agreements do not directly impose obligations on the types of private bodies that develop most ecolabelling programmes, nor do they impose obligations on companies establishing purchasing requirements or buying preferences. The WTO does not provide a forum that includes these bodies and other non-governmental stakeholders in the trade of ecolabelled goods. For all these reasons, the WTO does not appear to be adequately equipped to address the issue of this type of environmental requirement, which is increasingly being imposed through supply chains.

...(pp. 24-26)

Potential impacts of ecolabelling As mentioned earlier, no reliable information is available on the extent to which any of the five ecolabels has affected trade flows from developing countries because of their possible role as technical barriers to trade. To date, almost no concrete concerns have been expressed within the WTO or any other forum regarding a specific Type I ecolabelling programme.

Concerns have tended to be general in nature and to be directed at environmental labelling in general. A review of the potential negative impacts of ecolabelling can do little more than summarize the widely expressed but largely unsubstantiated concerns expressed by WTO members.

[ Polak, John, 2003: ‘Trade as an Environmental Policy Tool? GEN, Ecolabelling and Trade,’ paper presented at the World Trade Organization Public Symposium: Challenges Ahead on the Road to Cancun, ‘Ecolabelling: Trade Opportunities & Challenges’, 16-18 June 2003. One exception has been the March 1998 submission by the Colombian Government to the WTO CTE CTBT setting out its concerns about the various European ecolabelling schemes for flowers. See WT/CTE/W/76 and G/TBT/W/60, World Trade Organization, Geneva, 9 March 1998.]

...To understand the range of concerns expressed by WTO members, it is important to note that within the WTO context an ecolabel is treated as a specific type of standard, accompanied by a mark of conformity. Therefore, virtually all the concerns WTO members have expressed about standards and conformity assessment procedures, and virtually all the problems they have with implementing the Agreement on Technical Barriers to Trade (TBT), exist in the context of ecolabelling.

[Both the Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on Sanitary and Phytosanitary Provisions (SPS Agreement) contain provisions relevant to ecolabelling. For the sake of clarity and simplicity, this paper focuses on the TBT Agreement.]

...The TBT Agreement outlines certain procedural obligations that are intended to ensure that standards, technical regulations and conformity assessment procedures are not prepared, adopted or applied by one member in such a way that they impose unnecessary or unjustified barriers to trade on other members. In particular, Annex 3 of the TBT Agreement outlines a Code of Good Practice (Standards Code): a number of requirements relevant to the development of voluntary standards. The first of these procedural requirements is the use of international standards.

Article F of the Standards Code calls on standards bodies to base their work on relevant existing or imminent international standards. This presents problems in the case of ecolabels. One problem is that, apart from the generic ISO 14020 series of ecolabelling template standards and the generic ISO 14040 life-cycle assessment standards, both of which are tools for developing ecolabels rather than actual ecolabels, there are very few international ecolabels. Ecolabels are generally developed based on national environmental priorities and preferences. They have evolved outside the context of traditional national standards bodies, and therefore outside the context of international standardization infrastructure. Moreover, there is no working definition of ‘international standard’ in the TBT Agreement.

Because there is no legal basis for ensuring that new standards do not overlap or conflict with existing ones, there is no check on the proliferation of ecolabels. Since developing countries are standards takers, some in the trading community argue that a proliferation of ecolabels can greatly increase the cost to these countries of accessing different markets. This is one of the main complaints expressed by developing country exporters. In the case of each of the five ecolabels discussed in this report, there is a variable degree of competition between different standards and frequently there is no scientific information available to justify the differences.

Some experts believe that some bodies that develop ecolabels have been set up for the express purpose of offering an alternative to existing ecolabels, either as a way to add confusion to the marketplace or to provide alternatives with less strict criteria.

[‘Building Bridges: Ethical Standards, Sustainable Development and Trade’, meeting report, Geneva, Switzerland, 12-13 June 2003, meeting sponsored by the Rockefeller Brothers Foundation and GTZ; on file with the author.]

Articles J, K, L and M of the Standards Code address issues related to transparency and coordination. They call on standards bodies to publish a work plan every six months, to associate with national members of ISONet, to allow comment periods of at least 60 days, to publish a notice of the comment period, and to provide drafts of standards for comment to any interested party within the territory of a WTO member. Because most ecolabels are developed by non-governmental bodies outside the traditional standards networks and infrastructure, it is likely that many ecolabel practitioners are unaware of (or lack the means to implement) these
procedural provisions. In some cases, traditional national standards bodies (e.g. ISO member bodies) are unwilling to interact with non-traditional standards bodies developing ecolabels, and vice versa. As a result, it is often very difficult for producers in one country to obtain timely information on the existence or specific requirements of an ecolabel in another country.

[ISONet (the ISO Information Network) is an agreement between standardizing bodies to combine their efforts in order to make information on standards, technical regulations and related matters readily available whenever it is required. See http://www.wssn.net/WSSN/RefDocs/isonetdir/introduction.html .]

Article 5.1.2 of the TBT Agreement requires WTO members to encourage non-governmental standards bodies operating within their territory to ensure that conformity assessment procedures are no stricter than necessary.

The cost of third-party certification has been identified generally as a particular concern of SMEs and low-cost producers in developing countries. From a trade barrier perspective, the important issue with regard to certification costs is whether these costs are relatively higher in developing countries than in developed ones. Statistically significant data on the costs of certification does not exist, but it is widely accepted that certification costs are a function of:

• the availability of domestic certification (and hence accreditation) services;

• the size of the facility; and

• the gap between existing practices and the requirements of the ecolabel.

The accepted wisdom is that conditions in developing countries are such that each of these factors contributes to relatively higher certification costs vis-à-vis those in developed countries. It is also significant that the only conformity assessment procedure accepted by most ecolabelling programmes, and all of the programmes addressed in this report, is independent third-party certification. It would be worthwhile to assess whether some markets would accept second-party certification or self-declarations of conformity for some types of ecolabels under some circumstances.

Article 6.3 of the TBT Agreement requires WTO members to encourage non-governmental standards bodies operating within their territory to be willing to enter into negotiations for the conclusion of agreements on the mutual recognition of conformity assessments procedures. As mentioned above, many ecolabels, including those of the FSC, MSC and FLO, maintain a monopoly over the accreditation of conformity assessment service providers and therefore do not enter into mutual recognition agreements with other competent bodies. FSC auditors are also forbidden from certifying to any other SFM standard. Experience with mutual recognition
agreements is very thin on the ground. However, a system for mutual recognition has been established under the Japanese national organics regulation, whereby Japanese-accredited conformity assessment bodies can enter into ‘trust contract of providing inspection data’ with International Organic Accreditation Service (IOAS)-accredited certifiers in the country of production.

