Public Perception of Risks Under WTO Law: A Normative Perspective

March 8, 2012 12:00 AM
Forthcoming in Geert van Calster and Denise Prévost (eds), Research Handbook on Environment, Health and the WTO (Edward Elgar, UK, 2012).

The exact role that public perception of risks, and more in general public opinion and consumer concerns, may, and ought to, play in risk decision-making is one of the most challenging, yet little explored, issues under WTO law. How does the WTO take into account public perceptions and ensuing concerns? What is the place that public perceptions of surrounding risks play in WTO law? How responsive to public perceptions can WTO Members be? Can public perceptions justify regulatory action under the WTO ? In the affirmative: are there, as a matter of WTO law, limits upon the extent to which decision-makers may have regard to public perceptions when adopting food regulations? This chapter aims at addressing these questions by focusing especially on the extent to which WTO Member decision-makers are, or ought to be, legitimately entitled to take consumers’ perception of food safety risks into account under the SPS Agreement. Section II briefly sketches how the WTO governs food safety risks. After illustrating the scientific rationale underpinning the WTO/SPS regime of supervision of risk policies, section III explores whether this discipline allows, at least in principle, to accommodate public perceptions of food risks. Section IV systematises the public perception-related case law developed by the WTO Dispute Settlement Bodies when reviewing the legality of food measures adopted by WTO Members and measures the extent to which these judicial bodies have been willing to take into account public concern. Section V identifies and discusses the consequences stemming from the SPS Agreement’s failure to respond to public perception. Finally, section VI takes up the difficult question of how the WTO should account public perception of food safety risks, by raising questions for further research. Although modest and largely speculative, the ideas put forward in this chapter nurture the ambition to initiate a new normative discourse around the issue of public perception of risk.

Keywords: WTO, SPS Agreement, Risk, Risk Regulation, Perception, Consumers, BPA, Nanotechnology, 

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