2. Regulations, food, and letting big business write the rules

“This isn’t about importing more American products. It’s about importing the American economic model.”
Sharon Treat, Institute for Agriculture and Trade Policy⁴

“This administration is not going to compromise. We either have fair access for agriculture or we won’t have a deal.”
Robert Lighthizer, United States trade representative⁵

Trade deals today are less about reducing tariffs, already at historically low levels, and more about regulations and standards that supposedly ‘interfere’ with trade. The argument runs like this: I make lightbulbs and I want to export them into another country. The lightbulbs are safe, but they don’t meet the safety standards of the country I want to export to, so that country blocks imports of my lightbulbs. As an exporter this strikes me as unfair. It looks, from that perspective, like a trade barrier dressed up as a safety standard.

Modern trade deals spend a lot of effort trying to level (or ‘harmonise’) such standards. They do this by judging different regulations that achieve the same goal as ‘equivalent’. You can trade such goods because they’re essentially the same.

The problem with this approach is that goods are very often not ‘equivalent’ at all, and by treating them as such, we risk undermining what are often hard‑fought‑for environmental, animal welfare and consumer protections. Even lightbulbs are not straightforward. In the UK, energy-inefficient incandescent bulbs were phased out years ago, but they are still on the market in the US, and the Trump administration tried to water standards down further.

The scope of the problem of ‘harmonising’ standards though is nowhere more evident than in the contentious issue of food.

US food standards: a tale of chlorine, pus and antibiotics

US food standards are radically different to Britain’s. US agriculture is dominated by massive corporations, farming on an industrial scale, with intensive use of antibiotics, hormones and steroids to promote rapid growth of animals and prevent illness in what are often extremely unpleasant and unhealthy conditions, along with an excess of chemicals, and allowances for stomach‑churning things to end up in the food we eat.

Britain, up to now in the EU, embraces a farm‑to‑fork method of food production where sustainability and animal welfare are protected to some degree and the use of dangerous chemicals is reduced. It is by no means perfect, but it’s a radically different approach to that employed in the US. The final product might or might not taste similar, and might or might not be as safe (though US food poisoning rates are much higher than European rates), but the products are certainly not ‘equivalent’.

This situation has come about because of the tremendous power of big business within the American regulatory system. Small farmers have been decimated by this system in the US. Business has created a system in the US where the burden for regulation falls on the state, and business freedom is paramount. They call this a ‘science‑based’ approach, and demand it aggressively in trade talks. ‘Science’ sounds good, but in trade deals it’s a shorthand for a system which allows business to develop and market products as it wants, and only when harm is proven can action be taken against that produce – an incredibly difficult task when big business is so well resourced, and those harmed often aren’t.

It contrasts sharply with our approach, the so‑called ‘precautionary principle’, which takes a cautious approach to health risks, puts the burden on business to demonstrate a product is safe before it can be sold, and bans foods where there is a substantial and credible risk to health. Worryingly, both Boris Johnson and his lead trade negotiator to the EU have endorsed the ‘science‑based’ approach, which means throwing caution to the wind when it comes to embracing technologies like genetic modification and intensive chemical use.

Five food standards under threat

The US is forceful in its demand that US food should be allowed onto British supermarket shelves under a US trade deal – in fact successive US representatives have insisted there’s no trade deal without it.⁶ As well as the general principles above, this includes some specific worries for British consumers:

It would certainly mean more genetically modified foods. GM ingredients are in the majority of US processed foods but virtually no European foods, owing to strong British and European disquiet about the technologies involved and the potential control it gives big business over the food system. Boris Johnson has clearly indicated he might be willing to agree to US demands on GM foods, saying British food will be “governed by science, not mumbo‑jumbo”.⁷