[See, for example, OECD, 2002: Government Regulations Affecting Trade in Products of Organic Agriculture, COM/ENV/TD (2002)86/FINAL, p. 22.]


See Eco-Fashion or Eco-Fashism: How Involved is the EU Commission in Promoting 'Market-Based' Eco-Labels as Disguised Trade Barriers?


At the World Summit on Sustainable Development in Johannesburg last year, governments urged active work to speed the shift to sustainable production and consumption. They noted
that while all countries must be involved in this effort, the developed countries should take the lead. In February [2003], at UNEP’s Governing Council meeting, ministers voted to strengthen work on sustainable consumption, promote design of sustainable products and services, reinforce voluntary work with business sectors, and increase support for awareness-raising campaigns.

UNEP is also working through the UNEP-SETAC Life Cycle Initiative – and an exciting new project to enhance the image of green lifestyles – to increase the availability and impact of information in this area. As part of the effort to promote more sustainable production and consumption, UNEP has stepped up its activities with the retail sector, whose role lies particularly in helping change consumption patterns.

To realize the importance of this sector, just think about your last retail transaction. It may have involved something as small and simple as a cotton T-shirt or a packet of ground coffee. Or perhaps it was a major purchase – a leather-and-wood armchair or a refrigerator-freezer. We do not ordinarily stop to consider the multitude of environmental and social effects that a single,
seemingly simple transaction can have.

For instance:

resource use – from metal extraction to consumption of water and wood (the latter possibly involving unsustainable forestry);

energy use – by your car if you drove to the store where the purchase was made; by the store itself, any vehicles involved in delivering products to the store, and employees’ personal

by wholesalers;

and by the furniture assembler, leather producer, animal breeder, wood cutter, fabric mill, coffee packager, and so on.

And don’t forget the CO2 emissions connected with all that energy consumption;

waste generation – any packaging you throw away when you get home is just the tail end of a long stream that begins in the mine, the coffee grove, the farmyard or the forest;

negative land use effects – e.g. damage to the landscape from suburban megastores and surface sealing by their huge parking lots;

possibly, dubious labour standards at the store or farther up the supply chain;

the risk of health effects for you and your family, as well as store and supplier employees, if the use of hazardous substances (e.g. arsenic in wood treatment, heavy metals in appliance
manufacture) is involved.

See Shopping for a better world: sustainability and retailing, Industry and Environment Volume 26 No. 1 January – March 2003, United Nations Environment Program at: http://www.uneptie.org/media/review/vol26no1/UNEP0103.PDF .

Wednesday, March 26, 2008

The Emperor's Wife Wears No Clothes - How to Improve the International Standards of Public Officials


Nude Photos Stir Up Sarkozys' UK Visit


Posted: 2008-03-26 09:25:38

LONDON, England (March 26) -- French president Nicolas Sarkozy has started his first official visit to the UK -- the day after it was reported that an auction house is to sell nude pictures of his new wife.

Sarkozy and his wife, the former supermodel Carla Bruni-Sarkozy, were greeted by the Prince of Wales and Duchess of Cornwall after the presidential plane landed at London's Heathrow airport Wednesday morning.

He was then escorted to Windsor, where he was formally received by the Queen and the Prince of Edinburgh before being taken by carriage through the town.

The French president will enjoy a full state banquet at Windsor Castle Wednesday night, where he will stay as the guest of the Queen. On Wednesday afternoon Sarkozy will address both House of Parliament in French.But his wife Bruni-Sarkozy is likely to attract as much, if not more, attention than her husband during the two-day visit, during which she is expected to meet the UK royals and attend a lunch held in her honor by Sarah Brown, wife of the UK prime minister.Auction house Christie's is to sell photographs of former model Bruni-Sarkozy, taken by Michel Comte in 1993, in New York next month, The Associated Press reported Tuesday.

The agency quoted the French president's office as saying the sale is a private matter.The UK media has covered the president's courtship of Bruni-Sarkozy and subsequent marriage in depth, with several using her visit as reason to reprint images from her modeling career.Many observers in France see the presidential trip as a bid by Sarkozy to regain some of the popularity that saw him elected last May. Watch why Sarkozy is slipping in approval ratings at home. »Since then he has provoked controversy at home with his high-profile relationship with Bruni-Sarkozy, as well as his attempts to shake up French pension and labor laws.On Tuesday Sarkozy hinted that he might boycott the opening ceremony on the Beijing Olympics this summer, agencies reported, following pressure at home to take a tough line on the Chinese crackdown in Tibet.

Closer co-operation on Afghanistan, the credit crunch, immigration and nuclear power are all expected to dominate talks between Sarkozy and UK Prime Minister Gordon Brown.In an interview with BBC Radio ahead of the visit, Sarkozy said that the UK and France needed to shift from "being cordial to being friendly", the UK's Press Association reported, adding that he wanted the relationship to be "fleshed out by concrete projects on the economy, immigration, security, defense."

"It has been long enough now that we have not been at war, that we are not wrangling," Sarkozy is reported to have said.On Thursday Sarkozy is expected to have talks with UK prime minister Gordon Brown at Downing Street, followed by a UK-France summit at the Emirates Stadium, home to Arsenal Football Club, which boasts a French manager and high percentage of French playing staff.He will then present record-breaking yachtswoman Ellen MacArthur with top French award the Legion d'Honneur at the Old Royal Naval College in Greenwich.

Wednesday, March 12, 2008

Since 2005 China Has Tried To Amend The WTO TBT Agreement & Favored Open, Not Proprietary Standards: Why Has China Not Learned The Value Of IP Rights?


China Leads Developing Country Push For Balance In IP And Standards

Intellectual Property Watch

24 April 2007

By William New

BEIJING - China’s rapid development can be seen everywhere in the capital, where the skyline is perforated by construction cranes in all directions. But China’s vigorous effort to update structures does not stop at its borders. China is one of several leading developing countries that have become players on the global economic stage and now are demanding a balancing of global governance institutions.

Key developing countries such as China, Brazil, India and South Africa are increasing their efforts to influence global standards-setting proportionate to their rising economic might. But this effort may require substantive changes to the existing structure, changes that some say are already taking place.

