Over the past two decades, there has been a notable rise in the application of private standards in the agri-food trade. These standards are set by supermarkets, either individually, or collectively through organizations such as GlobalGAP, and often under pressure from civil society non-governmental organizations (NGOs).Footnote 1 They can incorporate standards for human, animal, and plant health that are more restrictive than the scientifically based standards recommended by international standardization bodies as the basis for governmental regulations and also incorporate standards relating to issues such as labor conditions, animal welfare, or environmental protection. Both types of standards challenge the World Trade Organization (WTO) rules governing food regulation, by being inconsistent with the principle underpinning the Agreement on Sanitary and Phytosanitary (SPS) measures that regulation should be based in sound science and not include considerations arising from ethics, values or other consumer concerns. In negotiations in the late 1980s and early 1990s, the European Union (EU) unsuccessfully pushed for the inclusion of ethical concerns in the SPS Agreement. While the private standards, of which there are 400 plus in operation (Stanton, Reference Stanton2012: 240), create barriers to market access, they are not driven by traditional protectionist concerns of vulnerable industries but by retailers on behalf of their customers, often supported by NGOs representing various public interests. These consumer-focused demands are a new phenomenon and not well-understood in trade policy analysis (Kerr, Reference Kerr2010).
Our analytical focus is on the SPS Agreement as this is the forum of the WTO in which the issue of private food standards is discussed, even though value-based standards would appear to fall under the Technical Barriers to Trade (TBT) Agreement.Footnote 2 However, the norm in the TBT Committee is not to discuss private standard schemes (personal conversation WTO official, September 2012). Discussion of the private food standards that are the subject of this paper have to date taken place in the SPS Committee.Footnote 3 So far, the political attention has attempted to focus on the non-science-based private standards for SPS measures (WTO, 2007a, 2009a, b), but the discussions have moved beyond these to include value-based standards (WTO, 2010b: 2 and 4). The discussion has been characterized by a blurred distinction between these two dimensions. Private food standards have become an issue for the SPS committee because these standards have become so pervasive that for many producers they are ‘voluntary’ in name only, as they ‘may be de facto applied as the industry norm by all actors in the supply chain’ (WTO, 2007a: 3). Fulponi’s (2006: 6) research suggests that between 75% and 100% of all food supplies are certified under private standard schemes – so the private arrangements thus work in much the same way as government sanitary and phytosanitary regulations behind the border, de facto by setting mandatory standards for suppliers into the agri-food chain. This has led a number of countries (particularly developing ones) to raise the issue in the WTO’s SPS Committee, where it has developed into a contentious matter discussed at every meeting since 2005 (WTO, 2012: 201, 211). Stanton (2012: 235) notes that it was the tiny Caribbean nation of St Vincent and the Grenadines that ‘triggered discussions at the WTO that have involved and divided more countries with respect to international food safety and health concerns than any other issue to date’.Footnote 4 The increased use of private food standards mirrors a trend in the global sphere where private voluntary codes are increasingly governing the behavior of businesses (see Vogel, Reference Vogel2007 for an overview).
A situation has thus arisen in which the institutions of international trade law and the reality of international trade in agri-food products are based on different value priorities. However, the new private food standards have not developed into a threat to the existence of the SPS Agreement by driving nations to reopen negotiations; rather they seem to supplement it and may have contributed to the latter’s persistence by reducing the pressure for renegotiation and change to its underlying values. The SPS Agreement appears to have benefited from the rise of these standards, which has allowed a ‘firewalling’ (Thacher and Rein, Reference Thacher and Rein2004) of competing values, thereby avoiding conflict through the existence of alternative institutional venues for their expression. This raises a number of interesting research questions relating to the co-existence of competing institutions, only some of which have been dealt with in the academic literature. Although the phenomenon analyzed here is not unique,Footnote 5 its theoretical treatment is incomplete. The puzzle that we explore in this paper relates to the relationship between institutions embodying competing values that not only co-exist, but also appear to support the continuation of one or both by deflecting value conflicts and thus delaying or perhaps preventing endogenous institutional change.