Chlorine chicken, the now‑famous symbol of a US trade deal, is poultry washed in pathogen reduction treatments such as chlorine dioxide. But the problem is less the chlorine than what the chlorine is hiding. The washes essentially remove bacteria which has accumulated over a tortured lifetime. Chickens can barely move, cluck or eat, never see sunlight, regularly suffer heart attacks because of their unnatural size, and are covered in sores.⁸ What’s more, the washes might actually disguise (rather than eliminate⁹) some pathogens. Food poisoning is a big problem in the US, with studies suggesting that the percentage of people who fall ill with food poisoning annually is up to ten times higher in the US than the UK.¹⁰ Workers’ rights in the US meat industry are often appalling, with the chemical washes playing a part in that. Testimony shows the washes are bad for workers – with cases reported of “rashes, burns, destruction of the eye tissue, difficulty breathing, and inflammation of the respiratory system”.¹¹ Leaked papers from US‑UK trade talks reveal that the US has pressured the UK to accept chlorinated chicken, even offering to help with a PR exercise to sell chlorinated chicken to the UK public. In fact, the government has tied itself in knots trying to find ways of giving into US demands while also convincing the public they haven’t – most recently planning to allow chlorine chicken into the British market but with higher tariffs. As campaigners have pointed out, this is no way to protect decent food standards, not least because tariffs can be simply lowered over time.¹²

Much other US meat is also produced on an industrial scale, with conditions as bad as those in the chicken sheds. In particular, hormones, steroids and antibiotics are regularly used to make animals grow bigger faster (regardless of the impact on the animal’s ability to walk!) and to prevent them getting ill in the unnaturally close conditions in which they live. Some never see sunlight, or eat grass.¹³ The use of many of these chemicals is bad for humans too – antibiotic overuse is threatening to make these drugs useless as bacteria develop resistance to them, which would take away one of the most crucial tools of modern medicine. US pigs regularly contain ractopamine, which makes pigs collapse, tremble, suffer liver and kidney dysfunction, and even die, and might well also have serious effects on human health when consumed.¹⁴ It’s not just Europe that’s worried – over 160 countries, including Russia and China, have banned this dangerous chemical, as well as US pork which contains it.

A range of stomach‑churning food standards, including allowing higher levels of pesticides in vegetables (the US allows 72 chemicals banned here in Britain, including some responsible for serious harm), higher levels of ‘somatic cells’ in milk (often meaning more pus, owing to infection in the cow), traces of insects, arsenic and even excrement in various foods. A recent report shows that American apples are allowed to contain 400 times the amount of some insecticides linked to serious health conditions, and grapes 1,000 times the amount.¹⁵ Even baby food carries higher risks in the US. In the UK, baby food has special standards, including a complete ban on artificial colours and e-numbers and very low maximum levels of pesticides. The US has no specific regulations for baby food. A recent test of baby foods in the US found that 95% contained toxic minerals and 73% had arsenic.¹⁶

A move away from our current system of ‘geographical indicators’ by which certain products have their local identity and production methods protected – think Cornish pasties, Melton Mowbray pork pies, Stilton cheese and Arbroath smokies. The system also sets a quality standard for products sold under these iconic names. In trade talks to date, the US has “pressed the UK to move away from current EU approach on generic terms”. This would potentially allow American companies to produce and sell ersatz ‘Cornish pasties’ themselves.

Proponents of allowing these types of food into our markets often argue that it’s consumer choice: “If you don’t like it, don’t buy it!” But the argument is disingenuous, not least because the same big business lobbies pushing to cut food standards are also arguing against our labelling standards. Nutritional labelling can literally be a life saver, for instance for people who need to reduce their sugar or salt levels for health reasons – especially things like ‘traffic light’ labelling, which make it easy to see at a glance if something is high risk. But in preliminary discussions (see ‘what the trade papers say’ below) the US has already challenged this type of labelling. Such systems are a problem for big business, whose processed foods tend to be higher in salt, sugar, fat and GMOs.

There’s a deeper problem too. We’ve already seen that trade deals don’t necessarily directly lower standards. But by forcing producers into competition with those practising lower standards, they do make higher standards unsustainable. Even with decent labelling, this competition would force farmers to pressure the government to abandon standards here too. Before long, high food standards would be the preserve of the few who can afford to shop in niche markets. In this way, modern trade deals force a race to the bottom in standards and protections.

