What are benchmarks for a new NAFTA?

Corn pile
Used under creative commons license from j_regan

This blog is part of a series exploring NAFTA and agriculture. The series is based on the larger paper: NAFTA Renegotiation: What’s at stake for farmers, food and the land?

Commerce Secretary William Ross has stated that the TPP should be the starting point for a NAFTA renegotiation.70 But the TPP was rejected largely because it continued a failed approach to trade which benefits corporate and financial interests.

A new approach to NAFTA for agriculture must start with a goal to rebuild farm and food systems that will support fair and sustainable rural economies and food supplies in all three countries. The following benchmarks for a new NAFTA have been identified by IATP, Food and Water Watch, the National Family Farm Coalition, the Rural Coalition, National Farmers Union and R-CALF71:

Improve the transparency of the trade talks

The input of rural communities and all affected sectors is crucial to an effective agreement. Public consultations must not be limited to a single hearing in Washington, D.C., as the Trump Administration has done. There should be regional consultations throughout the U.S., including rural parts of the country. The trade negotiations process itself must be made more transparent, as opposed to past trade negotiations, where much of the proposals and text have been kept secret. Future NAFTA documents should be made public to make it possible for meaningful debate on the agreement as it is being developed.

Eliminate the Investor State Dispute Settlement (ISDS) mechanism

NAFTA was the first agreement to include ISDS. This highly controversial provision of NAFTA, which extends the rights of corporations to sue governments, has come under widespread criticism from civil society organizations in all three NAFTA countries. While there have been only a few cases involving agriculture this mechanism has been used repeatedly to threaten progress on environmental and water protections, and energy laws and regulations. For example, TransCanada recently sued the U.S. government over the cancellation of the Keystone XL pipeline. The company dropped the case only after the Trump administration approved the pipeline (and backtracked on a campaign promise to require the use of U.S. steel). The Trump Administration’s notice of negotiating objectives to Congress in July outlined reforms for ISDS that very closely mirror minor reforms agreed to as part of the Trans-Pacific Partnership, leaving in place the rights of corporations to sue governments.72

Restore Country of Origin Labels (COOL)

As part of the NAFTA renegotiations, the U.S. should request that Canada and Mexico not enforce the COOL ruling at the WTO. COOL supports the interest of consumers in knowing where their food comes from and gives additional value to farmers in the marketplace. COOL has been a source of friction between the three countries since the U.S. passed COOL in the 2002 Farm Bill. Mexico and Canada successfully challenged the original COOL, and then a revised more detailed COOL, at the World Trade Organization. The U.S. Congress withdrew COOL for meat in 2016 in response to the WTO rulings. Many U.S. farmer and rancher groups, like R-CALF, want COOL to be reinstated through a NAFTA renegotiation.73

Restore national and local sovereignty on farm policy

All nations should have the right to democratically establish domestic policies, including farm policies that ensure that farmers are paid fairly, and that protect farmers and consumers. Two critical policies essential for ensuring fair trade in agriculture focus on preventing dumping (when imports are unfairly priced below the cost of production) and protecting supply management systems. While the U.S. has existing tools to prevent agriculture dumping imports, it has not effectively applied them. For example, Florida tomato growers have been hit by an influx of Mexican tomatoes since NAFTA, and while several dumping investigations have taken place and temporary agreements reached74 major tensions remain. Mexico has applied antidumping duties on U.S. apples, and against U.S. exports of chicken thighs and legs.75 Additionally, anti-dumping rules don’t apply effectively to agricultural products that are seasonal and perishable, and where only parts of the country might be affected (like strawberries grown in Florida).

Supply management programs have been the steady target for elimination in the negotiation of free trade agreements. In the case of NAFTA, the U.S. dairy and poultry industry have long targeted Canada’s supply management system. Poultry companies like Tyson and Pilgrims Pride want some of the gains won under the TPP that weakened Canada’s poultry supply management system to transfer to NAFTA.76 Well run supply management programs help ensure prices are stable, and keep family farmers in business. The United Food and Commercial Workers (UFCW) in the U.S. is supporting Canada’s poultry and dairy supply management system, arguing that higher and more stable prices for farmers and growers is also better for workers.

