TPP’s Orwellian Definition of “Science” in its Sanitary and Phytosanitary (SPS) Chapter

In the language of Orthanc help means ruin, and saving means slaying, that is plain. — J.R.R. Tolkien, ,em>The Lord of the Rings

By Lambert Strether of Corrente.

Let’s begin our quest for “science” with what the (disinformation campaign that is the) USTR’s FAQ has to say about the TPP’s SPS chapter, which controls, among other things, the (imported) food that you eat[1]. (I’ve underlined the bits relevant to this post, although there’s plenty more to dig into, especially the innocuous sounding “import checks” and “risk analysis.”) Here we go:

TPP’s chapter on Sanitary and Phytosanitary (SPS) measures gives American farmers and ranchers a fair chance to feed the region’s people; ensures that America’s food supply remains among the safest in the world; and helps all TPP partners — including developing country TPP Parties — better protect the health and safety of their food through modern, science-based food safety regulation. This involves ensuring that our partners use science and risk analysis  [hmm] as a foundation for SPS measures, which mirrors U.S. food and agricultural safety policy. As examples, they must use appropriate  [hmm] import check and restriction policies focused on direct [hmm] threats to health and safety, avoid duplicative or unnecessary [hmm] testing requirements where food already meets accepted international standards, and use transparent procedures for developing regulations — including opportunities for public comment. Nothing in this chapter in any way lessens or compromises our right and ability to protect U.S. consumers or U.S. agriculture, or to enforce our food safety rules. On the contrary, it will help TPP partners better ensure the health and safety of their food.

(The SPS is Chapter 7 of the TPP; here’s the full text.) And here’s the scenario of concern from a business perspective, with which the SPS chapter is meant to deal Grains:

When a country’s SPS measures step outside of science, however, the resulting incidents slow down the grain importing process, adding time and cost to shipments.

For example, [Floyd Gaibler, U.S. Grains Council director of trade policy and biotechnology] explained that Mexico recently held up shipments of U.S. corn because it required additional fumigation under the presumption that the shipments had excessive soil contamination. Under further examination, Gaibler said the SPS incidents started occurring after Mexico was unable to apply new raised tariffs to corn imported from the United States and Canada due to the North American Free Trade Agreement (NAFTA). The political implication behind an alleged plant health issue makes this SPS measure suspect, according to Gaibler.

Readers will at once spot the post hoc fallacy (“after Mexico was unable”). Readers will also spot the petitio principii (“the political implication behind”). Hardly scientific! More centrally, Gaibler assumes that there was no soil contamination (and note the weasel word “excessive.” Maybe those pesky Mexican eater/buyers don’t have the same definition of “excessive” as grower/sellers?) But there’s no prima facie reason to make Gaibler’s assumption. Take Iowa. Iowa is a big corn state; cursory research brings up a handy brochure titled “Considerations for Managing Contaminated Soils in Iowa” from the state Department of National Resources. Here’s a list of Superfund sites in Iowa. And the Iowa state code says that soil does not need to be tested for contamination unless there’s reason to “suspect” it. 

None of this shows, of course, that Gaibler’s shipment was, in fact contaminated. It does show that there’s no prima facie reason to think that the Mexican officials were wrong in protecting their public in the way they sought to do.[3] Put that aside. Gaibler’s clients have a problem when they ship grain. Gaibler thinks “science” will make that problem go away. But what does Graiber really mean by science? And what does TPP mean? Not — hold onto your hats here, folks — what scientists mean. Or you.

Science vs. The Precautionary Principle

“Science,” as one might expect, is a loaded word in trade policy. For example, here’s Democratic Senator Max Baucus questioning a previous USTR, Ron Kirk. From the Eyes on Trade live blog:

Baucus : SPS?

Kirk: We will press EU to get SPS measures based on sound science, and not fear.

