USTR: Why is Mexico violating the USMCA by restricting corn imports?

The United States Trade Representative (USTR) released its arguments as to why it believes Mexico is violating the USMCA by restricting certain imports of GM corn.

First, USTR says that Mexico violates Article 9.6.3 of the USMCA because it does not base its measures on relevant international standards, guidelines or recommendations or on an assessment, as appropriate to the circumstances, of the risk to human, animal or plant life or health.

It also argues that, contrary to the provisions of Article 9.6.6(a), Mexico fails to ensure that its measures are applied only to the extent necessary to protect human, animal or plant life or health.

In addition, according to USTR, Mexico violates Article 9.6.6(b) because it fails to ensure that its measures are based on relevant scientific principles, taking into account relevant factors.

USTR also refers to Article 9.6.8, because it considers that Mexico has failed to ensure that each risk assessment it conducts is appropriate to the circumstances and takes into account relevant guidance from the WTO Committee on Sanitary and Phytosanitary Measures (SPS) and relevant international standards, guidelines and recommendations.

Another Article that is violated is 9.6.10, because Mexico, according to USTR, failed to select an SPS measure that is no more trade-restrictive than required to achieve the level of protection that the Party has determined to be appropriate.

USTR

On February 13, 2023, Mexico issued the Decree establishing various actions regarding glyphosate and genetically modified corn (Maize Decree 2023).

The decree establishes the immediate prohibition of GM corn for nixtamalization or flour production.

This ban on GM corn for nixtamalization or flour production is reflected in the Maize 2023 Decree and Mexico’s legal regime governing the importation and sale of non-crop GM products.

Other arguments

From USTR’s perspective, this measure (the «Tortilla Corn Ban») appears to be inconsistent with the following provisions of the USMCA:

Article 9.6.3 because Mexico does not base its measure on relevant international standards, guidelines or recommendations or an appropriate risk assessment.

Article 9.6. 6 (a) because Mexico does not ensure that its measure is applied only to the extent necessary to protect human, animal or plant life or health.

Because Mexico fails to ensure that its measure is based on relevant scientific principles, taking into account relevant factors, contrary to Article 9.6.6(b).

To the extent that Mexico has conducted a risk assessment, Article 9.6.7 because Mexico did not conduct its risk assessment with respect to an SPS regulation in a manner that is documented and provides other Parties with an opportunity to comment.

To the extent that Mexico has conducted a risk assessment, Article 9.6.8 because Mexico has not ensured that each risk assessment it conducts is appropriate to the circumstances and takes into account the relevant guidance of the WTO SPS Committee and relevant international standards, guidelines and recommendations.

Article 9.6.10 because Mexico did not select an SPS measure no more trade restrictive than required to achieve the level of protection that the Party has determined to be appropriate.

Article 2.11 because Mexico adopts or maintains a prohibition or restriction on the importation of a good from another Party.