Overall, very few British people support such an agenda. In fact, the overwhelming majority, according to opinion polls, would rather have no trade deal with the US than one which deregulates the food industry. Asked whether Britain should lower food safety standards to secure a trade deal with the US or retain current standards, only 8% of the public think the UK should lower food safety standards, with 82% preferring to keep current standards.¹⁷

Cosmetics

Food is where the threat to our regulations and standards is most newsworthy, but the issue is much wider. One area where the US’ ‘market knows best’ philosophy is most extreme is the cosmetics industry. As with food, some of the chemicals allowed in US cosmetics seem almost unbelievable, including formaldehyde and coal tar, with even asbestos being found in small amounts in makeup marketed to children.

A core problem is that the US law that regulates cosmetics hasn’t been updated since 1938. This leaves the regulatory authority – the Food and Drug Administration (FDA) – with a very limited ability to intervene in the market to prevent harm, even serious harm. As the US government admits, “FDA’s oversight of cosmetics is limited”.¹⁸ In the US, businesses do not have to have their product’s ingredients approved before it is placed on the market. Over 1,300 toxic ingredients have been banned from use in cosmetics here, with restrictions of another 500 ingredients. By comparison, only 11 are banned in the US.¹⁹ Animal testing of cosmetics is legal in the US, but banned in Britain.

As with food, in the US the burden broadly lies with the regulator to prove something is unsafe, rather than with business to show it’s safe – and this can only happen after a product is already on the market. Corporations are not required to tell the regulator about their product’s safety, or to disclose manufacturing locations, or the quantity of ingredients in their product. What’s more, even when a product is found to be in violation of the basic standards, the regulator does not have the power to recall those products.²⁰

All of this explains the terrible scare stories around cosmetics in the US. Among the most incredible are traces of the deadly toxic substance asbestos found in makeup marketed to children in major US high street stores. Asbestos ends up in makeup because it is often found near talc, a common ingredient in many makeups, and poor regulation means that asbestos isn’t properly separated from the talc.²¹ In 2019, the FDA confirmed that asbestos had been found in several products at Claire’s Accessories,²² a store aimed at children. Although Claire’s recalled the products out of an “abundance of caution”, the regulator was only able to issue a ‘safety alert’.²³ As one campaigner said: “When it comes to cosmetics regulation, it’s the Wild West… consumers end up with unsafe cosmetics staying on store shelves even after harm has been proven”.²⁴

There are a number of other chemical substances freely available in US products, but banned here in Britain, including:²⁵

• Formaldehyde used in hair straightening treatments, nail polish and eyelash glue. Formaldehyde is a known carcinogen.
• Parabens used in skin and hair products. These have a tendency to mimic oestrogen in the body, wreaking havoc on your hormonal system.
• P-Phenylenediamine derived from coal tar in hair dyes. This can lead to very severe allergic reactions, in severe cases causing blindness.
• Triclosan in soaps and toothpastes, which is believed to spread antibiotic resistance.
• Phthalates in perfumes or shampoo, which can result in lower testicular volume and semen production, and worse semen quality.

The Trump administration unleashed a wave of deregulation, attempting to relax even these loose chemical laws, for instance further deregulating asbestos. While this was a particular hobby horse for Trump, the deregulatory demands of big business are unlikely to disappear under a Biden presidency. In fact, Biden has already brought chemical company executives onto his transition team.²⁶

Unfortunately, America’s big business community might find a willing partner in the British government, which has itself tried to water down EU chemical laws. The EU is currently looking at prohibiting the use of titanium compounds in sunscreen, for instance, on the basis that tiny particles can penetrate the skin and cause cancer. But the EU plans were challenged by Britain even before it left the EU.²⁷ Boris Johnson’s desire for so‑called ‘science‑based’ rather than precautionary standards could well accord with US objectives in a trade deal.

