Reconciling Public Sentiment and Trade: The UK’s Hormone-Treated Beef Dilemma

The recent pause in trade negotiations between the UK and Canada, largely due to the UK’s ban on hormone-treated beef, highlights the importance of food standards in the UK.

Public opinion in the UK strongly opposes hormone-treated beef. Consumer surveys, including a Which? survey of 2,073 UK adults, reveal strong resistance to hormone use in beef, supported by research from the University of Kent, University of Reading, and IHS Markit.

Health protection versus protectionism

Sanitary and Phytosanitary (SPS) regulations uphold the rights of countries to implement protective measures based on scientific evidence and are the least trade restrictive way to do this while maintaining countries’ appropriate levels of health protection. Countries can also base their SPS measures on existing international standards, such as the Codex Alimentarius. The World Trade Organization’s (WTO) SPS Agreement also allows governments to rely on precautionary measures in cases where scientific evidence is insufficient. This precautionary approach was challenged when the WTO issued a ruling against the EU’s ban on hormone-treated beef in the absence of any scientific risk assessment of harm in the 1990s. While the European Commission viewed public opinion on hormones to be a legitimate influence, it was criticised as protectionism by the US and Canada. Since the EU did not lift the ban and the US retaliated, the conflict continued until the EU and the US signed a Memorandum of Understanding (MoU) in 2009. This agreement allowed the EU to maintain its ban in exchange for substantial market access for US hormone-free beef with zero tariff.

Possibility of a new challenge

Although the UK was a member of the EU during the EC-Hormones case, its post-Brexit status introduces a different scenario within the WTO. The UK’s own restriction has not yet been challenged. Millstone and Lang suggest the UK might need a similar deal with the US, as the MoU might not extend post-Brexit. Potentially, without such an agreement, the UK might face legal challenges.

If any WTO member challenges the UK’s ban at the WTO, it is unclear whether the UK can argue double jeopardy based on the previous rulings it had as an EU member. The WTO does not explicitly state whether other legal impediments could prevent a panel from ruling on the merits of claims. This suggests an open stance toward the complex legal issues that could emerge in such disputes as it remains unclear whether a case can be brought again against a different protagonist.

Legal tests of public morals

The UK’s ban on hormone-treated beef aligns with societal values or public morals in the UK, which falls under one of the general exception provisions: GATT Article XX(a).

The ban was previously treated as an ‘SPS measure’, which the WTO found illegal. However, under the SPS Agreement, WTO members can take a measure that protects ‘human, animal or plant life or health’, but does not explicitly cover measures taken based on public morals. In the US-Gambling case, the panel notes that the content of these can vary depending upon a range of factors, including prevailing social, cultural, ethical and religious values.

There is precedent in the WTO for using public morals to defend a measure concerning animal welfare, as seen in the EC-Seal Products case. Although the case dealt with different issues - the EU Seal Regime to prevent the inhumane killing of seals, it was deemed by the WTO as provisionally necessary to protect public morals under GATT Article XX(a). Furthermore, the WTO stressed the importance of the widespread disquiet among many EU citizens about the impact on animal welfare. It also noted that general animal welfare legislation can reflect as an indicator of the widespread nature of the public opinion.

Similarly, the UK's cultural aversion to hormone-treated beef and societal values favouring high animal welfare, as supported by surveys, underpins the ban. The UK Parliament also has expressed concerns about animal welfare in relation to the use of hormones in beef cattle. These indicate that the ban is a response to public concern for animal welfare.

Challenges

However, challenges persist. Firstly, previous rulings have shown challenges in evaluating national policies relating to moral concerns within intergovernmental frameworks. Only a few cases, such as the US-Shrimp II, have been successfully defended using GATT Article XX, particularly due to the scrutiny of the necessity test and whether they are the least trade-restrictive means to achieve their moral purpose.

Another challenge is establishing a link between the use of hormones and public moral concerns about animal welfare. Even though the WTO considers public opinion surveys among various factors to assess public morals, their influence and role remain unclear. The WTO also stated that public opinion should not be directly equated with public morals. Thus, there appears to be a gap in the legal pathway defending trade restrictions based on strong public opinion.

The UK’s ban on hormone-treated beef underscores the difficulty of aligning public sentiment with legal standards within the WTO system. Despite strong public opinion on the use of hormones in cattle, maintaining this measure involves navigating complex political, legal and trade landscapes, potentially leading to WTO disputes. Although the UK’s current ban on hormone-treated beef aligns with public opinion, balancing public sentiment with compliance with trade rules remains a formidable task that will continue to challenge the UK in the post-Brexit era. This raises a broader question about the balance between national regulatory autonomy and international regulation.