David M. Nelson


The first part of this note will define administrative and technical regulations and discuss recent trends toward these regulations in the European Community. The second part will concentrate on protectionism and analyze the negative effects of protectionism on consumers and producers. This part will set forth four arguments against protectionism. These four rationales can be divided into: (1) economic rationale; (2) retaliation rationale; (3) legitimacy of international law; and (4) purpose of the World Trade Organization (WTO). Part three will examine the current legal atmosphere surrounding health and safety regulations. This part will examine the Agreement on Sanitary and Phytosanitary Measures (hereinafter SPS Agreement), and the Agreement on Technical Barriers to Trade, (hereinafter TBT Agreement). Part four will address health and safety regulations adopted by the European Union. This part will discuss four of the major directives that have been put in place. These four directives are: Council Directive 90/220/EEC, Commission Directive 97/35/EC, the Novel Foods Regulation (EC) No. 258/97 and Directive 88/146/EEC. Part five of this note will analyze the current standards used under the SPS Agreement and then look at the standards under the TBT Agreement. Part six will review the U.S. Supreme Court's dormant commerce clause jurisprudence and articulate a new standard to be used when analyzing protectionist policies in the area of international trade. Part seven will apply the newly articulated test to the EU directives.



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