Post-Moratorium EU Regulation of Genetically Modified Products: Triffid Flax

The regulatory regime for contamination permits the imposition of import bans with neither a scientific justification nor a risk assessment. No scientific assessment of Triffid flax was done prior to the import ban. The import regime put in place to deal with the contamination of flax with the GM-flax CDC Triffid provides no rationale for the thresholds of safety established for the testing regime. The EU is consistently pushing for commercial, economic and social considerations to be included, along with science, in decision-making. Such considerations are often perceived as avenues for economic protection to creep into EU decision-making. Such considerations can, however, cut both ways. The Canada-EU testing regime for Triffid makes provision for, but does not necessarily require, the testing of cargoes when they reach European ports (Western Producer, 2010). The risks associated with inspection upon arrival made exports to Europe too risky. By only requiring the passing of the tests prior to product leaving Canada, flexibility to find alternative markets for contaminated cargoes has been gained. Thus, while costly, the testing regime for flax exports to the EU has allowed for the resumption of Canadian flax exports to the EU. Of course, the import Protocol negotiated between the EU and Canada was a one off. In a future case, economic and commercial considerations could be used to bolster economic protection. This is why science was agreed upon as the arbitrator of SPS-based trade barriers by the Member States of the WTO, including the EU. Thus, the EU regulatory regime for GM-products would seem open to a new challenge at the WTO. Of course, the political consequences of such a challenge would have to be carefully weighed.