TPP’s Orwellian Definition of “Science” in its Sanitary and Phytosanitary (SPS) Chapter

In the language of Orthanc help means ruin, and saving means slaying, that is plain. — J.R.R. Tolkien, ,em>The Lord of the Rings

By Lambert Strether of Corrente.

Let’s begin our quest for “science” with what the (disinformation campaign that is the) USTR’s FAQ has to say about the TPP’s SPS chapter, which controls, among other things, the (imported) food that you eat[1]. (I’ve underlined the bits relevant to this post, although there’s plenty more to dig into, especially the innocuous sounding “import checks” and “risk analysis.”) Here we go:

TPP’s chapter on Sanitary and Phytosanitary (SPS) measures gives American farmers and ranchers a fair chance to feed the region’s people; ensures that America’s food supply remains among the safest in the world; and helps all TPP partners — including developing country TPP Parties — better protect the health and safety of their food through modern, science-based food safety regulation. This involves ensuring that our partners use science and risk analysis  [hmm] as a foundation for SPS measures, which mirrors U.S. food and agricultural safety policy. As examples, they must use appropriate  [hmm] import check and restriction policies focused on direct [hmm] threats to health and safety, avoid duplicative or unnecessary [hmm] testing requirements where food already meets accepted international standards, and use transparent procedures for developing regulations — including opportunities for public comment. Nothing in this chapter in any way lessens or compromises our right and ability to protect U.S. consumers or U.S. agriculture, or to enforce our food safety rules. On the contrary, it will help TPP partners better ensure the health and safety of their food.

(The SPS is Chapter 7 of the TPP; here’s the full text.) And here’s the scenario of concern from a business perspective, with which the SPS chapter is meant to deal Grains:

When a country’s SPS measures step outside of science, however, the resulting incidents slow down the grain importing process, adding time and cost to shipments.

For example, [Floyd Gaibler, U.S. Grains Council director of trade policy and biotechnology] explained that Mexico recently held up shipments of U.S. corn because it required additional fumigation under the presumption that the shipments had excessive soil contamination. Under further examination, Gaibler said the SPS incidents started occurring after Mexico was unable to apply new raised tariffs to corn imported from the United States and Canada due to the North American Free Trade Agreement (NAFTA). The political implication behind an alleged plant health issue makes this SPS measure suspect, according to Gaibler.

Readers will at once spot the post hoc fallacy (“after Mexico was unable”). Readers will also spot the petitio principii (“the political implication behind”). Hardly scientific! More centrally, Gaibler assumes that there was no soil contamination (and note the weasel word “excessive.” Maybe those pesky Mexican eater/buyers don’t have the same definition of “excessive” as grower/sellers?) But there’s no prima facie reason to make Gaibler’s assumption. Take Iowa. Iowa is a big corn state; cursory research brings up a handy brochure titled “Considerations for Managing Contaminated Soils in Iowa” from the state Department of National Resources. Here’s a list of Superfund sites in Iowa. And the Iowa state code says that soil does not need to be tested for contamination unless there’s reason to “suspect” it. 

None of this shows, of course, that Gaibler’s shipment was, in fact contaminated. It does show that there’s no prima facie reason to think that the Mexican officials were wrong in protecting their public in the way they sought to do.[3] Put that aside. Gaibler’s clients have a problem when they ship grain. Gaibler thinks “science” will make that problem go away. But what does Graiber really mean by science? And what does TPP mean? Not — hold onto your hats here, folks — what scientists mean. Or you.

Science vs. The Precautionary Principle

“Science,” as one might expect, is a loaded word in trade policy. For example, here’s Democratic Senator Max Baucus questioning a previous USTR, Ron Kirk. From the Eyes on Trade live blog:

Baucus : SPS?

Kirk: We will press EU to get SPS measures based on sound science, and not fear.

“Sound science” is, of course, a phrase invented by the public relations business as part of the tobacco industry’s campaign against second-hand smoke regulation. So what Kirk is really saying is that trade in cancer sticks is jake with the angels, especially when tobacco-industry funded shell groups say that smoking cancer sticks is jake with the angels. Consider rereading the lofty wording of the USTR FAQ with that perspective, and keep this in mind as we look at SPS in more detail. 

In other words, on food policy, the TPP could be characterized as caveat emptor (“let the buyer beware”). Food is safe until proven otherwise. This is in contrast to the European regulatory philosophy of the “Precationary Principle,” which could be charaterized as caveat venditor (“let the seller beware”). From the Institute for Agriculture and Trade Policy:

But if scientific evidence is insufficient or unclear, the European Commission may use the Precautionary Principle to delay or prohibit sales of questionable foods or ingredients. Agribusiness companies are demanding that the U.S. Trade Representative negotiate TTIP to prevent use of the Precautionary Principle to reject their exports and to protect consumers.

It’s a question of the burden of proof. When our USTR and TPP advocates say “science-based,” what they mean is that in cases of doubt, the burden of proof is on the buyer to prove the product is not safe. What the Precautionary Principle says is that in cases of doubt the burden of proof is on the seller to prove that the product is safe. Caveat emptor; caveat venditor. So we see that “science-based” smuggles in a tendentious legal principle, and has nothing whatever to do with science as such. (We’ll look at how that “the science” can be gamed by sellers below). 