Good regulatory practice and regulatory cooperation

‘Good practice’ and ‘cooperation’ sound like positive things. Indeed, there might be nothing wrong with different countries discussing their regulations to see whether it makes sense to learn lessons from regulatory practices elsewhere. But, in the context of trade policy, ‘regulatory cooperation’ has a specific meaning, which gives big business new and special powers over the regulatory process. In particular, the US uses ‘good regulatory practice’ as a shorthand for a deregulatory approach in the name of ‘cutting red tape’.

Trade deals can include what is known as a ‘necessity test’. This is a requirement that regulations and other measures taken by government should not be more burdensome than necessary on business. This is a subjective criteria which leaves governments at constant threat of being challenged by corporations. It means that trade rules create pressure on governments to opt for voluntary self‑regulation by business – always less ‘burdensome’ than regulation.

Although regulatory cooperation can work in various ways, it increasingly means:

• Mandating regulators to take account of business interests from trading partner countries when creating regulations.
• Giving business lobbyists guaranteed access to decision‑makers, and the ability to object to proposed regulations, often before elected representatives have even seen the proposals.
• Insisting on the ‘necessity test’ – that regulations are not more onerous on business than is strictly necessary.

In the US’s negotiating mandate, they call for “strong provisions on transparency and public consultation that require the UK to publish drafts of regulations, allow stakeholders in other countries to provide comments on those drafts, and require authorities to address significant issues raised by stakeholders and explain how the final measure achieves the stated objectives”. For ‘stakeholders’ here, read business lobbyists.

There is a regulatory cooperation chapter in the EU‑Canada trade deal (CETA). Recent reports show how these formal working groups of regulators can demand changes to regulations. So officials, meeting in secret, and working closely with the very industries they are supposed to be regulating, effectively make regulations with little public or parliamentary scrutiny. According to reports from recent meetings, this can include publicly sensitive issues such as challenging prohibitions on chemicals such as the controversial herbicide Glyphosate.²⁸

What the trade papers say

All of these areas are on the agenda in US‑UK trade talks. In fact, changing Britain’s regulatory framework is precisely why the US is so interested in this deal. The US hates the EU regulatory framework, and though Trump in particular thought that Brexit was a great way to undermine it, the US demands are unlikely to dramatically change under Biden. The US negotiating objectives are clear that a key aim of the deal is to “Promote greater regulatory compatibility to reduce burdens associated with unnecessary differences in regulations and standards, including through regulatory cooperation where appropriate” and that this includes establishing “a mechanism to remove expeditiously unwarranted barriers that block the export of US food and agricultural products”. That means a body or process that can challenge British standards that the US doesn’t like. In particular, the US wants to “strengthen implementation of the obligation to base SPS measures [‘sanitary and phytosanitary’ – health and safety measures related to food and agriculture] on science”. And as we’ve seen, ‘science’ here is their code for whatever the market wants.

The US negotiating mandate wants “to eliminate unjustified trade restrictions or unjustified commercial requirements (including unjustified labeling).” Meanwhile, the leaked papers of trade talks between the US and UK say: “The US views the introduction of warning labels as harmful rather than as a step to public health... they are concerned that labelling food with high sugar content (as has been done with tobacco) is not particularly useful in changing consumer behaviour.”

The leaked papers from the trade talks show the US regulatory agenda being pushed hard. For instance, in November 2017, “The US repeatedly emphasised their view that the UK should seek regulatory autonomy following EU Exit to allow us to evaluate methods/products independently.” Then in July 2018, the US lambasted Theresa May’s Chequers plan “and the UK’s decision to attempt to align with the EU on Agri‑food and SPS” as “the ‘worst‑case scenario’ for a UK-US FTA”. The US has also promoted its own voluntary standards, with industry giving direction to regulatory bodies and business given the freedom “to demonstrate their products are safe and effective” in whatever way they see fit.

When it comes to chemicals, the US administration loathes the EU chemical regulatory framework, known as REACH, and devotes several pages to the problems of this framework in its annual ‘Foreign Trade Barriers’ reports.²⁹ It takes particular aim at “unnecessary” chemical regulation which forces business to apply for authorisation to use certain chemicals, including troublesome “safety data information requirements”.