“Sound science” is, of course, a phrase invented by the public relations business as part of the tobacco industry’s campaign against second-hand smoke regulation. So what Kirk is really saying is that trade in cancer sticks is jake with the angels, especially when tobacco-industry funded shell groups say that smoking cancer sticks is jake with the angels. Consider rereading the lofty wording of the USTR FAQ with that perspective, and keep this in mind as we look at SPS in more detail. 

In other words, on food policy, the TPP could be characterized as caveat emptor (“let the buyer beware”). Food is safe until proven otherwise. This is in contrast to the European regulatory philosophy of the “Precationary Principle,” which could be charaterized as caveat venditor (“let the seller beware”). From the Institute for Agriculture and Trade Policy:

But if scientific evidence is insufficient or unclear, the European Commission may use the Precautionary Principle to delay or prohibit sales of questionable foods or ingredients. Agribusiness companies are demanding that the U.S. Trade Representative negotiate TTIP to prevent use of the Precautionary Principle to reject their exports and to protect consumers.

It’s a question of the burden of proof. When our USTR and TPP advocates say “science-based,” what they mean is that in cases of doubt, the burden of proof is on the buyer to prove the product is not safe. What the Precautionary Principle says is that in cases of doubt the burden of proof is on the seller to prove that the product is safe. Caveat emptor; caveat venditor. So we see that “science-based” smuggles in a tendentious legal principle, and has nothing whatever to do with science as such. (We’ll look at how that “the science” can be gamed by sellers below). 

“Science” Based on “Confidential Information”

Most of us think that the essence of science is the free interchange of information; that is, after all, how scientists check each other’s work. (Imagine that Newton had written Principia Mathematica, and then treated it as confidential and proprietary information. The court alchemists of Newton’s day did just that; but not scientists.) The drafters of the TPP do not take this view. From Article 17.6 of Chapter 7:

All communications between the consulting Parties in the course of CTC [Cooperative Technical Consultations], as well as all documents generated for CTC, shall be kept confidential unless the consulting Parties agree otherwise and without prejudice to the rights and obligations of any Party under this Agreement, the WTO Agreement or any other international agreement to which it is a party

(Presumably “all documents” means exactly that; “all documents” including documents giving the results of scientific studies.) TechDirt comments:

TPP does not require traditional rigorous science where results are published openly, subject to peer review, but permits the use of “confidential business information,” where results are withheld and there is no peer review. How that will work in practice is shown by a recent decision by the US Environmental Protection Agency (EPA) that there was “no convincing evidence” that glyphosate, the most widely used herbicide in the US and the world, is an endocrine disruptor. As The Intercept discovered:

The EPA’s exoneration — which means that the agency will not require additional tests of the chemical’s effects on the hormonal system — is undercut by the fact that the decision was based almost entirely on pesticide industry studies. Only five independently funded studies were considered in the review of whether glyphosate interferes with the endocrine system. Twenty-seven out of 32 studies that looked at glyphosate’s effect on hormones and were cited in the June review– most of which are not publicly available and were obtained by The Intercept through a Freedom of Information Act request — were either conducted or funded by industry. Most of the studies were sponsored by Monsanto or an industry group called the Joint Glyphosate Task Force. One study was by Syngenta, which sells its own glyphosate-containing herbicide, Touchdown.

Caveat emptor. “Imported food is safe, but we can’t show you the scientific study we made that proves that it is. Because those studies were done by the people selling you the food.”

“Science” Based on “Economic Feasibility”

Most of us also think that the practice of science doesn’t take feasibility into account. For example, Watson and Crick (and Franklin) didn’t say to themselves: “Well, let’s forget this double helix thing; we don’t have any DNA machines to decode it anyhow, so proceeding further would violate the scientific method.”  The TPP drafters disagree. From Article 17.9 of Chapter 7:

When conducting its risk analysis, each Party shall:

(c) select a risk management option that is not more trade restrictive than required to achieve the sanitary or phytosanitary objective, taking into account technical and economic feasibility.