Protect farmers’ rights to seeds

The biotech industry has been pushing for a TPP-like chapter on intellectual property in NAFTA, which would increase pressure on Mexico to change some of their intellectual property (IP) laws for seeds. The TPP required all countries to join the global seed breeders treaty, known as UPOV91, which prevents farmers and breeders from sharing seeds, while empowering global seed companies like Monsanto and Syngenta.80 Mexico is home to many ancient breeds of corn and tomatoes that are critical in adapting to climate change.81 Monsanto has long targeted Mexico’s intellectual property laws for seeds in order to sell genetically engineered corn in the country. A major civil society movement in Mexico has blocked the approval of Monsanto’s GE corn, most recently supported by a court ruling supporting the ban.82

Reject TPP proposals to speed adoption of new and unregulated agricultural technologies

The TPP was the first agreement to specifically identify rules for trade in GMOs. TPP provisions also apply to new, more powerful genetic engineering techniques, such as CRISPR. Importantly, the biotech rules were not within the food safety section of the agreement, but rather within the chapter related to tariffs (Market Access and National Treatment) with the goal of expediting the import of GMOs. The result was that human and environmental safety criteria involving GMOs and products derived from new technologies like plant synthetic biology would be considered in terms of how they affect trade. The U.S. Biotech Crops Trade Alliance has proposed that NAFTA require regulatory approvals of GE crops in one NAFTA party be accepted by the other parties, regardless of whether or not that approval was based on publicly available peer-reviewed data.83 The TPP’s biotechnology section would have prevented export rejection because of a low level presence (LLP) discovery of an unapproved GMO. By using the proposed TPP’s rapid response mechanism, the import of unapproved LLP GMO shipments would be expedited, reducing the time required for a thorough scientific risk assessment. The U.S. Biotech Crops Alliance is pushing to include the TPP language on low level presence, and to make that section legally binding, within NAFTA.84

Strengthen food safety protection

Food safety measures under trade agreements often make bold claims about protecting safety with “high standards”, but do not require countries to adequately resource their food safety system. A renegotiated NAFTA must oblige governments to provide adequate resources to implement the SPS chapter. A renegotiated NAFTA that adopts food safety provisions agreed to under the proposed TPP should not include provisions that grant food companies additional opportunities to challenge the rejection of shipments for food safety reasons. The U.S. Wheat Associates and National Association of Wheat Growers said they wanted to see the much weaker food safety rules negotiated in the TPP imported into a new NAFTA.85

Protect human and environmental safeguards

NAFTA created space for what is called “regulatory cooperation”, a process which seeks alignment of regulations, many related to food and agriculture, between signatory nations. But far from ensuring improvements in regulatory processes and systems, regulatory cooperation limits the ability of individual governments to innovate and improve regulations and regulatory systems under the pressure of meeting trade agreement provisions. The chemical industry, including agriculture chemical companies like Monsanto, Dow and DuPont, who favor less regulation of all kinds, are pushing hard for even higher levels of cooperation and streamlining based on risk, rather than a more rigorous hazard-based system.86 The next iteration of NAFTA’s Regulatory Cooperation could be the TPP chapter on Regulatory Coherence which created what amounts to an early warning system for the formation of regulations in all TPP countries, including state regulations. Regulations would then be periodically reviewed to determine whether they are still necessary. A new NAFTA should not undermine or weaken national-level regulations that protect public health and the environment.

Eliminate procurement provisions

NAFTA gave access to government procurement programs to companies from all participating countries. One of the exceptions to procurement program access was food-related programs. Communities across North America are working to transform local economic systems so that they are more sustainable and equitable. Many states are using public procurement to support these efforts. Farm to school programs incentivize purchases from local farmers. The Canadian government recently agreed to sweeping new trade rules governing procurement programs in the Canadian European Trade Agreement (CETA). Those changes should not be transferred to NAFTA. Public food programs at all levels should not be subjected to trade rules and procurement policy should be under the purview of state and local governments. A group of 11 Senators, including Senators Merkely and Baldwin, have called for the elimination of the Government Procurement chapter in NAFTA to protect local and Buy American provisions.87

Protect the rights of agricultural workers

While NAFTA does include a side agreement on labor, it has been unenforceable and ineffective in protecting workers. The immigration experience of NAFTA and increasingly draconian immigration policies have left the agribusiness sector deeply vulnerable to worker shortages, yet they remain largely unwilling to offer better working conditions. A new NAFTA must establish binding accords to protect farmworkers’ labor and human rights in all three countries. The AFL-CIO is calling for NAFTA to include collective bargaining rights and a strong minimum wage in all three countries—this could have major implications for food companies and particularly the meat processing industry which has almost no union membership in Mexico, and low union membership in U.S. poultry processing.88 The Trump administration’s NAFTA negotiating objectives do strive to move the labor agreements into the main text of the agreement, but otherwise repeat much of the language of past trade agreements that have been largely unenforceable.

Protect the right of governments to act on climate change

Climate change is already adversely affecting farmers and rural communities deeply connected to natural resource based economies in all three countries. Policies focused on addressing climate change are in place in all three countries – and more climate policies are in the process of being developed. While the Trump Administration has announced that it will withdraw from the Paris Climate Agreement, both Mexico and Canada remain part of the agreement. And many U.S. states and cities have announced their continued commitment to the Paris Agreement. Thus far, trade rules like those established in NAFTA have taken precedent over environmental and climate goals. Under a new NAFTA each country, state and local government should retain their sovereignty to enact and implement policies designed to reach their commitments under the Paris Climate Agreement.