“Science” Based on “Confidential Information”

Most of us think that the essence of science is the free interchange of information; that is, after all, how scientists check each other’s work. (Imagine that Newton had written Principia Mathematica, and then treated it as confidential and proprietary information. The court alchemists of Newton’s day did just that; but not scientists.) The drafters of the TPP do not take this view. From Article 17.6 of Chapter 7:

All communications between the consulting Parties in the course of CTC [Cooperative Technical Consultations], as well as all documents generated for CTC, shall be kept confidential unless the consulting Parties agree otherwise and without prejudice to the rights and obligations of any Party under this Agreement, the WTO Agreement or any other international agreement to which it is a party

(Presumably “all documents” means exactly that; “all documents” including documents giving the results of scientific studies.) TechDirt comments:

TPP does not require traditional rigorous science where results are published openly, subject to peer review, but permits the use of “confidential business information,” where results are withheld and there is no peer review. How that will work in practice is shown by a recent decision by the US Environmental Protection Agency (EPA) that there was “no convincing evidence” that glyphosate, the most widely used herbicide in the US and the world, is an endocrine disruptor. As The Intercept discovered:

The EPA’s exoneration — which means that the agency will not require additional tests of the chemical’s effects on the hormonal system — is undercut by the fact that the decision was based almost entirely on pesticide industry studies. Only five independently funded studies were considered in the review of whether glyphosate interferes with the endocrine system. Twenty-seven out of 32 studies that looked at glyphosate’s effect on hormones and were cited in the June review– most of which are not publicly available and were obtained by The Intercept through a Freedom of Information Act request — were either conducted or funded by industry. Most of the studies were sponsored by Monsanto or an industry group called the Joint Glyphosate Task Force. One study was by Syngenta, which sells its own glyphosate-containing herbicide, Touchdown.

Caveat emptor. “Imported food is safe, but we can’t show you the scientific study we made that proves that it is. Because those studies were done by the people selling you the food.”

“Science” Based on “Economic Feasibility”

Most of us also think that the practice of science doesn’t take feasibility into account. For example, Watson and Crick (and Franklin) didn’t say to themselves: “Well, let’s forget this double helix thing; we don’t have any DNA machines to decode it anyhow, so proceeding further would violate the scientific method.”  The TPP drafters disagree. From Article 17.9 of Chapter 7:

When conducting its risk analysis, each Party shall:

(c) select a risk management option that is not more trade restrictive than required to achieve the sanitary or phytosanitary objective, taking into account technical and economic feasibility.

The Institute for Agriculture and Trade Policy explains:

The “economic feasibility” of the science-based SPS measures to provide the appropriate level of protection is formulated in this provision: “Each Party shall . . . select a risk management option that is not more trade restrictive than necessary to achieve the sanitary or phytosanitary objective, taking into account technical and economic feasibility” (Article 7.6c). “Economic feasibility” provides TPP members with a crucial loophole against providing SPS measures that are science-based.

“[S]cience” cools its heels, waiting for lawyers and economists to decide which SPS measures are “necessary” and to what extent, according to cost-benefit analysis, to provide the appropriate level of protection.10 Cost benefit analysis routinely underestimates the benefits of regulation and overstates the costs.

Caveat emptor. “Imported food is safe, given the scientific study it was economically feasible to do. And don’t worry. We checked with Bob from Accounting.”

“Science” Assumes an Infrastructure for Doing Science

Most insidiously, the practice of science depends on an infrastructure: Laboratories, scientists, trained technicians, a budget. But the infrastructure of science is under assault. The IATP once more:

For example, since the Congress refuses to fund the Food Safety Modernization Act (FSMA), including its import provisions, inadequately funded and staffed SPS measures of the FSMA are not “economically feasible” to implement and enforce. Because the food and agribusiness industry does not want to pay the fees to expedite trade under the FSMA, they appeal to the presidential Office of Management and Budget to do a “cost-benefit” analysis to delay levying of fees.

Caveat emptor. “Imported food is safe, and we’d be proving that with scientific studies if we’d funded the labs, which we didn’t.”

Conclusion

My watchword is always that corrupt language signals corruption. The language of TPP, and the language of TPP advocates, is as corrupt as it can be; the word “science,” to them,” means something completely different from what it means to dull normals like us. Orwell would be proud. You eat food, hence you’re a buyer. Beware!

NOTES

[1] I’ve got to say that linking the FAQ talking points on a public site to the text of the TPP on a private site site (Medium) strikes me as creepy and corrupt. Right now, every clickthrough by a concerned citizen from the USTR’s public site benefits a private firm, Medium. Medium’s owner, Evan Williams, is a Silicon Valley squillionaire. What’s Williams getting out of the deal? And what’s Obama getting? A contribution to his Presidential Library? After all, the Obama administration was touted as being deeply techie in 2009; the White House site was and is run on Drupal (says View Source), which can surely host a few PDFs, like Wikileaks or the government of New Zealand both do. There’s no infrastructural reason for Medium to host the USTR TPP document trove. So there’s a deal. What is it? (And yes, I’m linking to Medium so that in the unlikely event that a human is tracking their clickthroughs, somebody reads this. I promise to behave better in future.)

[2] And then there’s the whole issue of nitrates in Iowa soil. The conflict in Iowa focuses on nitrates from the soil getting into drinking water, violating Federal standards. I can’t find anythin that directly connects eating nitrates from the soil with problems, but then (a) I’m not a scientist and don’t know the literature, and (b) I most certainly don’t know literature in Spanish which, presumably, the Mexican regulators would know. NOTE: This is not a nutrition site. Please keep comments on point.

[3] Presumably it would not be possible to reject a shipment based on soil management practices as such. that would be, no doubt, political.