A key focus is on the treatment of standards for technology and the related intellectual property rights. Yi Xiaozhun, vice-minister of the Chinese Ministry of Commerce, said at a conference last week that standards and IP rights are critical for economies such as China’s that are basing their development on science and technology. But, he said, an “inappropriate convergence” between standards and IP rights has “caused problems.”

“Delayed or inadequate IPR [intellectual property rights] disclosure, stringent IPR licensing conditions and expensive licensing fees run counter to fair competition, hinder the promotion and application of new technologies, obstruct the normal operation of international trade and impede the harmonious development of global economy and society,” Yi said at an 17-18 April conference cosponsored by the commerce ministry and other Chinese agencies, as well as Sun Microsystems. “Developing countries are the worst hit by such problems which effectively hinders their greater participation in economic globalization.”

Chinese officials such as Yi say international standards bodies, which are typically based in western developed countries, have begun to recognise the imbalance in their policies that insufficiently reflect the interests of developing countries. “Standards bodies are mainly controlled by developed countries,” he said. As a result, new standards putting developing countries in an “underprivileged position” have “become new obstacles to international trade.”

Yi urged the World Trade Organization to take into account changes made in the standards bodies. China has argued at the WTO since 2005 for changes to the WTO Agreement on Technical Barriers to Trade (TBT), and officials at the conference vowed to continue the fight.

“China holds that in order to ensure smooth implementation of the TBT agreement, attention should be given on the one hand to the efficiency and quality of setting international standards, and on the other hand to the difficulties members face in adopting international standards,” he said.

A primary concern is that standards in the public interest can be affected when it turns out that hidden underlying patents give monopolistic licensing power to companies, usually in the developed countries that own most of the world’s patents. Yi suggested that consortia, groups of industry experts and others assembled to accomplish tasks such as a standards change, may use monopoly power to push their interests in standard-setting. “We cannot deny that an international deviation effect arises,” he said.

In the speech, Yi stressed China’s seriousness about further increasing efforts to protect and enforce intellectual property rights, even though “IPR has created new barriers in the form of standards which have harmed developing countries.”

Manuel Lousada Soares, Brazil’s deputy secretary for industrial technology at the Ministry of Development, Industry and Foreign Trade, did not fault companies for protecting their innovations or consortia for promoting standards. He said the problem is when standards impact public interest issues.

Soares said the TBT agreement states that a technical regulation should be “presumed not to create an unnecessary obstacle to international trade.” He cited efforts by standards bodies to improve early disclosure of patents in standards. Soares reiterated the concern about hidden patents getting included in standards, and said standards can be developed without the technical solutions protected by patents. Brazil backs standards bodies’ efforts to find ways enforce early disclosure, and encourages more cooperative work on the issues, including at the WTO, WIPO and the standards organisations, he said. This includes better analysis of the issues as well as better definitions of terms, he said.

China’s Strategy for Standards

Ni Guangnan, a fellow at the Chinese Academy of Engineering, criticised the standards status quo and laid out a strategy for China to gain influence over standards. He said proprietary standards “cause unfair competition.”

“In the IT [information technology] field, some technologies or products prevail and are thus accepted as de facto standards,” he said. “If these standards are not made open, their intellectual property right will be owned by companies developing them and then become proprietary standards, which will further prevent other rivals from growth and contribute to the monopoly of the companies. For example, Microsoft’s Windows, Office and IE browser.”

Proprietary standards have the negative impact of impeding fair competition, imposing high costs on users, and are a security risk, he said. Therefore, “the adoption of open standards will be promoted,” he said, because they generate fair competition, impose less burden on users, and provide greater system security.

Ni said China, in order to help its companies which have been struggling with the high royalty payments charged by patent-holders whose technologies were accepted in standards, plans to a series of actions. They will form their own patent pools, and will gain the support of international standards development organisations, and will participate in the drafting of standards favourable to China. Government agencies will assist companies in responding to intellectual property rights disputes.

Another plan is to back ex ante RAND terms, meaning disclosure of intellectual property rights before the establishment of a standard, and [license] standards on a reasonable and non-discriminatory basis, which has gained support of the US Justice Department. Also, China will support open-source code in software “because its use, copying, modification and re-issuance don’t require royalty,” he said. China also will support open standards for critical areas, he said. De facto standards for Microsoft’s Office have been the dominant document format, which Ni said “has hindered fair competition and prevented manufacturers from getting access to public and important information.”

Richard Suttmeier, a political science professor at the University of Oregon (US), suggested that the rise of “fragmenting” free-trade agreements might have implications for standardisation. He also said the rise of large new economies voicing dissatisfaction raises the question of how much existing economies are interested in reforming organisations or replacing them with something else, as well as to what extent it would be possible to raise coalitions to bring about change.

Zhang Naigen, law professor and director of the international law and intellectual property study centers at Fudan University (China), said the US and the European Union emphasized private rights of intellectual property rights but that they differ on antitrust law. China is still working on its antitrust law, he said.

Andrew Updegrove, an attorney at Gesmer Updegrove in Boston who represents standards coalitions, said patent holders might be the “new colonialists” and said that those who can control standards can control markets. He said a danger is if newly large economies who make their own standards. He encouraged policymakers to seek standards that are in the best interest of all.

Rishob Ghosh, senior researcher at the Maastricht (Netherlands) United Nations University, cited examples of standards that became institutionalised through heavey popular use even though better technologies followed, such as keyboards.

Patrick Rata of the World Trade Organization trade and environment division said the 2005 WTO report on trade showed the application of standards can have beneficial and negative effects on trade. He said the WTO TBT Agreement is flexible on the measures governments take, but says they should not unnecessarily restrict trade. The agreement contains encouragements to harmonise, and says standards should be developed in a transparent and indiscriminate way. Rata also said it would be up to China to decide whether to pursue its concerns about the TBT and standards and to “gauge the interest of other governments” in changing the agreement. China brought it up again in March, he said.

US Officials Busy in China

A number of US officials have been busy in Beijing in recent weeks for a variety of reasons. These include talks on innovation, intellectual property rights and standards, with officials such as Mark Lewis, a US standards expert. Last week, Chris Adams, soon to be the new USTR official in China, was in town with fellow USTR officials Tim Stratford, assistant USTR for China Affairs, and Audrey Winter, his deputy. Last week officials from the two governments met on the Joint Commission on Commerce and Trade (on structural issues and trade remedies), and this week a planning meeting was expected to held in Beijing for the Strategic Economic Dialogue, an event led by Treasury Secretary Henry Paulson in late May. The JCCT involves USTR and the US Commerce Department together.

