Food additives have played an essential role in human development for centuries. From pickling with vinegar to preserving with salt, additives serve both as a safeguard for human health and a facilitator of population growth. Since the latter half of the twentieth century, the number of food additives that have been introduced has exploded to nearly 4,000. With the increasing adoption of processed foods, safety regulation has taken a more prominent--but questionably effective--role in the regulatory scheme. For example, boric acid was widely used as a food preservative from the 1870s through the 1920s, but was banned after World War I due to numerous animal and human studies demonstrating its toxicity. In the United States, this led to the adoption of the Delaney clause, an amendment to the Federal Food, Drug, and Cosmetic Act of 1938, stating that no carcinogenic substances may be used as food additives.
A merchant in the United States wishing to export goods must consider not only these types of statutory limitations, but those of the importing nation as well. Because exports earn revenue and create jobs, a nation tends to encourage exports rather than limit them and domestic export controls tend to be more moderate.
A major example of this is the Export Administration Act of 1979 (EAA). This Act makes a number of congressional policy statements that suggest an intent to restrict export controls to only those necessary to achieve certain political goals. That said, the Export Administration Act is of limited duration: enacted in 1979 and last amended (extended) in 1985.
Congress' power to regulate exports as expressed in these laws originates from the foreign commerce clause; it is the same provision establishing congressional authority to regulate imports. For nations that are members of the World Trade Organization (WTO), import controls are the most identifiable violation of non-economic trade sanction modalities. Export controls are mentioned in the WTO and General Agreement on Tariffs and Trade (GATT) agreements, but as a practical matter there are no GATT or WTO obligations that significantly affect a country's use of export controls.
In this note, I analyze the trade regulations of the food additive market between the United States and the European Union. In the first section, I discuss the system of export controls in the United States before turning, in the second section, to general European Union import policy and defining case law. In the third section, I examine the governing bodies of the European Union on banned additives before, lastly, considering U.S. leniency and concluding that the key to expediting trade relations lies not in loosening regulations, but rather imposing more stringent domestic standards on the use of food additives---both now and for the future.
Lopez, Anna C.
"Adding Insult to Injury: Food Additives and U.S./ EU International Trade,"
Notre Dame Journal of International & Comparative Law: Vol. 6
, Article 16.
Available at: https://scholarship.law.nd.edu/ndjicl/vol6/iss1/16