Sociological Inquiries into International Law, LSE 16-17th May 2014: Working Paper
‘Food in the WTO’
Fiona Smith
Faculty of Laws, UCL
In this paper, I want to reflect on food, specifically the regulation of food in the context of the
World Trade Organization (WTO). And, in keeping with the spirit of this workshop, I am taking a
‘sociological approach.’
The Oxford English Dictionary definition states that “food” is “any nutritious substance that people
… eat or drink to maintain life or growth.”1 I will explore the complex nuances of this definition in
more detail below, but at this point it suffices to acknowledge that food is at the heart of all human
existence for without it, societies cannot exist, let alone function.
A sociological enquiry into the regulation of food where food is understood as the very lifeblood of
society in this way prompts two questions: first, what role(s) does food play in the society?
Exploring the answers to this question involves thinking about whether there is enough food; who
supplies it; if the food is supporting or undermining people’s health; and even when the food meets
these criteria, whether people will eat it when it is presented to them. Second, how are these
qualities intrinsic to food “secured and supported” through law (if at all) in a way that respects the
values of that society?2 Answers to this second question must be inextricably linked to those
responses to the first question, as the second question reflects on what rules exist and the extent to
which they secure, support or undermine food’s different roles in that society.3
Mapping out the roles of food together with a consideration of the relevant rules gives a coherent
understanding of the way rules work within this sociological space. For it is the complex interaction
between food’s nature and the regulation designed to support it within a society that is often missed
in accounts critiquing the effectiveness of any food regulation. Understanding the complex
interaction between the nature of food and the rules that cover it allows deeper reflection on the
rules’ success and failure and enables litigators, judges and policy officials to determine how new
interpretations might be read into the existing rules; how amendment to those rules can be made
effective, or that, in fact, no changes to the rules are necessary.
1
Oxford English Dictionary online: http://www.oed.com/search?searchType=dictionary&q=food&_searchBtn=Search.
J. Finnis: Natural Law and Natural Rights, 2nd ed. (2001) Clarendon Press, 3; also S. Coyle: Modern Jurisprudence: A
Philosophical Guide, (2014) Hart, Ch9, 194 discussing the philosophy of Lon Fuller.
3
L. Fuller: The Morality of Law, (1969) Yale University Press, 4.
2
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Sociological Inquiries into International Law, LSE 16-17th May 2014: Working Paper
Identifying these two questions-what roles food plays and what rules govern food-only reveals the
objective of the study, as the questions might be answered in a number of ways. For example, a
quantitative (or empirical) study might be undertaken where consumers, producers, manufactures
and those involved in intermediate food production are asked their opinion on what they regard as
food’s function in their particular capacity as producer, consumer etc.; and litigators and policy
officials etc. might be asked their opinion of what rules govern food.4 Equally, a valid enquiry
might be to investigate how evolutionary adaptations within societies have led to the acceptance of
certain types of produce as ‘food’ and how rules have developed within those societies to sustain
that acceptance.5 In this paper, I want to answer these two questions by starting with the simple
dictionary definition of food and suggest a way to understand the dimensions of that definition.
From this starting position, I will look at what rules govern these dimensions in the context of the
World Trade Organization (WTO), in the sense that the WTO rules represent a way to order and
support ‘food’ in the economic activities in and between the community that is the WTO’s member
states.
The paper is structured as follows. I will set out my theoretical approach in more detail. I will apply
it to ‘food’ and then conclude with some remarks about how we might map on these ideas about
what food is onto the existing the WTO rules and what the consequences of exploring such an
approach are. The purpose of this paper is set out my sociological approach to the regulation of
food in the WTO therefore. The full implications of my approach for the interpretation of the WTO
rules, where the ‘gaps’ in regulation are and what law reform might look like are all issues for a
larger project. And, as such are beyond the scope of this paper.
Lon Fuller & ‘Polycentric Problems’
As noted above, several methods might be deployed to discover what ‘food’ is in order to find out
what WTO rules map on to it with the objective, ultimately, to discover whether those rules ‘work.’