This paper focuses on answering the questions of how parallel institutions based on different values relate to each other and how that relationship may contribute to the continuing existence of one or both institutions. We propose the adoption of a concept, commensalism, which can assist in our understanding of the co-existence and persistence of institutions based on different values. Commensalism is originally a biological term describing a symbiotic relationship between two organisms of different species in which one derives some benefit while the other is unaffected. The term has been appropriated and adapted by the social sciences over some time; for example it appears in a 1931 list of a ‘working vocabulary of sociology’ (Eubank, Reference Eubank1931: 305). The concept has been applied to present a more nuanced picture of the relationship between individuals and groups (in human ecology) and between companies, unions and other organizations (in the administrative sciences and in organizational sociology). Thus, in the social sciences, the commensalistic concept now diverges somewhat from its original biological meaning. Hawley (Reference Hawley1950: 39) explains commensalism as a relationship in which individuals or species ‘make similar demands on the environment’ and in which there is an element of competition but also mutual benefits from co-existence (1950: 209).
This paper begins with a discussion of the institutionalist literature and develops our point about gaps in the literature relating to the role of institutions that exist alongside each other while embodying conflicting values. The case study is then introduced in support of our theoretical point. The paper concludes in a more speculative mood, considering the sustainability of these institutions and whether the ‘firewalling’ of conflicting values can continue indefinitely.
Institutional co-existence
International political economists have considered institutional complexity (Aggarwal, Reference Aggarwal1998; Alter and Meunier, Reference Alter and Meunier2006) and have developed concepts such as parallel, overlapping, and nested regimes (e.g. Alter and Meunier, Reference Alter and Meunier2009: 15) to describe various ways in which regimes (or institutions) relate to each other. Although the concept of parallel regimes is introduced, the literature neglects the question of values as a source of complementary or competing relationships between them and leaves the question of why parallel regimes based on competing values emerge and how they sustain or undermine each other largely unexplored. Similarly, the substantial literature on non-state market-driven governance systems (Cashore, Reference Cashore2002) has devoted limited attention to this value dimension of institutional relationships.
Historical institutionalism has proved able to provide convincing explanations of domestic political development (see e.g. Thelen and Longstreth, Reference Thelen and Longstreth1992; Thelen, Reference Thelen1999; Mahoney, Reference Mahoney2000; Pierson, Reference Pierson2000; Pierson and Skocpol, Reference Pierson and Skocpol2002; Streeck and Thelen, Reference Streeck and Thelen2005a; Hall, Reference Hall2010; Mahoney and Thelen, Reference Mahoney and Thelen2010). Although it has largely been neglected as an analytical framework in explanations of international political development it has the potential to contribute to this field of research (Fioretos, Reference Fioretos2011). It is worth noting that the term ‘institution’ is used quiet loosely in this literature. As Streeck and Thelen note, ‘Definitions of institutions abound’ (Streeck and Thelen, Reference Streeck and Thelen2005b: 9). They also suggest ‘that organizations come to be regarded as institutions to the extent that their existence and operation become in a specific way publicly guaranteed and privileged, by becoming backed up by societal norms and the enforcement capacities related to them’ (Streeck and Thelen, Reference Streeck and Thelen2005b: 12). On this basis, we regard the SPS Agreement and private food standards as institutions.
The historical institutionalism literature contains a convincing account of the rise and persistence of institutions, which embody particular value compromises reached at a particular point in time. Within the literature there are passing references to complementary institutions that emerge in response to a particular institutional arrangement. Institutions arising in the same policy sphere are seen as sharing values and objectives (e.g. Pierson, Reference Pierson2004: 27; Botterill, Reference Botterill2012). However, complementary institutions may not always be based on similar values. Crouch and Keune (Reference Crouch and Keune2005) direct attention to the co-existence of institutional arrangements based on apparently inconsistent logics that are sustained over a lengthy period. As they (Crouch and Keune, Reference Crouch and Keune2005: 99) note, ‘Complex social arrangements can tolerate a considerable amount of internal tension’. This observation leads them to ask ‘how is it possible for institutional heterogeneity to persist over time?’ To answer this question, they recommend that attention be given ‘to “insulation” mechanisms, sub-institutions, divisions of labor, which limit the antagonistic interaction of distinct parts’ and that efforts be made ‘to develop concepts and theories of these [mechanisms], what they might be, how they might operate’ (2005: 99–100).