The Institute for Agriculture and Trade Policy explains:

The “economic feasibility” of the science-based SPS measures to provide the appropriate level of protection is formulated in this provision: “Each Party shall . . . select a risk management option that is not more trade restrictive than necessary to achieve the sanitary or phytosanitary objective, taking into account technical and economic feasibility” (Article 7.6c). “Economic feasibility” provides TPP members with a crucial loophole against providing SPS measures that are science-based.

“[S]cience” cools its heels, waiting for lawyers and economists to decide which SPS measures are “necessary” and to what extent, according to cost-benefit analysis, to provide the appropriate level of protection.10 Cost benefit analysis routinely underestimates the benefits of regulation and overstates the costs.

Caveat emptor. “Imported food is safe, given the scientific study it was economically feasible to do. And don’t worry. We checked with Bob from Accounting.”

“Science” Assumes an Infrastructure for Doing Science

Most insidiously, the practice of science depends on an infrastructure: Laboratories, scientists, trained technicians, a budget. But the infrastructure of science is under assault. The IATP once more:

For example, since the Congress refuses to fund the Food Safety Modernization Act (FSMA), including its import provisions, inadequately funded and staffed SPS measures of the FSMA are not “economically feasible” to implement and enforce. Because the food and agribusiness industry does not want to pay the fees to expedite trade under the FSMA, they appeal to the presidential Office of Management and Budget to do a “cost-benefit” analysis to delay levying of fees.

Caveat emptor. “Imported food is safe, and we’d be proving that with scientific studies if we’d funded the labs, which we didn’t.”


My watchword is always that corrupt language signals corruption. The language of TPP, and the language of TPP advocates, is as corrupt as it can be; the word “science,” to them,” means something completely different from what it means to dull normals like us. Orwell would be proud. You eat food, hence you’re a buyer. Beware!


[1] I’ve got to say that linking the FAQ talking points on a public site to the text of the TPP on a private site site (Medium) strikes me as creepy and corrupt. Right now, every clickthrough by a concerned citizen from the USTR’s public site benefits a private firm, Medium. Medium’s owner, Evan Williams, is a Silicon Valley squillionaire. What’s Williams getting out of the deal? And what’s Obama getting? A contribution to his Presidential Library? After all, the Obama administration was touted as being deeply techie in 2009; the White House site was and is run on Drupal (says View Source), which can surely host a few PDFs, like Wikileaks or the government of New Zealand both do. There’s no infrastructural reason for Medium to host the USTR TPP document trove. So there’s a deal. What is it? (And yes, I’m linking to Medium so that in the unlikely event that a human is tracking their clickthroughs, somebody reads this. I promise to behave better in future.)

[2] And then there’s the whole issue of nitrates in Iowa soil. The conflict in Iowa focuses on nitrates from the soil getting into drinking water, violating Federal standards. I can’t find anythin that directly connects eating nitrates from the soil with problems, but then (a) I’m not a scientist and don’t know the literature, and (b) I most certainly don’t know literature in Spanish which, presumably, the Mexican regulators would know. NOTE: This is not a nutrition site. Please keep comments on point.

[3] Presumably it would not be possible to reject a shipment based on soil management practices as such. that would be, no doubt, political.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. Paper Mac

    The TPP refers to standards set out by the WTO SPS committee, which in turn bind WTO members under the SPS Measures Agreement. I think all of the TPP signatories are WTO members and bound by this agreement, are they not? Why does the TPP duplicate the existing mechanisms for determining equivalence of inspection regimes and disputing technical barriers to trade?

      1. Paper Mac

        Do you have a sense of why this would be done? Do the WTO rules prohibit non-state actors from initiating disputes/claims, while TPP allows them to do so, or some such?

        1. Dwight

          WTO dispute settlement is between states.