I propose to adopt one method, Lon Fuller’s account of polycentric problems as set out in his 19789 article in the Harvard Law Review, “The Forms and Limits of Adjudication.”6
In this article, Fuller focuses on adjudication as a type of “legal form” as part of his wider
philosophical quest to discover what is “distinctive and important about legal forms,” and what
On the importance of quantitative methods see Perry-Kessaris: “What does it mean to take a socio-legal approach to
international economic law,” in A. Perry-Kessaris (ed): Socio-Legal Approaches to International Economic Law: text,
context and subtext, (2013) Routledge, 3, 4.
5
J. Krebbs: Food: A Very Short Introduction, (2013), 33. For example, see the controversial work of the anthropologist
Marvin Harris on the development of religious taboos surrounding food: M. Harris: Good to Eat: Riddles of Food and
Culture (1985) Simon & Schuster. Note also global food economy approach may also be taken e.g. J. Clapp: Food,
(2012) Polity.
6
(1978-9) 92 Harvard Law Review 353.
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aspects of legal forms might be “intrinsically and specifically promotive of good order” for the
benefit of all human life, that is, the “human condition.”7 For Fuller, adjudication as a specific type
of legal form, (whether in courts or other administrative bodies), presented two challenges: first,
what are the limits of adjudication? That is, what tasks can be assigned to courts, where are the lines
that separate out the tasks rightly given to courts and those which are best given to other types of
decision makers like planning boards and corporations and what assumptions underlie the belief
that certain problems are unsuited to litigation?8 And second, in what forms might adjudication be
organized: that is, what types of arbitration exist; do only single panelists make decisions, or are
multiple individuals involved in decision-making?9 These diverse forms of adjudication allow
further reflection on whether certain forms are appropriate, specifically what are their limitations
and dangers, and are there certain forms that are “so altered that we are compelled to speak of an
“abuse” or “perversion” of the adjudicative process.”10
For Fuller, there are certain tasks that he describes as “polycentric problems,” for which
adjudication is unsuited to resolve.11 A polycentric problem resembles a spider’s web. As Fuller
states:
“A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. Doubling the
original pull will, in all likelihood, not simply double each of the resulting tensions but will rather create a different
complicated pattern of tensions. This would certainly occur, if for example, a doubled pull caused one or more of the
weaker strands to snap. This is a ‘polycentric’ situation because it is ‘many centered’ – each crossing of strands is a
distinct center for distributing tensions.” 12
Adjudication is unsuited to resolving such problems because it would be difficult for each side to
present a single argument, as every way of arguing the problem would be correct, making it
impossible to isolate one argument as the ‘main’ defence to any action, or even the main ‘claim.’13
Also, any ruling by a judge on any issue within the problem would set off a complicated set of
tensions through the web, with the result that even where a single issue was resolved, this would
create a set of tensions, which would, in their turn, then need resolving. The difficulty with a
polycentric problem is that the resolution at each intersecting ‘node’ of the tensions does not remain
fixed, because as the judge continues trying to resolve each of the subsequent tensions revealed
following the first decision, this creates a different pattern of tensions which may in fact mean the
7
Coyle above, 194 (emphasis in the original).
Fuller: “The Forms and Limits of Adjudication,” above, 354.
9
Ibid., 354.
10
Ibid., 355.
11
Ibid., 371.
12
Ibid. 395.
13
Ibid., 394.
8
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first, supposedly resolved issue, now looks completely different than it did when it was first
addressed by the judge. The result is the judge has to re-open the first resolved question again, with
the result that another, different set of tensions are created. In this way, any attempt to place a single
resolution on top of a polycentric problem only distributes and redistributes tensions through the
complex web of interconnected dimensions of the problem.14 Fuller offers a useful example, that of
a will that states the deceased’s highly disparate art collection should be left between two art
galleries.15 This is a polycentric problem because the decision to dispose of a single painting affects
the decision on the disposal of all of the others.16 There are many ways of dividing the collection up,
but what is clear is that if one gallery is given the Matisse, it might be less keen to get the Degas,
but more keen on the Bellows etc.17
Fuller’s notion of ‘polycentric problems’ can be understood to reveal two insights in addition to its
implications for adjudication as a particular type of legal form: first, that some problems are highly
complex and are made up of multiple strands that interconnect in highly complex and diverse ways.
