This Article considers the regulation of international trade in genetically modified agricultural products. Specifically, it addresses both products released into the environment as seeds and products intended for consumption as food. The first part of the Article describes the significance of genetically modified organisms (GMOs) in modem agriculture, especially agriculture in the United States. This discussion summarizes the risks and potential benefits associated with the use of agricultural GMOs, especially the risks and benefits related to biodiversity. The Article then briefly describes the approaches to the regulation of these products adopted in the
Cartagena Protocol to the Convention on Biological Diversity (Protocol). The Protocol basically pursues two different regulatory approaches. The Protocol adopts a regime of Advanced Informed Agreement (AIA) for the transboundary import of genetically modified food products released into the environment. Genetically modified agricultural products intended for consumption as food are subject to a more ambiguous regulatory scheme, which includes a labeling requirement for product shipments.
The next two parts of the Article consider these different regulatory approaches in greater detail. The Article criticizes the details of each of the Protocol's two regulatory regimes. One fault is that the Protocol does not help allocate the burden of proof with respect to the importing nation's decision to accept genetically modified products’ introduction into the environment. The Protocol is incoherent in two respects regarding the regime for the import of genetically modified food products. First, when an importing nation accepts genetically modified products that pose risks to biological diversity, including human health, the Protocol should require a label that identifies the product as genetically modified. Second, the Protocol is flawed because it requires labels for shipments of genetically modified food products even if they pose no identifiable risk to consumers. Generally, however, the Protocol's regime should be lauded because it may provide consumers with the information they need to make informed decisions about the foods they consume.
Michael P. Healy, Information Based Regulation and International Trade in Genetically Modified Agricultural Products: An Evaluation of The Cartagena Protocol on Biosafety, 9 Wash. U. J.L. & Pol. 205 (2002).