FDA Regulation of Imported Foods in an Age of Globalization

Abstract

This essay will explore the intersection between the FDA’s regulation of imported foods and the United States’ obligations under the General Agreement on Tariffs and Trade (GATT) the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), and the Agreement on Technical Barriers to Trade (TBT Agreement), three of the foundational documents underlying the WTO system. I will argue that the FDA’s import regime violates US trade obligations both by virtue of its use of a different standard for denying imported food access to the US market than for determining whether domestically produced food is fit for consumption and by virtue of the relatively informal manner in which FDA is able to exercise virtually limitless statutory authority over imported foods. Additionally, the essentially ad hoc determination of what imported food is inspected or detained, while not necessarily inconsistent with the WTO regime, is susceptible to abuses that could give rise to trade complaints.