And second, that there are many ways to explain what such a (polycentric) problem is, every
explanation of which is correct. It is not simply that there are different perspectives on what the
problem is, as this suggests some explanations may be more correct than others, perhaps because
one individual is more expert than another. Rather, it is that all explanations of the problem are
correct at the same time and it is the way that each individual understands the problem that leads
them to explain it in a particular way. Each explanation does not negate the ‘truth’ of the other
explanations however, as those explanations also remain equally true.
Fuller limited his insights about polycentric problems to the difficulties they pose for adjudication.18
However, he did acknowledge that such problems probably existed in other fora, and this makes
them an ideal vehicle through which to think about complex concepts like ‘food.’ Understanding
food as a polycentric problem means we no longer have to isolate a single notion of ‘food’ as
correct, but instead can accept all explanations of what food is as correct. On this view, more rules,
in the WTO context at least, will relate to food than is at first obvious by a simple search for the
word “food” through the disparate number of WTO agreements. It is also a more methodical way of
teasing out which rules apply to “food’ than our inherent, unscientific ‘feeling’ that, say, the WTO
Agreement on Agriculture must relate to food, because “agriculture” must somehow encompass
“food” too, even though the rules make minimal reference to that word. We can also start to think
14
Ibid. 394.
Ibid. 394.
16
Ibid. 394.
17
Ibid.,394.
18
Ibid. 395.
15
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more deeply about the complex ways that the WTO rules impinge on food and thus reveal the full
impact of the WTO regime as a way of teasing out its regulatory inadequacies. This latter question
will be left for another time, but I will concentrate next on showing how ‘food’ might be understood
as a polycentric problem.
Food as a Polycentric Problem
Fuller describes a polycentric problem as being composed of a number of interconnected strands,
each strand making up a dimension of the problem as a whole. Understanding “food” through this
frame is to embrace the idea that it too is made up of multiple strands. A useful starting point
through which to tease out these strands is the Oxford English Dictionary definition of “food”
referred to above. Here, food is “any nutritious substance that people … eat or drink to maintain life
or growth.”19 Food might be understood as ‘sustenance’ therefore, that is as a ‘substance’ that
supports human life. There is an obvious link between food, specifically the lack of it, and hunger
therefore. Hunger may arise where there is simply not sufficient food for individuals, they cannot
afford the food that is available, or the social structure within individual’s household means that
person does not receive the food that is available as it has been allocated to another, usually male,
member of the household.20 But to understand food as sustenance, is also to consider a person’s diet
more closely: what do they actually need from the substance in order for it to be “food.”
As Krebs points out, there is huge variation between populations as to what constitutes food: the
traditional Inuit derives over 99% of their energy from animal foods, whereas over 20% of the
world’s population never eats meat.21 Whilst some writers argue that there is a ‘natural diet’ for all
human beings derived from our ‘hunter gatherer’ ancestors that mixes meat, fruits, pulses and
vegetables together in the ‘food pyramid,’ this is contested as many human beings live long lives on
a variety of substances which may include some, but not all of those in the ‘natural diet.’22
Some studies investigating Western societies’ attitude to food show increasingly too that the
purchase of food that might be described as ‘very close to nature,’ that is, food that has not
undergone significant amounts of processing, is the food of choice in those societies.23 However,
despite claims to the contrary from some food activists like Michael Pollan, these studies show that
this trend is goes more to those consumers’ choices about what they want to eat, i.e. a cultural
19
Oxford English Dictionary online: http://www.oed.com/search?searchType=dictionary&q=food&_searchBtn=Search.
The causes of famine and hunger are explored by Sen using an ‘entitlements’ analysis in “ A. Sen: Development as
Freedom, (1999) Oxford University Press, Ch7, pp162-168.
21
Krebs above, 1.
22
Krebs, above 5-7.