Audrey Winter, deputy assistant US trade representative on China affairs, speaking on her own behalf, said in the United States, the government generally leaves standards-setting to private organisations as government might not know what is best for consumers or business. China is considering its anti-monopoly law, and Winter said recent legal cases and statements by US antitrust authorities have set boundaries for action in the area in the US. International trade rules, she said, are aimed at getting government out of the market.

Speaking at a separate 19 April conference at Beijing (Peking) University, Mark Cohen, the US Patent and Trademark Office representative in Beijing, highlighted the debate in China over whether intellectual property rights are a private right, as in the west, or a public right. He referred to Chinese government subsidies for domestic patent applications and said treating IP rights as a private right encourages “robust” innovation, and would lead China to become “a truly innovative economy.” Cohen also downplayed the role of foreign firms in the Chinese IP market as very small.

Also at the 19 April conference, Sun Microsystems Chief Standards Officer Carl Cargill said a lack of research into how standards related to information and communications technology are made makes it an “uncharted area” made up of side deals” consisting of “whispers” and “hopes.” He said no one coordinates consortia and that there are more than 500 standards organisations with few changes since the 1970s. “They never die,” he said.

Cargill also said that standards organisations are unwilling to take full responsibility for identifying who owns the intellectual property rights underneath standards, so the costs of standards are unknown but there is no way to avoid the rights. If one doesn’t pay for them, it’s illegal, if they don’t use them they’re out of the competition, and nations that try to make their own standards as China did with mobile standard WAPI are stopped, he said.

Sunday, March 2, 2008

Former House Science Committee Staffer Solicited ITSSD Post-Hearing Testimony On EU & China Use of Standards as Trade Barriers, But Ignored Findings


From : Huxley, Olwen
Sent : Monday, May 9, 2005 6:39 PM
To : Lawrence Kogan
Subject : RE: L. Kogan // information// Follow-up

We usually get a transcripts a few days after, and after a laborious editing process which takes a truly unreasonable amount of time, we have the transcripts ready. Couple of weeks?

OH Olwen F. M. Huxley
Subcommittee on Environment, Technology, and StandardsHouse Science Committee
2320 Rayburn HOBWashington, DC 20515
ph. (202) 225-8844fx. (202) 225-4438

-----Original Message-----

From: Lawrence Kogan [mailto:ssbs_llc@msn.com]
Sent: Monday, May 09, 2005 6:37 PM
To: Huxley, Olwen
Subject: RE: L. Kogan // information// Follow-up

Thank you for sending it. How long after this hearing will the transcripts be available to the public - posted to Committee's website? Have a good evening.

Lawrence A. Kogan
Sound Science Business Strategies, LLC
1625 K Street, NWWashington, DC 20006
(C) 609-658-7417 (F) 452-8160

From: "Huxley, Olwen" Olwen.Huxley@mail.house.gov>
To: Lawrence Kogan ssbs_llc@msn.com>
Subject: RE: L. Kogan // information>
Date: Mon, 9 May 2005 17:33:06 -0400>

Hi - I owe you some stuff.

Just so you know, the hearing is now scheduled for 2 pm on Wednesday, rather than 10 am.

Here's the list of witnesses:

Dr. Hratch Semerjian is the Acting Director of the National Institute of Standards and Technology (NIST).

Mr. Joe Bhatia is the Vice President for International Operations at>Underwriters Laboratory (UL). UL is a commercial laboratory company that tests products against U.S. and international standards, headquartered in Northbrook, Illinois.

Dr. Don Deutsch is the Vice President for Standards Strategy and Architecture for Oracle, headquartered in Redwood Shores, California.

Mr. David Karmol is the Vice President of Public Policy and Government Affairs at the American National Standards Institute (ANSI).

Mr. Robert W. Noth is the Manager of Engineering Standards for Deere & Company, headquartered in Moline, Illinois.

Here are the questions:

Dr. Hratch Semerjian, Acting Director, National Institute of Standards and Technology (NIST), Briefly describe how NIST supports standards development and answer the following questions:

1. What is NIST's role in the international standards arena?

2. Describe the Department of Commerce's standards document "Standards and Competitiveness: Coordinating for Results" and the status of the implementation of its recommendations. What remains to be done?

3. How would NIST's FY 2006 budget request improve the U.S. position with respect to standards development? Describe any other NIST standards initiatives that would contribute to the competitive position of U.S. industry.

>-----Original Message----->

From: Lawrence Kogan [mailto:ssbs_llc@msn.com]
Sent: Friday, May 06, 2005 10:48 AM
To: Huxley, Olwen
Subject: RE: L. Kogan // information

Ms. Huxley:

I am looking forward to receiving you witness list and list of questions for next week's hearing.
Also, my co-director and I would like to know how long after the hearing may we provide 'for the record' comments?


Lawrence A. Kogan
Sound Science Business Strategies, LLC
1625 K Street, NW Washington, DC 20006 (C) 609-658-7417 (F) 452-8160

From: "Huxley, Olwen" Olwen.Huxley@ mail.house.gov
To: Lawrence Kogan ssbs_llc@msn. com
Subject: RE: L. Kogan // information
Date: Fri, 29 Apr 2005 17:52:17 -0400

These are all very interesting points that you raise, and they aren't the first time I have heard them.

I would be pleased to meet with you and your co-director. I would suggest Friday of next week, since we have a mark-up on Thursday and everything that happens prior to that will be necessarily mark-up related. If Friday doesn't work for you, we can do it the week after.


Olwen F. M. Huxley
Subcommittee on Environment, Technology, and Standards
House Science Committee
2320 Rayburn HOB
Washington, DC 20515
ph. (202) 225-8844 fx. (202) 225-4438

-----Original Message-----
From: Lawrence Kogan [ mailto:ssbs_llc@msn. com]
Sent: Thursday, April 28, 2005 1:56 PM
To: Huxley, Olwen
Subject: L. Kogan // information

Dear Ms. Huxley:

Please find attached comments I submitted on Monday, April 18, 2005, in response to the recently revised U.S. Standards Strategy drafted by the American National Standards Institute (ANSI). There are also attached weblinks to several papers I have prepared on the subject of EHS regulations and standards being used by the EU as disguised trade barriers.

