Part I examines in detail the two conflicting laws that are the basis of this Comment—Title III of the Bioterrorism Act and the SPS Agreement—focusing on those portions of Title III that adversely impact international trade. Part I also presents the WTO case EC Measures Concerning Meat and Meat Products (Hormones), the first food regulation case disputed in the WTO system for a violation of the SPS Agreement. This case clarified the two major principles of the SPS Agreement that are explored in this Comment: the prohibition on discrimination and the obligation to support trade–restrictive measures with an analytical risk assessment. As such, it will be used as a tool to explain these principles and illustrate how a WTO member could successfully dispute Title III’s compliance with the SPS Agreement.

Part II of this Comment analyzes Title III’s conformity with the SPS Agreement. This Part establishes that Title III is subject to the SPS Agreement because it is a sanitary measure designed to protect human life and health from the threat of deliberate food contamination. Part II then argues that, while motivated by the real threat of bioterrorism, Title III nonetheless violates the nondiscrimination principle of Article 2.3 of the SPS Agreement by discriminating against foreign imports. Part II also argues that Title III violates Article 5 of the SPS Agreement because it is a trade restrictive regulation that is not based on a supportive risk assessment. Finally, Part II asserts that, because Title III exempts a large number of direct-to-consumer food sources from its administration, its overall ability to provide bioterrorism protection is significantly diminished. This presents the question: if Title III fails to achieve its stated purpose, can it ever comply with the risk assessment principle of the Agreement?

Part III concludes that Title III of the Bioterrorism Act violates two key provisions of the SPS Agreement. Because the Bioterrorism Act as written specifically requires the trade-restrictive measures in question, Title III should be rejected in its entirety to remain consistent with U.S. trade obligations under the WTO. This Part then evaluates the implications of Title III’s breach of the SPS Agreement. If the United States retains the measure, it risks an adverse decision from the dispute settlement system of the WTO. In closing, Part III recommends that the United States collaborate with international trading partners in the future to achieve a global bioterrorism solution that is sensitive to trade considerations.

Recommended Citation

Boisen, Claire S. “Title III of the Bioterrorism Act: Sacrificing U.S. Trade Relations in the Name of Food Security.” American University Law Review 56, no. 3 (February 2007): 667-718.