While it is acknowledged in the literature that an institution forms part of a larger institutional environment (e.g. Pierson and Skocpol, Reference Pierson and Skocpol2002: 706–713; Orren and Skowronek, Reference Orren and Skowronek2004), those relationships have received relatively little attention. In this paper, we consider how the existence of institutions embodying conflicting values can be mutually reinforcing by deflecting value debates, debates that might otherwise threaten institutional survival, by ‘firewalling’ (Thacher and Rein, Reference Thacher and Rein2004) potential value conflicts. A key characteristic of the relationship we describe is that the institutions arise autonomously. Neither is created in response to the other; however, their existence provides opportunities for venue shopping by policy actors seeking to promote their values.
The literature on values in the policy process provides useful insights into the co-existence of parallel institutional arrangements. The concept of values is used here to encompass principles or standards about what is important; values are inherently normative, which distinguishes them from ideas of a narrative nature linking events in causal order, providing meaning to certain situations (Blyth, Reference Blyth2002). If one accepts the common interpretation of Easton’s (Reference Easton1953: 129) construction of politics as the ‘authoritative allocation of values’, institutions can be regarded as a concrete result of a particular value allocation or as the embodiment of a value compromise reached at a particular point in time.Footnote 6
Thacher and Rein’s (Reference Thacher and Rein2004) concept of firewalls allowing value conflicts to be avoided through institutional separation can help us understand how parallel institutions founded upon conflicting values can be sustained over time and avoid being entangled in institutional battles. Under this model, policy-makers quarantine incompatible or conflicting values by addressing them separately, often in different institutions. As Thacher and Rein (Reference Thacher and Rein2004: 469–470) point out:
By focusing the attention of each institution on a subset of the values that ultimately matter to public policy, it is possible to simplify the task of practice and keep the pathologies of value conflict at bay. That arrangement helps to ensure that each value has a committed defender.
As described by Thacher and Rein, the establishment of such institutional firewalls is a deliberate political strategy; however, it can also be an unintended consequence beyond the control of institutional designers. Alternative institutions may be formed by private sector actors representing values that are unrepresented in existing institutional arrangements or, as in our case study, they may arise for unrelated reasons but then provide a mechanism for particular values overlooked elsewhere to find a voice. We argue that the existence of these parallel institutions may shield other institutions from internal value conflicts since those actors holding alternative values are likely to redirect their attention and efforts to the parallel institution. This reduces pressure on each institution to engage in transformation processes that may threaten its persistence.
The concept of commensalism is proposed as a metaphor for this somewhat peculiar relationship that allows incompatible value systems to survive in parallel institutions in the same policy space and by their very existence to support the survival of their competitors. Commensalism differs from what Streeck and Thelen characterize as layering, which allows the ‘active sponsorship of amendments, additions, or revisions to an existing set of institutions’ (Streeck and Thelen, Reference Streeck and Thelen2005b: 23) in a way that does not undermine them. Pierson (Reference Pierson2004: 137) has suggested that layering can ‘involve the creation of “parallel” or potentially “subversive” institutional tracks’. He argues that ‘Reformers lacking the capacities to overturn existing institutional arrangements may try to nurture new ones, in the hope that they over time will be able to assume more and more prominence’. We argue that this is conceptually different from amending existing institutions through layering and the term commensalism can be useful in making the distinction. In a commensalistic relationship the parallel institution emerges autonomously from the primary institution to embody values excluded by the latter, not as an add-on to the primary institution in an attempt to reform or change its purpose. As Streeck and Thelen note, in the case of layering, ‘new dynamics are set in motion by political actors working on the margins by introducing amendments that can initially be ‘sold’ as refinements of or correctives to existing institutions’ (Streeck and Thelen, Reference Streeck and Thelen2005b: 23 – our italics). The relationship we describe is more independent than this implies, and does not necessarily occur sequentially. Commensalism also differs from the ‘layering of rules’ described by Bartley (Reference Bartley2011) in which transnational private standards are overlaid and interact with national, domestic regulatory systems. In a commensalistic relationship, there is an element of competition but also of mutual benefit from the coexistence of the institutions and it is the latter characteristic that, we argue, is its defining element.