As you are aware, ANSI is the U.S. National Representative to two ostensibly private non-governmental international standards bodies (the International Organization for Standardization [ISO] and the International Electrotechnical Commission [IEC] that are expressly referenced within the WTO TBT Agreement). The ISO/IEC are charged with developing relevant science and technology-based performance and use orientated international product standards that national governments are supposed to look to prior to enacting national regulations. In fact, with the help of the EU and the UN, the ISO is now in the business of developing food safety and medical device technical standards as well as corporate social responsibility standards. It may eventually get involved in some type of pharma standards, as the WHO isone of many UN agencies that serve as liaison organizations to the ISO.

As you will notice, my comments were prepared in the name of a new NJ-based NGO (a 501(c)(3) charitable, educational, and scientific organization)I have formed with a former European/ UN diplomat that is called: The Institute for Trade, Standards and Sustainable Development (ITSSD).

ITSSD's comments reflect how the EU has skillfully and systematically linked international regulation and standardization, and injected precautionary principle and environment-centric sustainable norms into the international standards development process. The ITSSD believes that ANSI's inability to detect this phenomenon has created serious vulnerabilities that have adversely impacted the U.S. negotiating position at the ISO/IEC. The ITSSD believes that, given the linkage noted above, this has also created serious vulnerabilities for the U.S. government's negotiating positions at the various WTO-relevant intergovernmental bodies in which different U.S. agencies participate. These include the Codex, the IPPC, the OECD and the UN (FAO, WHO, UNEP & CSD, as well as, others - Global Compact Office, UNDP, UNCTAD, UNIDO, etc.).

Perhaps, ITSSD can render assistance to the House Committee on Science in elaborating upon how its comments to the ANSI relate to the China standards issues now being looking into by the Ways and Means Committee...



Olwen Huxley, a professional staff aide on the House Science Committee's subcommittee on environment, technology and standards,...

Publication: Manufacturing & Technology News Date: Monday, March 12 2007




June 3, 2005

The Honorable Vernon J. Ehlers,
Michigan, Chairman
House Science Committee,
Subcommittee on Environment, Technology, and Standards
2320 Rayburn House Office Building
Washington, DC 20515

Dear Mr. Ehlers,

Please find attached ‘post-hearing’ testimony that we have prepared for submission to the Subcommittee on Environment, Technology and Standards in connection with the recent hearing on Standards that took place on May 11, 2005. We would appreciate your Subcommittee’s inclusion of this testimony within the official ‘hearing record’.

The Institute for Trade, Standards and Sustainable Development, Inc. is an independent and nonpartisan not-for-profit organization dedicated to the promotion of a positive global paradigm of sustainable development consistent with World Trade Organization (WTO) principles. We have undertaken considerable research and public outreach activities to highlight the increasing use of disguised regulatory trade barriers cast in the form of overly stringent environment, health and safety regulations and standards that are justified by reference to the need to achieve ‘sustainable development’. We have both observed and analyzed how such measures have increasingly threatened U.S. products and technologies and the science and intellectual property rights-based legal and economic frameworks which are critical to maintaining U.S. global competitiveness in the future.

We thank you for the opportunity to submit this testimony, and we remain at your
Subcommittee’s disposal should it be interested in speaking with us further about these issues.

Very truly yours,

Lawrence A. Kogan, Esq.



Europe, China and the Use of Standards as Trade Barriers How Should the U.S. Respond?

Lawrence A. Kogan, CEO, Institute for Trade, Standards and Sustainable Development, Inc.

House Science Committee, Subcommittee on Environment, Technology, and Standards

June 3, 2005

Mr. Chairman, and ranking members of the Subcommittee, my name is Lawrence Kogan, and I am CEO and Co-Director of the Institute for Trade, Standards and Sustainable Development, Inc. (ITSSD). The ITSSD is an independent and non-partisan not-for-profit organization dedicated to the promotion of a positive paradigm of sustainable development consistent with World Trade Organization (WTO) principles. The ITSSD is pleased and honored to comment about the subtle, complex and significant challenge posed to U.S. global economic and technological competitiveness by the growing use of new market access barriers. During the past several years, it has become more obvious that such disguised trade barriers are typically cast as overly stringent and extra-territorial environment, health and safety (EHS) technical regulations and product and process standards, which have the effect of protecting underdeveloped, lagging or ailing industries in other countries.

Our research has revealed that most such measures are premised on an evolving European norm known as the precautionary (‘better safe than sorry’) principle. As employed by the European Union (EU) the precautionary principle severely restricts or altogether bans the introduction of a number of new and existing U.S. products, substances, processes and technologies into the marketplace, unless they have first satisfied rigorous pre-market authorization requirements that are in excess of relevant international standards, but which are not scientifically, economically or technically justified. Once permitted into the marketplace, they are then subject to overly stringent post-market testing requirements that are also in excess of relevant international standards. In addition to ignoring free market principles, such rules arguably also violate the terms of three WTO agreements: the Sanitary and Phytosanitary (SPS) Agreement; the Technical Barriers to Trade (TBT) Agreement; and the General Agreement on Tariffs and Trade (1994).

As requested, my testimony will respond to the following two sets of questions posed by the Subcommittee to the list of witnesses that testified during the May 11, 2005 hearing:

1. What has been China's and Europe's approach to the development and use of standards? How is this approach changing international standards development in organizations such as the International Standards Organization, and through bilateral relations with other countries? What are the implications for U.S. trade with China and the rest of the world?

2. Based on the U.S. Standards Strategy that ANSI has been developing, what should the Federal Government, States, U.S. standards development organizations, and companies be doing to reduce their vulnerability to the use of standards as trade barriers, and how could they promote the adoption of non-exclusionary standards in the global marketplace? How should these efforts be coordinated?....

ITSSD CEO Identifies the Foreign Standards Threat Posed to US Global Technological & Economic Competitiveness as Early as 2003


Standards, Regulations, and the Global Trading System

Global Business Dialogue Seminar Outline

By Lawrence A. Kogan, Esq.

National Foreign Trade Council

July 14, 2003



Draft Agenda for the October 2, 2003 ANSI International Policy Committee (IPC) Meeting for Consideration at the October 2003 INCITS (InterNational Committee for Information Technology Standards1) Standards Policy Board Meeting

2.4.1 Europe & and the ANSI Regional Standing Committee for Europe/Middle

Included as a topic under this item are...