23
Jauho & Niva: “Lay Understandings of Functional Foods as Hybrids of Food and Medicine” (2013) 16(1) Food,
Culture and Society 43.
20
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choice, rather than an indication of the intrinsic nature of the substance as nutritious form of
sustenance per se.24 The choice to eat these ‘natural foods’ is similar to other food choices derived
from religious taboos that prohibit consumption of certain types of food, like pork for the followers
of Hinduism and Islam; or to cultural taboos that have grown up around which foods are acceptable
to be eaten by members of a specific society. On this latter point for example, the majority of the
UK population’s cultural aversion to eating horsemeat was revealed when food inspectors
discovered traces of horsemeat in frozen budget burgers and lasagna sold by the large grocery
retailers, Tesco, Aldi and Lidl.25 However, it should be noted that for those bound by these cultural
and religious taboos these substances would not be “sustenance” and so not “food” in the sense that
it might be for other individuals.
Food can also encompass the notion of “functional foods,” that is foods that actively support human
well-being in an almost medicinal way.26 As Jauho and Niva point out, the idea of functional food
was introduced in the early 1990s, as the notion of ‘nutrition equals fuel’ was augmented by
‘nutrition equals health’ in the drive to understand precisely what it means to understand food as
nutritious.27 Functional foods are defined as foods that are “satisfactorily demonstrated to affect
beneficially one or more target functions in the body, beyond adequate nutritional effects, in a way
that is relevant to either an improved state of health and well-being and/or reduction of risk of
disease.”28
Accepting that food is wider than simply basic fuel for human life also leads to a recognition that
the wrong food may lead to obesity. There is growing recognition that obesity may not simply be
the result of eating too much food, but arises instead from eating particular chemical components in
processed food, or even from consuming some ‘smart’ foods that contain nanotechnology.29 And, as
a corollary, it is clear that for food to sustain life under the Oxford English Dictionary definition at
least, it must be safe for human consumption. For example, chicken consumed by humans
contaminated with salmonella, campylobacter or similar bacteria; apples sprayed with certain
fertilizers or even meat from animals fed with contaminated brain or spinal cord tissue from cows
infected with Bovine spongiform encephalopathy (BSE) all cause significant health risks to human
24
c/f Michael Pollan: In Defence of Food, (2009) Penguin Books, 4-7.
“Findus beef lasagna contains up to 100% horsemeat,” 7 February 2013: http://www.bbc.co.uk/news/uk-21375594
There are also wider issues of food authenticity here too. See also Krebs above, ch.2.
26
Jauho & Niva above, 47.
27
Jauho & Niva ibid., 44.
28
Diplock, Aggett, Ashwell, Bornet, Fern & Roberfroid: “Scientific Concepts of Functional Foods in Europe:
Consensus Document” (1999) 81(1) British Journal of Nutrition S1, 6.
29
Jauho & Niva above, 47 discussing the lay perception of “good” and “bad food.” Peretti: “Why our food is making us
fat” The Guardian 11 June 2012: http://www.theguardian.com/business/2012/jun/11/why-our-food-is-making-us-fat.
25
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beings and cannot, on this basis, be considered “sustenance” in any broad sense.30
From the previous discussion, the notion of “food” encompasses ideas of sustenance, nutrition, food
safety, hunger prevention, cultural suitability, as well as linking closely to the promotion of broader
health concerns. These understandings of what food is safe, nutritious, or culturally appropriate is
not fixed, but instead change over time as new information about the health benefits of certain foods
or the chemical constituents in food emerge, and as societies’ food preferences change. For example,
Pollan notes anecdotally that as a child in the 1930s and 40s in the United States, his mother
consumed traditional “Jewish-American fare” including stuffed cabbage, organ meats and chicken
liver, usually cooked in duck fat as this diet was heavily influenced by her parents’ emigrant, East
European background.31 As his mother became more influenced by American food choices, so
Pollan’s own diet shifted away from this food towards a more varied menu encompassing Italian
sausages, coq au vin and some TV dinners all cooked in different types of fat thought to be more
nutritious than duck fat by the 1960s; and evolving yet again over until Pollan’s current preference
for ‘natural’ foods, that is foods that have undergone very little industrial processing.32
“Food” is both a complex and evolving notion therefore. However, it is the way that the diverse
understandings of food interact with each other in infinitely varied ways that makes “food” a
polycentric problem, and not simply that there are multiple understandings of “food” per se. This is
because focusing on the multiple meanings of food alone suggests that once these meanings are
fully revealed, they become fixed in a way that allows regulation to be mapped on them with the
result that any food safety problems or support for cultural preferences are resolved for example.