Case study: parallel institutional arrangements in the agri-food chain
In this section, we analyze the relationship between the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), an intergovernmental agreement within the WTO, and global private food standards schemes, focusing on GlobalGAP, which is the dominant player. The case study is based on reviews of the literature across a range of relevant disciplines and of WTO and GATT (General Agreement on Tariffs and Trade) documents. In addition, semi-structured interviews were undertaken in February and March 2010 with representatives of farm groups in the United Kingdom and Europe; Assured Food Standards in the United Kingdom; WTO officials; officials at the European Commission; representatives of the Eurogroup for Animals; and an industry representative in the horticulture industry in Europe. These interviews were digitally recorded to ensure comprehensive review and accurate reporting of the material. Some of the interviewees preferred not to be identified directly and this has been respected in the reporting of their comments.
The WTO and Food Regulation
The basic idea behind the SPS agreement was to create a level playing field for trade in food, and to prevent WTO member states from using domestic food safety and animal and plant health legislation as technical barriers to trade. The SPS negotiations were an integral part of the package of agreements negotiated and agreed as a single undertaking in the Uruguay Round of multilateral trade negotiations. The existing Article XX(b) of the GATT had allowed countries to regulate to protect human, animal, and plant life and health but it did not provide any enforceable disciplines on such measures to prevent countries from using these regulations to restrict trade. The Standards Code, which was concluded among the United States, the EU and about 20 other GATT member states during the Tokyo Round (1973–79) (Swinbank, Reference Swinbank1999: 324) proved unsuccessful in disciplining domestic sanitary and phyto-sanitary regulations in food trade (Bredahl and Forsythe, Reference Bredahl and Forsythe1989: 190).
During the Uruguay Round negotiations, there was broad support from the EU and those developing countries actively engaging in the negotiations for a US proposal on international institutionalized standardization as a basic provision of the SPS Agreement. In principle agreement on this aspect of the SPS Agreement was thus reached relatively early, in November 1988 (Büthe, Reference Büthe2008: 243–244). The text (GATT, 1990b) was all but settled by November 1990 (Interview, WTO Officials, March 2010) and was circulated as part of the so-called Dunkel text in December 1990 (GATT, 1990a). The November text included a preamble, which noted that the bracketed (un-agreed) sections were ‘linked to the question of whether or not this agreement should apply to measures taken for the protection of animal welfare and of the environment, as well as of consumer interests and concerns’ (GATT, 1990b). As early as the second meeting of the SPS Working Group set up under the Agriculture Negotiating Group in the Uruguay Round, a participant was raising the issue of encompassing ‘certain restrictions or prohibitions, … which were not based on scientific evidence, but on ethical considerations’ (GATT Secretariat, 1988: 3) and by the fourth meeting of the SPS Working Group the Chairman was reporting discussions of ‘regulations based on production and processing methods (PPMs) rather than on product characteristics, and the inclusion of moral or quality assurance concerns’ (GATT Secretariat, 1989: 1). Although EU negotiators reportedly wanted additional consumer concerns, such as the environment and animal welfare, included in the Agreement (Skogstad, Reference Skogstad2003: 115–116; Winham, Reference Winham2003: 137), they did not appear to push the issue. These concerns were mostly raised by the Nordic countries in formal submissions. In March 1990, the Secretariat (GATT, 1990b) noted in a summary of the various proposals under consideration that ‘Measures relating to quality assurance, composition and grading, consumer preferences, consumer information, animal welfare and ethical and moral considerations shall not be dealt with’ in the context of the SPS Agreement. These issues were dropped from the final SPS Agreement.
Although value-based consumer concerns were of particular interest to the EU, the Commission Delegation did not produce a specific text for incorporation into the SPS Agreement (Skogstad, Reference Skogstad2003: 116; Interview, WTO Officials, March 2010). Considering that the EU was already entangled in a trade dispute with the United States over beef hormones (Skogstad, Reference Skogstad2003: 144), it seems to be a bit of paradox that the EU gave in on this issue. Skogstad (2003: 118) argues that political attention in the EU was on the Agricultural Agreement, and that the negotiations on the SPS Agreement were left to trade diplomats. Faced with strong United States and Cairns Group opposition to the inclusion of value-based consumer concerns in the Agreement, it appears that the EU negotiators decided to settle for an agreement, which, after all, would be a major improvement in relation to the rules in the GATT, article XX(b).