...another recently released report from the Washington Legal Foundation, following up on a report issued earlier this year.

This latest installment in WLF's educational Working Paper publication series, "'Unscientific' Precaution: Europe's Campaign to Erect New Foreign Trade Barriers", (provided as document IPC025-03) was written for WLF by international trade law expert Lawrence A. Kogan on behalf of the National Foreign Trade Council.

Though no action is equired, IPC members are encouraged to express their views on these papers.

ISO 26000 Betrays Organization's Technical Roots: ISO Embarks on Slippery Slope Path Towards 'Soft' Political Standards Development


ITSSD Assessment of the new ISO 26000 Social Responsibility Standard

December 2005

Preliminary Conclusions:

1. It may be possible to procedurally shape and/or delay the development of the ISO SR guidance standard at the national mirror and international levels.

2. It may be impossible to prevent the actual adoption of an SR standard at the DIS and FDIS stages, unless the ISO voting rules are first modified to reflect only one vote for the European Community as a whole through its regional standards representative (e.g., CEN), as opposed to twenty-five separate votes representing the national standards bodies of each of the EU member states.

3. It is likely to be difficult to reverse the new stakeholder engagement process that has been introduced at the ISO incident to the commencement of this SR standard initiative, though it may arguably be shaped by filing procedural objections, and by strengthening traditional ISO benchmarks for consensus.

4. The real challenge is to prevent the new process from being expanded institutionally to all of ISO’s technical standards work, and thereby from being incorporated within business contracts that reference or directly incorporate such standards as conditions of manufacture, sale, service, etc. This is likely to be quite difficult given the current efforts of governments, NGOs and UN agencies to incorporate sustainable development dimensions into all ISO technical standards.

5. Further study and analysis of the evolving ISO SR operating procedures, the multi-stakeholder engagement process, and the ISO’s general consensus procedures is necessary to determine the proper course of action and the appropriate actors with which/whom to collaborate...

It is Sometimes Necessary to Go Backward Before You Proceed Forward: Revisiting ITSSD Comments on the US Standards Strategy


...The Institute for Trade, Standards and Sustainable Development (ITSSD) is pleased to have the opportunity to submit comments concerning the contents of the draft revision to the United States Standards Strategy (USSS). The USSS appropriately emphasizes the increasingly important role served by international standards in facilitating global commerce. It also accurately reflects the ever-closer relationship that foreign governments have drawn between environment, health and safety (EHS) regulation and industry product, process and service standardization.

The Institute’s comments are divided into two sections. The first section responds to several of the specific initiatives proposed. The second section discusses crosscutting issues which, though not addressed in the USSS, must nevertheless be adequately considered if the USSS is to preserve U.S. international economic interests.


The USSS represents a first attempt to articulate a comprehensive plan that addresses a growing number of challenges posed to the global dominance of U.S. standards and to U.S. global economic competitiveness in general. As currently drafted, however, the ITSSD believes that the USSS falls short of achieving this goal, and therefore, should be extensively revised.

Thank you once again for the opportunity to submit comments in response to the draft of the newly revised U.S. Standards Strategy. We hope that our comments will be seriously considered and look forward to receiving your organization’s thoughtful response to them.


Monday, January 28, 2008

Discerning the Forest From the Trees: How Governments Use Ostensibly Private and Voluntary Standards to Avoid WTO Culpability


By Lawrence A. Kogan

Global Trade and Customs Journal

VOL 2; NUMBER 9, pages 319-337 (2007)


[This international law journal article has been catalogued by the British Public Library and may be accessed in hardcopy. See: http://direct.bl.uk/bld/OrderDetails.do?did=1&uin=215946290 ].

[Article title :Discerning the Forest From the Trees How Governments Use Ostensibly Private and Voluntary Standards to Avoid WTO Culpability

Author: Kogan, L. A.


Bibliographic details: 2007, VOL 2; NUMBER 9, pages 319-337


Country of publication: Netherlands

ISBN: ISSN 1569-755X

Unique item number: RN215946290

Shelfmark: 4195.476860

Language: English

Pricing: To buy the full text of this article you pay:£12.50 copyright fee +
service charge (from £7.85) + VAT, if applicable ]




A. The Purpose of This Article

The purpose of this article is to explore whether national and/or regional governments can be held responsible under the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO)1 law if it can be proven that their official policies and activities directly or indirectly permit, support or otherwise influence the adoption, promulgation and/or maintenance of ostensibly private and voluntary standards that result in discriminatory trade
practices or in the creation of unnecessary obstacles to international trade.

It is generally agreed that official government regulatory policymaking and private standard setting activities currently taking place within many WTO member countries are not sufficiently transparent and inclusive of foreign stakeholder input. It is also generally agreed that regulations and standards (whether technical, social or environmental) can materially impact international (cross-border) trade flows when not drafted and implemented in a benchmarked and balanced manner.2

Some governments, more than others, recognize that standards can improve their countries’ industrial and technological global competitiveness and have increasingly synchronized their use with official regulations. 3 As a result, such countries may have more than acquiesced in the development of ‘private’ environmental and corporate social responsibility (CSR) certification and labelling standards regimes that have had the effect of denying market access to a host of foreign products and services. In particular, companies operating within natural resource-based
developing countries have incurred significant and unnecessary costs and administrative burdens to satisfy such developed country environmental certification and eco-labelling standards. According to a recent study, ‘making certification a condition for trade in international
markets could reduce exports of wood products from these countries – with considerable negative impacts on forest-dependent populations’.4

This article focuses strictly on the relationship between private European-centric sustainable forest management (SFM) schemes that have arisen during the past twenty years and the official policy goals articulated by the European Community (EC), and later by the European Union (Eu)5 within its Fifth and Sixth Environmental Action Programmes (EAPs). The analysis and findings which follow, however, are equally relevant to ascertaining whether a nexus exists between official EU government sustainable development and corporate governance policies and
currently evolving private EU-centric (CSR) standards. The establishment of such a link is required before culpability can be ascribed for alleged violations of WTO law. This article does not address the merits of any claim of trade discrimination or disguised trade protectionism (i.e., the purported effects on international trade flows in forest/wood products) that could conceivably be brought against the EC and its Member States by an aggrieved GATT/WTO member as a consequence of such standards.6


During the past twenty years, European governments created a national, regional and global policy framework that facilitated and promoted the development, adoption and implementation of private Euro-centric SFMcertification and eco-labelling standards. SFM standards-related activities were undertaken within the borders of specific EUMember States and the European region by recognized private standardization bodies, namely the FSC and the PEFC. These activities were, at the very least, indirectly funded by European governments. They also clearly
reflected a key regional EU policy priority: the global promotion of SFM as part of environment-focused negative SD.

