Why are Codex guidelines and standards a
containment, a template, within which nations must
then operate or face a host of nasty consequences?
Partly because since the creation of the World Trade
Organization and its internal operating agreements,
every member nation knows that its laws and
regulations can become the object of a WTO ruling
and the object of political pressure to harmonize.
Back in 1997, I watched as the realization dawned on
Codex delegates that they had entered into a new era
of food law harmoninzation.Too late to cry now was
the essence of the message delivered to them by the
counsel from WTO.
A few months later, I was dining in Washington
with another group of food regulators fresh with the
kind of know-it-all arrogance that strikes people
who have been around the block at Codex once or
twice, and I said: "You know, it's really
fascinating to watch how regulations that affect us
here at home start out at international meetings."
"No, they don't," intoned a voice from the other
end of the table. "They start with decisions by
industry. I was at a trade meeting where a new form
of packaging was unveiled. Not too long thereafter,
the same idea was presented at Codex. That's the way
things are done now. And you would do it that way
too. Why run around from country to country seeking
the regulations you want when you can do it all in
one shot at Codex?" The speaker, whom I have
paraphrased, was a bureaucrat from the Department of
Agriculture.
Was he right? Is Codex the place where the templates
for new world-wide regulations are written after
business interests have agreed to them?
Through all the years of meetings I have attended
since, the answer has come through loud and clear.
Yes, he was right, but the pathways can be complex.
It works like this: big business and
bureaucrats get together and agree on how to write
new international regulations in private meetings.
When they agree, their agreements then surface as
working projects, draft guidelines, or proposals at
Codex. In some cases the pathway is very, very
clear. In others it is not. In the dietary
supplements case, a series of meetings were held by
business and bureaucrats who agreed on some issues,
went forward on those at Codex, and then agreed on
others now contained in the draft guideline on
vitamin and mineral supplements now at Step 8.
The real key to how things work at Codex is
contained in the phrase in Article 1 of the Statutes
of the Codex Alimentarius Commission where it says:
the purpose is - "(b) promoting the coordination of
all food standards work undertaken by international
governmental and non governmental organizations;"
What is so significant about this phrase are the
words promoting the coordination of ...
international governmental and non governmental ...
What that means in the real world is taking
the work of international industrial lobbying groups
and then cloaking that work with legitimacy and now
real binding legal and political force by feeding
their agreements through Codex, an international
governmental entity. The more jaded among you will
say, 'Well, how is that any different from the way
things have worked in Washington for decades?' The
answer is it is different because decisions are made
by bureaucrats and the actions are
offshore. With a truly domestic piece of
legislation you have a chance of overcoming
industrial pressure with grassroots pressure on the
people you elected. With an international guideline,
by the time it's done you have almost no chance to
win. You can't bring pressure to bear in all the
right places. The real damage was done long ago and
long before you felt it.
Would some bureaucrat in Washington deliberately
mislead anybody? You bet.
Again and again in a variety of contexts, I have
heard bureaucrats tell unwary consumers and
reporters tall tales filled with half truths. At the
end of a meeting in Washington last Fall, a
Washington-based attendee slipped me his card and
said "If you ever get a straight answer out of these
folks let me know."
When I started to catch on to the game myself, I
began changing the way I prepared for meetings and
the way I asked questions. I hunted for evidence of
these meetings and premised my questions
accordingly. The results were startling. Bureaucrats
knew months, sometimes years ahead, what was going
to happen next, and they told me. I knew, for
example, over two years ago that the German risk
assessment for vitamins and minerals was being built
— long before others 'discovered' it in January.
But they do still try to con you even if you know
the game. More recently in Europe an EU bureaucrat I
was interviewing said, "Of course, it is different
for the FDA. They can't regulate food supplements
the way we do because of DSHEA."
"Did someone tell you that?" I replied. "You have
been misinformed. DSHEA contains a huge escape
clause 'substantial or unreasonable risk of ... ' "
I didn't get to finish my sentence. He did it for
me, ' ... of illness or injury.' "You could drive a
whole herd of camels through that language. Do you
know any bureaucrat who wouldn't?" I said. A huge
grin covered his face like a Cheshire cat smile. I
had caught him and he knew it.
Why aren't they telling the truth and the whole
truth? Because it is a truth they do not want you to
hear.
No one in this game internationally or in
Washington wants you to know that the upcoming Codex
guideline will circumscribe what Congress does. It's
a little game they all play now — decide offshore
what to do, write a standard or guideline, tell the
elected representatives: find a problem at home,
launch a PR campaign, pretend you are writing new
legislation to fix the problem.
Indeed, the concept of gamesmanship is now so
imbedded in the bureaucratic mind that it is hard to
shake out even when half truths won't work. I saw
another real life demonstration of this mentality
when a consultant told a room full of bureaucrats,
"Half truths won't work here. They know what you are
doing." The assembled bureaucrats reacted by
suggesting that yet another study on how to 'disinform'
the public needed to be done. A meeting organizer
expressed disappointment that I was there to witness
this. "We thought nobody from the press would come.
We had buried the notice so deep in our website," he
commented.
What are they really doing? Building blocks for
global regulations through 'consensus.'
The name of the game here is convergence and
harmonization, to build regulations and laws in each
country that fit together with those written in
other countries and at places like Codex so that
trade (with a hugely expanded definition of trade)
moves seamlessly. The mantra of the hour is
'approved once, accepted everywhere.'
Can this be overcome? Is it too late? No, not if
just the right steps are taken right now. Otherwise,
we can all look forward to a harder fight with less
chance of success in Washington in the future.