          Here’s a book I would like to read if not so expensive. It distinguishes trade law from investment law, and dispute settlement under WTO from investor-state arbitration under investment treaties. NAFTA Chapter 11 allows investor claims against states, so it might be a hybrid, as might be TPP. I’m not a trade lawyer.

      2. NotMarkT

        In examining the TPP, you may want to focus on provisions that are unique to the TPP or incremental. For example, the TPP SPS Chapter includes the following provision that is not contained in the WTO SPS Agreement: “An importing Party shall ensure that its final decision in response to a finding of non-conformity with the importing Party’s sanitary or phytosanitary measure, is limited to what is reasonable and necessary, and is rationally related to the available science.”

        1. TheCatSaid

          Look at the loopholes peppering that last sentence:

        2. Lambert Strether Post author

          “Available science” is really excellent. I’m gunning up my truck right now to drive through it.

          Adding, I’d love to use a comparative methodology, TPP vs. WTO. But this is insanely complex, and I’m a learner. If it were possible to stand on the shoulders of giants….

          Also, if TPP is bad in itself, without reference to WTO, isn’t that enough? (I am not well-versed in what I assume are institutional conflicts between WTO and TPP.)

  2. shinola

    “Risk management” – is that like when a car manufacturer discovers a defect in its vehicles that could lead to injury or death & then contemplates the financial risk? You know – Is it cheaper to correct the defect or pay litigation costs resulting from injuries or deaths?

    Not like anything like this has ever actually happened…

  3. alex morfesis

    corporate sovereigns…the more I dig into the language, the more obvious this has become…this has nothing more to do than to raise entities to a state of sovereign existence…when enterprises are allowed to do reverse tax mergers or “reincorporate” in some minor commonwealth area of the current or former british crown holdings, they are given a life that does not exist in any law in any country…a corporate entity, as such it might be, has only its charter from a state or a nation (red cross in USA is a federal entity created by act of congress)…it exists at the mercy (meaning bakshish) of the entity which granted the charter…mind you, state AG’s only eat up little entities so that they can hold press conferences and convince the red hat church ladies they are tough on crime…you never have seen any AG or Secty of State do anything to any entity of scope or size…

    mayhaps since a few folks have been pointing that out in certain places, the Treasury looks like they are going to put some language in place to “fix” the problem, before a jurist makes a ruling which would blow all this smoke and mirrors to kingdom come…

    sovereign countries signing off on this paperwork will be creating legal corporate states…corporations are not just people too…they will now be nations also…

    pass the GMO pop stuff (probably cant call it popcorn anymore…trademarks, eye pee and all that…)

    has the work been finalized for the 11th edition yet or are we still stuck on the 9th edition…

    2050 cant get here soon enough…ah ..those…

    synthetic winds…

  4. Oregoncharles

    Scientists are not particularly reliable on GMOs, because there’s a lot of career promotion going on, and knee-jerk support of anything that gets called “science.”

    And when it comes to the EU and “precautionary principle,” GMOs are the #1 issue.

  5. meeps

    re: nitrates in food

    “In water or with bacteria, nitrogen forms NITRATES which at low levels are beneficial, but at high levels (more than 80 ppl) are lethal to young animals and children. Also, mouth bacteria and sewage bacteria turns nitrates into NITRITES, hence NITROSAMINES which are cancer-associated. Nitrates are building up in all soil waters below agricultural land, and occur in many desert bore waters. Thus, fertilise plants in the garden at minimum nitrogen levels; do not use heavy doses of nitrogen fertilizer, but rather a modest legume interplant. Check water for human health, especially in deserts.
    Too much animal manure also releases surplus nitrogen. Thus, reduce cattle and run them on pastures, not on feedlots. Dispose of sewage in forests to aid in tree growth. Constantly measure nitrate levels in leaves, water, soil. In particular, do not inflict high nitrate levels on people with malnutrition; they can be killed by an excess of nitrate in their food. Accepted levels in Europe (E.E.C. standard) are 50 mg/l in water (50-80 ppm). These levels are being exceeded where nitrate fertilisers and even natural manures are spread on soils; ammonia from cow dung is now 115,000 t/year in Holland, accounting for 30% of the acid in rain from Dutch sources (N.S. 6 Feb ’86). In humid areas, 70% of human intake is from vegetables, and 21% from water.
    0-50 Safe for human consumption
    500 Spinach grown from compost
    2,000-3,000 Chemical fertiliser-grown spinach”