The GATT case law and the TBT Agreement provide that when governments, which are charged with the responsibility of preventing private standards setting activities undertaken within their jurisdictions from creating unnecessary obstacles to international trade, become sufficiently involved in those activities, they may be attributed to them as a matter of law. Consequently, if it can be proven that such activities gave rise to discrimination against ‘like’ foreign products or constituted disguised trade protectionism, governments may be held accountable in a WTO dispute settlement proceeding initiated by aggrieved WTO members.

The evidence in this case reveals that the EU Brussels institutions and Member State governments have been sufficiently involved in the ostensibly private SFM standards setting and implementation activities of the FSC and the PEFC to have those activities and their market effects on developing country forest/wood products attributed to them. As a result, the SFM standards activities of such groups can fairly be characterized as part of an overall EU governmental regime, and thus, as an extension of EU ‘governmental conduct’. Therefore, to the extent aggrieved WTO developing country members can prove that the FSC or PEFC standards resulted in actual trade discrimination or that they were intended to create or had the effect of creating unnecessary obstacles to trade, they may hold the EU and its participating Member States culpable under GATT/WTO law.170

Related Endnotes:

1 General Agreement on Tariffs and Trade, 33 I.L.M. 1125 (1994) (GATT); World Trade Organization (WTO).
2 Lawrence A. Kogan, National Foreign Trade Council, Looking Behind the Curtain: The Growth of Trade Barriers That Ignore Sound Science (May
2003) available at www.wto.org/english/forums_e/ngo_e/posp47_nftc_looking_behind_e.pdf .
3 Erkki Liikanen, European Enterprise Commissioner, Commission Marks World Standards Day With Focus on Environment and Standards, in IP/01/1408 (12 October 2001) available at www.europa.eu/rapid/start/cgi/guesten.ksh?p_action.gettxt¼gt&doc¼IP/01/1408%7C0%7CRAPID&lg¼EN .
4 Carolyn Fischer, Francisco Aguilar, Puja Jawahar and Roger Sedjo, Resources for the Future – Forest Certification: Toward Common Standards?, World Bank Foreign Investment Advisory Group Discussion Paper 05-10 (Washington, DC: World Bank, April 2005), available at
www.rff.org/Documents/RFF-DP-05-10.pdf .
5 The European Community (EC) was previously known as the European Economic Community (EEC),whichwas formed pursuant to the Treaty of Rome, on 25March 1957. It consisted of six ‘commonmarket’ countries: Belgium, France, Italy, Luxembourg, the Netherlands and former West Germany. The EEC was renamed the EC on the signing of the Maastricht Treaty, on 7 February 1992, which led to the formation of the unique political union now recognized as the European Union (EU). The EC remains one of three pillars of the EU–i.e., the Community pillar, which concerns economic, social and environmental policies. See e.g., ’European Community’, Wikipedia at: www.en.wikipedia.org/wiki/European_Community ; ‘The Three Pillars of the European Union’ Wikipedia at: www.en.wikipedia.org/wiki/Three_pillars , last visited on 15 July 2007.
170 See Brien, as note 8 above. -- Laurel A. Brien, Understanding the International Agreement on Technical Barriers to Trade and Related Provisions of the US Trade Agreements Act of 1979 (Washington, DC: US Department of Commerce, International Trade Administration, Office of Trade Policy, September 1984) (explaining the barriers to trade requirements).

EU Injects Political Precautionary Principle and Anti-Patent-based Industry Standards to Secure Global Competitive Advantage

By Lawrence A. Kogan

Back during 2002, a Wall Street Journal columnist prepared a prescient but largely unnoticed article that unfortunately was a negative harbinger of things to come. It described how the European Union had largely become the de facto global legislator and regulator of all kinds of rules concerning the environment, human health and safety that would eventually touch and materially impact practically every industry sector within the United States, and by extension, the world.

“Because of differing histories and attitudes toward government, the EU…with the world’s second-largest economy, regulates more frequently and more rigorously than the U.S., especially when it comes to consumer protection. So, even though the American market is bigger the EU, as the jurisdiction with tougher rules, tends to call the shots for the world’s farmers and manufacturers. EU rules often cause particular friction in the high-tech fields, such as software, electronic commerce and biotechnology” (emphasis added). [1]

EU policy documents then reflected that the products covered by EU environment, health and safety regulations, directives and standards “represent a large proportion of [all] products placed on the market. It is estimated that, as of 2003, the trade of products covered only by the major [agricultural and industrial] sectors regulated…largely exceeds the volume of 1500 billion euro (1.5 trillion euro) [(or approximately $2.25 trillion)] per year”. [2]

In effect, this article implied that America would, over time, lose its sovereign ability to determine its own economic fate and destiny, first outside, and then within its own borders, if it did not act quickly and resolutely enough to slow down and reverse Europe’s regulatory juggernaut.

Now, more than four years later, this has become abundantly clear.

“Sometimes voluntarily, sometimes through gritted teeth and sometimes without knowing, countries around the world are importing the EU’s rules. It is a trend that has sparked concerns among foreign business leaders and that irritates US policymakers. But whether they like or not, rice farmers in India, mobile phone users in Bahrain, makers of cigarette lighters in China, chemical producers in the US, accountants in Japan and software companies in California have all found that their commercial lives are shaped by decisions taken in the EU capital.

...The EU’s emergence as a global rulemaker has been driven by a number of factors, but none more important than the sheer size and regulatory sophistication of the Union’s home market...At the same time, the drive to create a borderless pan-European market for goods, services, capital and labor has triggered a hugely ambitious program of regulatory and legislative convergence among national regimes.

This exercise has left the Union with a body of law running to almost 95,000 pages – a set of rules and regulations that covers virtually all aspects of economic life...Compared with other jurisdictions, the EU’s rules tend to be stricter, especially where product safety, consumer protection and environmental and health requirements are concerned. Companies that produce their goods to the EU’s standards can therefore assume that their products can be marketed everywhere else as well.