The outcome of the negotiation was an SPS Agreement ‘Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health’ (WTO, 1998, preamble), ‘provided that such measures are not inconsistent with the provisions of … [the] Agreement’ (WTO, 1998, art. 2). The purpose of the Agreement is to ensure that SPS measures are not applied as disguised restrictions to international trade (WTO, 1998, preamble). This is to be achieved by science-based risk management, harmonization of standards and equivalence. Article 2 of the agreement states that ‘Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence’ (WTO, 1998, art. 2).Footnote 7 With respect to harmonization, the Agreement urges – but does not require – countries to apply international standards in their domestic legislation related to food trade where they exist, and the Agreement refers to three international standardization bodies such as the Codex Alimentarius Commission. Footnote 8 If domestic standards comply with the international standards of these bodies, they are WTO compatible. Countries are allowed to introduce higher domestic standards if they can be scientifically justified (article 3). Equivalence means that importers must accept the standards of the exporting countries if the latter can demonstrate that they are equivalent to the importer’s standard (WTO, 1998, art. 4).
As Wouters et al. (Reference Wouters, Marx and Hachez2012: 263) note, ‘the SPS Agreement is, in conformity with the mission statement of the WTO, a trade agreement, and not a food safety agreement’. Neither does it ‘provide for the criteria other than scientific procedures that the EU wished to introduce into risk assessment’(Winham, Reference Winham2003: 138). Trade diplomats focused on creating a level playing field in food trade. Domestic regulations related to trade in food were seen by food exporters as a potential loophole for escaping increased market access for agricultural produce, which was envisaged as the outcome of the negotiations on the Agreement on Agriculture (Bredahl and Forsythe, Reference Bredahl and Forsythe1989: 190; Daugbjerg and Swinbank, Reference Daugbjerg and Swinbank2009).
In parallel with the negotiation of the SPS Agreement, a series of events triggered changes in the broader policy context within which food safety and animal and plant health was considered and opened up an alternative avenue for advocates of consumer values to pursue their goals. In these events, first retailers and subsequently NGOs representing consumer, animal rights, environmental and labor interests emerged as the key players.
The rise of global private food standards
During the 1990s, there was a series of food safety scares in Europe. These sparked the emergence of parallel institutional arrangements around food standards in the private sphere, and the consequent adoption of standards that were frequently based on non-scientific risk assessment and ethical values. The highest profile scandal was the outbreak of ‘mad cow disease’ (bovine spongiform encephalopathy – or BSE) in the United Kingdom. Around the same time, the UK government implemented a fundamental change to its food safety legislation with the passing of the 1990 Food Standards Act. This legislation shifted the responsibility for food safety by requiring supermarkets to exercise ‘due diligence’ in ensuring the food they stocked was safe, rather than simply relying on warranties from suppliers (Henson and Caswell, Reference Henson and Caswell1999; Interview, ASF Official, February 2010). The ‘privatising’ (Ménard and Valceschini, Reference Ménard and Valceschini2005: 433) of food safety, which was consistent with prevailing neoliberal approaches to government, put pressure on the supermarket chains to strengthen their control of food production processes. As Marsden et al. (Reference Marsden, Lee, Flynn and Thankappan2010: 139) argue, the changes to the UK legislation resulted in ‘leaving the state to act mainly as auditors rather than standard-setters and enforcers of the mainstream process’.
The developments in food safety regulation coincided with an important trend in supermarket food retailing: the rise of the high-end home brand. Though home branding has a long history, there was an increase in the 1970s in the form of plain packaged, generic foods, which competed at the low price end of the market for basic foodstuffs. In the 1990s, a new form of own-branding emerged at the other end of the market. In a highly competitive environment in which profit margins were very thin, supermarkets turned their attention to meeting the demands of wealthier consumers for fresh, novel, and convenient foods, such as ready-to-eat gourmet meals (Burch and Lawrence, Reference Burch and Lawrence2005). Moving into these areas of food marketing and linking this to premium home branding provided supermarkets with a means for taking control of the value chain. However, the adoption of premium home branding exposed supermarkets to significant risk if a product in their line was the subject of a food scare, due to the potential for the whole brand to be damaged. In 1998, own-branded products accounted for ‘around 62% of new product launches’ (Henson and Northen, Reference Henson and Northen1998) – a figure that is likely to have grown over time. The integrity of these brands is therefore of critical importance to the retailers.