    Source: Permaculture, A Designers’ Manual, Bill Mollison, Tagari Publications, 1988, p.190

    This was the science of nitrates in soil, water and food in the 1980s. For more recent work, see Bob in Accounting?

  6. M

    It’s my understanding that from a global MNC point of view, the WTO SPS and TBT agreement areas have holes which still give nations some policy space on how they handle imported goods in today’s 21st century global value chain nature of trade. The TPP attempts to shrink or eliminate such holes.

  7. different clue

    Here are two meme-phrases I suggest injecting into the language.

    Non profit sound science.

    Corporate junk science.

    If several hundred thousand Naked Capitalism readers say the words “non profit” every time they say the words “sound science”, and if they say it that way for thousands of times over the next few years, will it begin to take hold?

    If several hundred thousand Naked Capitalism readers say the word “corporate” every time they say the words “junk science”, and if they say it that way for thousands of times over the next few years, will it begin to take hold?

    I leave it up to every reader of Naked Capitalism to make up herm’s own opinion about that. We are in a brain war, though. And brain wars are fought with brain weapons.

    1. greenerpastures

      As someone tangentially involved with BP ecotoxicology research into the Deepwater Horizon spill – trust me – brain wars are fought with the same weapon all wars are fought with: $$$$$$

      1. different clue

        Well . . . if we roll over and accept that, then we are pre self defeated, because we don’t have the $$$$ nor will we. So if we don’t want to accept defeat we will have to find low-budget ways to wage brain war.

        If hundreds of thousands of people can read this thread, then hundreds of thousands of people can make their hundreds of thousands of separate individual decisions about whether “corporate junk science” and “nonprofit sound science” are brainwar ammunition phrases worthy of injecting into the language. Those who decide “yes” can use those phrases in everyday commenting and conversation without having to spend any money at all.

  8. Ignacio

    The contradiction with EU rules in food & health safety is enormous. I guess that if TTIP goes in the same direction it will clash with the normative developed in the last 20 years or so.

    1. different clue

      America can’t MAKE the various EUropean nationstate-governments sign TTIP. If those governments sign it, they do so by their own deliberate open-eyed choice. How do the various European peoples feel about that? Do the European nation-states have legitimate governments? Or do they have Class Enemy Occupation regimes? And if they have CEO regimes, what do they do about that?

  9. Elizabeth Burton

    Anyone who’s following the procedures applied to the destruction of free public education will recognize this particular sleight of hand. The “reformers” exclude those actually capable of determining the information most needed—educators, scientists—and replace them with business and financial “experts.” Corporations cut nice, fat checks where needed to ensure support while launching a huge, well-funded propaganda campaign to ensure what they’re doing sounds like something only an idiot wouldn’t appreciate.

    But then, we’ve known for a long time now that business trumps the safety and well being of everyone but the corporations. All we can do is keep yelling loud enough in simple enough language so the “idiots” start hearing how they’re being screwed.

  10. allan

    U.S. loses WTO appeal in Mexican tuna dispute

    The Appellate Body concludes that the United States has not brought its dolphin-safe labeling regime for tuna products into conformity with the recommendations and rulings of the (WTO’s dispute settlement body),” the WTO’s appeals judges said at the end of their 144-page ruling on the case.

    If you like your dead dolphin with the tuna fish salad,
    you can keep your dead dolphin with the tuna fish salad,

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