...As...two US-based academics point out in a recent paper that examines the global impact of three recent EU laws on chemicals, electronic waste and hazardous substances, ‘The EU is increasingly replacing the United States as the defacto setter of global product standards and the center of much globally regulatory standard setting is shifting from Washington DC to Brussels’”. [3]

Indeed, Europe had long targeted the U.S. regulatory and free enterprise systems for fundamental restructuring. Its aim has all along been to achieve supranational legal and economic governance over the affairs of global (mainly U.S.) industry through an environment-centric negative paradigm of ‘sustainable development’.[4] There is, in fact, significant documentary evidence showing how the European Community and a number of EU member state governments have, for many years, tried to persuade/compel American-based international businesses and their domestic and foreign suppliers, as well as, U.S. federal, state and local legislators, to adopt similar rules. In so many words, Europe has been engaged in a legalistic and economic war with the United States in an effort to reshape the post-World War II paradigm in the European image.[5] And, it has employed ‘soft’ regulatory rather than ‘hard’ military power to achieve this. The unfortunate reality is that Europe is now well on its way to governing the American way of life, that is, re-colonizing America and the world, unless America and its allies find a way to reverse this trend.

“...Brussels is becoming the world's regulatory capital. The European Union's drive to set standards has many causes—and a protectionist impulse within some governments (eg, France's) may be one. But though the EU is a big market, with almost half a billion consumers, neither size, nor zeal, nor sneaky protectionism explains why it is usurping America's role as a source of global standards. A better answer lies in transatlantic philosophical differences.

The American model turns on cost-benefit analysis, with regulators weighing the effects of new rules on jobs and growth, as well as testing the significance of any risks. Companies enjoy a presumption of innocence for their products: should this prove mistaken, punishment is provided by the market (and a barrage of lawsuits). The European model rests more on the “precautionary principle”, which underpins most environmental and health directives. This calls for pre-emptive action if scientists spot a credible hazard, even before the level of risk can be measured. Such a principle sparks many transatlantic disputes: over genetically modified organisms or climate change, for example.

In Europe corporate innocence is not assumed. Indeed, a vast slab of EU laws evaluating the safety of tens of thousands of chemicals, known as REACH, reverses the burden of proof, asking industry to demonstrate that substances are harmless. Some Eurocrats suggest that the philosophical gap reflects the American constitutional tradition that everything is allowed unless it is forbidden, against the Napoleonic tradition codifying what the state allows and banning everything else.

...One American official says flatly that the EU is “winning” the regulatory race, adding: “And there is a sense that that is their precise intent.” He cites a speech by the trade commissioner, Peter Mandelson, claiming that the export of “our rules and standards around the world” was one source of European power. Noting that EU regulations are often written with the help of European incumbents, the official also claims that precaution can cloak “plain old-fashioned protectionism in disguise” (emphasis added). [6]

Europe's efforts to define global standards has now extended beyond politically motivated environmental and health standards to also include intellectual property standards. This was revealed within a recent IP Watch newsletter article.[7]

Efforts by European Union authorities to take advantage of standardisation as a de facto regulatory tool have not been sufficiently systematic in recent years, according to a study published by the European Commission last week. Yet standards especially in information and communications technology (ICT) are becoming more important, said Patrick Van Eecke, attorney at the Brussels office of DLA Piper UK and co-author of the study. [8]http://ec.europa.eu/enterprise/ict/policy/standards/piper/executive_summary.pdf .

The study recommended a dialogue between standardisation organisations and all stakeholders. Also urgently needed is a balance between technical standards and intellectual property rights, according to the study. Concerns that overly rigid IPR protection might become a problem for invention and innovation recently also resulted in other recommendations and decisions at the EU level. A call for changes in the EU patent system was made in a study commissioned by the European Parliament’s Scientific and Technological Options Assessment (STOA) unit and an inquiry into possible anticompetitive practices by the pharmaceutical industry that was initiated by European Commissioner for Competition Neelie Kroes.

A debate on future EU standardisation policy will take place at a conference organised by the European Commission on 12 February in Brussels.Author Van Eecke, speaking with Intellectual Property Watch, pointed to the growing relevance of technical standards that “are more important than legislation.” Companies and citizens either abide by laws passed by governments or not, but to not follow well-established technical standards would mean to be excluded from the market.

“If you are a policymaker, you really would like to make sure that companies and citizens abide by the rules, so instead of drafting a law you could put them into a standard,” he said.

Using privacy as an example, he said, “You can draft one hundred laws that should protect it - and hope that people follow the law. But if you are able to have EU data protection implemented in the technical standards, it might be much more effective.” Van Eecke said that legislators who try to rule via standards would end up drawing the conclusion from American cyberlaw luminary Lawrence Lessig’s theory that code is the (new) law and shifts legislators’ attention to standardisation.

[1] See Brandon Mitchener, “Rules, Regulations of Global Economy Are Increasingly Being Set in Brussels”, WALL ST. J., (4/23/02).
[2] See “Enhancing the Implementation of the New Approach Directives, Communication from the Commission to the Council and the European Parliament”, COM (2003) 240 final, May 7, 2003, at 3, at: http://europa.eu.int/eur-lex/en/com/cnc/2003/com2003_0240en01.pdf .
[3] See Tobias Buck, “Standard Bearer”, Financial Times (July 10, 2007) at: http://www.ft.com/cms/s/0/6e721ba2-2e7d-11dc-821c-0000779fd2ac.html .
[4] For a discussion of this concept, See, e.g., “Issues”, The Institute for Trade, Standards and Sustainable Development, website at: http://www.itssd.org/issues.htm .
[5] See Lawrence A. Kogan, “Exporting Europe’s Protectionism”, The National Interest (Fall 2004) at p. 95, at: http://www.itssd.org/Publications/Kogan%20TNI%2077FINAL.pdf .
[6] See “Brussels Rules OK - How the European Union is Becoming the World's Chief Regulator”, The Economist (Sept. 20, 2007) at: http://www.economist.com/world/europe/displaystory.cfm?story_id=9832900 .
[7] See Monika Ermert, "Standardisation Policy More Effective Than Legislation On IP?", Intellectual Property Watch (Jan. 25, 2008) at: http://www.ip-watch.org/weblog/index.php?p=894 .
[8] DLA Piper and the Universidade Nova de Lisboa and T.U. Delft, "EU Study on the Specific Policy Needs for ICT Standardisation" (July 2007) at: http://ec.europa.eu/enterprise/ict/policy/standards/piper/full_report.pdf .