NILS Law Review (Vol. II)
2015
product labeling, and thus constituting differing GMO labeling regimes. In addition to various instruments, several WTO cases such as US – Tuna II and US - COOL provide scope for persuasive evidence for determining whether the consumer‘s right to know can serve as a sole justification for mandatory labeling requirements under WTO rules. Most basic source could be found in Article XX of GATT 1994, which provides ten exceptional situations wherein a member can justify restrictive measures in imported products. Among them, a demand for mandatory labeling of imported GMO foods could most closely be found in exception related to human, animal or plant life or health and one which is related to the conservation of exhaustible natural resources.6 Protection of human and animal health could further be protected by the SPS and TBT Agreement. A member can use SPS Agreement to justify its labeling requirement if the labeling measure is adopted based on the argument of potential health risk and is directly related to food safety. However such should not be maintained without sufficient scientific evidence and shall not be applied in a manner which would constitute a disguised restriction on international trade. Nevertheless, if the relevant scientific evidence is insufficient, member can provisionally adopt an SPS measure to prohibit imports of certain items or require mandatory labeling of products, enabling the labeling of GM foods or food containing GM ingredients.7 However, such is limited to provisional period, making SPS Agreement not a strong source for the consumer‘s right
6
Arthur E. Appleton, The Labelling of GMO Products Pursuant to International Trade Rules, 8 N.Y.U Environmental Law Journal, 566 – 578 (2000) 7
Li Du, GMO Labeling and the Consumer‟s Right to Know: A Comparative Review of the Legal Bases for the consumer‟s Right to Genetically Modified Good Labeling, 8 McGill Journal of Law and Health, 4 – 38 (2014).
106