Polycentric problems, by their very nature, make it problematic to separate out the multiple
understandings in this way, as every understanding is connected to every other through the spider’s
web of connected ideas. This makes polycentric problems difficult to regulate. But revealing food
as a polycentric problem enables us to follow one understanding of food through the WTO rules
that apply to it as a way of revealing how those rules intersect with other rules predicted on
different, though interconnected notions of food.
By way of example, one understanding of food is that it must be safe. There are many possible
policy responses that the state may choose to protect individuals from consuming unsafe food: a
state may impose an import ban on the food, which brings into play the rules of the GATT,
30
On the monitoring and government programmes introduced to combat these problems see: The UK Food Standards
Agency: http://www.food.gov.uk/policy-advice/#.U2tiuhakSJU
31
Pollan: In Defence of Food, above, 3.
32
Pollan: In Defence of Food, ibid, 3-4. On Pollan’s preference for ‘natural; foods’ see Pollan: The Omnivore’s
Dilemma above.
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specifically Article XI and the exceptions to the GATT in Article XX(b);33 the Agreement on
Technical Barriers to Trade if the import ban is contained in a technical regulation or perhaps even
the Agreement on Agriculture.34 But the key to this application of the rules, is that the product
subject to the import ban is “food” and as such it must be safe for human consumption. So if
another state does not regard the substance as “food” because its citizens do not eat it, and see it
simply as another agricultural product, how does it affect the application of the WTO rules? A
simple answer to this is of course that what is key is that it is the state imposing the import ban on
the substance that must regard it as ‘food,’ and the views of the other state’s citizens are not
relevant. But if the situation is modified so that the other state requires money from sale of the
banned product to provide food for its citizens to alleviate hunger, then there are two potential
understandings of “food” in play here: ‘food as hunger’ and ‘food as food safety.’ And if a further
problem is added such that the growth of this product has adverse effects on the environment due its
mode of transportation, this brings another understanding of “food,” “food as method of production,”
into play.
A simple retort to these observations is that each is a different policy response to the diverse trade
issues relating to a specific product. This is true, but the wider point is that all these issues are in
play all at the same time. If the balance between the safe food v tradable product problem is
resolved one way, this has direct implications for how the adverse effect on the environment must
then be resolved as it is the panel is concerned with the balance between the positive effects of trade
against fact the food is unsafe. Yet applying the rules to privilege environmental concerns about the
mode of production may push up the cost of the product with the result that it is less competitive in
the market that in turn drives down the amount of revenue derived from trading it. The result of this
is the country trying to rely on the sale of that product to feed its population must once again rethink its policy options. The point is that even though the first dispute surrounding the import ban
on safety grounds appeared to be resolved, in fact that attempted resolution only opens up new
problems and creates new tensions through the interconnected understandings of food onto which
the WTO rules map.
What are the implications of this approach? “Food” is not defined in the WTO rules, so it is difficult
to determine precisely the ways the WTO rules apply to it. It is a useful exercise therefore to set out
the different meanings of food and see how the WTO rules work. It is also useful to think about
how we might examine the rules’ interaction and see where the overlaps and gaps are. What is
33
34
I.e. that the measure is necessary to protect human, or animal plant life, or health.
Explanatory Note following TBT Agreement, Annex 1, para 2.
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“food” is becoming more important for the WTO rules with increasing concerns about food security
especially given the potential impact on agricultural production of climate change. As states
reorientate their domestic agricultural policies to maximize issues surrounding “food” will become
more prevalent and challenging to the WTO and its membership going forward post-Bali.
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