While retailers have clearly reacted to changing legislative obligations as well as the needs of brand protection, they have also seen standards as a means of competitive differentiation in the marketplace (Fulponi, Reference Fulponi2006: 6). Supermarkets increasingly view agri-food standards as strategic business tools, ‘whether it is to gain access to new markets, to coordinate their operations, to produce quality and safety assurance to their consumers, to complement their brands, or to define niche products and markets’ (Hatanaka et al., Reference Hatanaka, Bain and Busch2005: 356). As one of our interviewees argued: ‘quite often you see retailers acting as spokesperson for consumers when they are really not’ (Interview, farmer organization, March 2010).
The agri-food industry responded to the changes to the UK legislation and the food scares by establishing a series of food assurance standards across almost every sector of the industry, aimed at restoring consumer confidence in the food chain. One of our interviewees argued that the changes to the UK legislation were ‘almost as important in creating these self-regulatory schemes as the [food] crisis management. I think the two of them went hand-in-glove’ (Interview, ASF Official, February 2010). Although the schemes were initially developed by individual supermarkets, producers recognized the risk of the proliferation of an array of potentially inconsistent standards and audit requirements. This resulted in the push for a single national scheme in the United Kingdom to ‘corral all of the retailers and other buyers’ to offer one inspection and one assurance certificate (Interview, ASF Official, February 2010). This culminated in the creation of Assured Food Standards, a non-profit company limited by guarantee, governed by a body comprising all stages of the food production chain, and owner of the Red Tractor assurance logo. Around the same time and independent of developments in the United Kingdom, a group of supermarkets, food retailers, NGOs, consumer groups, and others in Europe formed EUREP (The Euro Retailer Produce Working Group) in 1997. EUREP established a system of Good Agricultural Practice (EurepGAP), which went beyond simple food safety concerns to include protocols for sustainable food production.
The growth of home branding, combined with the normative and consumer-focused element of EurepGAP, opened the supermarkets up to a further challenge from civil society groups with an interest in promoting corporate social responsibility (Hatanaka et al., Reference Hatanaka, Bain and Busch2005: 364). While supermarkets were reducing the chances that their brands would be threatened by a food safety scare by increasing their control over the supply chain, they remained vulnerable to campaigns on issues such as the environmental impact of the producers who supplied them. Supermarkets agreed to cooperate with NGOs ‘to assure a fairer as well as cleaner food supply’ (Freidberg, Reference Freidberg2007: 324), resulting in the inclusion in EurepGAP of concerns broader than product safety. NGOs took advantage of the supermarkets’ vulnerability with respect to brand protection to argue that consumer concerns about food production were broader than just the actual biological safety of the food they purchased. In 2007, EurepGAP became GlobalGAP and further expanded its membership and the commodities covered by its standards. GlobalGAP contains a strong normative element in its concept of ‘Good Agricultural Policy’ and the norms embedded in the standards are very clearly Euro-centric.
For the reasons described above, the private standards have incorporated elements that would not have been allowable under the SPS Agreement had they been introduced by national government signatories to the agreement. First, in relation to sanitary and phytosanitary standards, the private standards schemes often do not apply international standards established upon the basis of scientific risk assessment but apply stricter standards (WTO, 2009a: 24–25; WTO, 2010b: 6), often set arbitrarily and for marketing purposes (Interview, farm group officials, March 2010). Second, a number of standards are based on value-based consumer preferences in areas such as animal welfare, labor standards, and environmental management. GlobalGAP has picked up many of these issues and they are now, by virtue of the reach of GlobalGAP’s members, de facto standards for many producers.
In summary, though initially retailer-driven, the private food standards schemes increasingly incorporated broader consumer values that had been excluded from the SPS Agreement. A driving force in this process was the engagement of NGOs in the design of the schemes. For the purposes of our argument, it is crucial to note that the trigger for the development of these private standards was not the SPS Agreement but other legislative and commercial pressures on food retailers. However, once established, the private standards provided an opportunity for values watchdogs that had been unsuccessful in furthering their goals and protecting their interests through the multilateral trade negotiations. This is quite distinct from the layering concept in the present institutionalist literature, as the private standards were not set up in response to the SPS Agreement, nor were they a purposive development aimed at shifting the values that Agreement embodies.
The supportive role of commensalistic institutions
To establish whether the relationship between the SPS Agreement and the global private food standards schemes is commensalistic, it must be demonstrated that the institutional separation of values has prevented value conflict from being reopened in relation to the SPS Agreement. The concept of commensalism as defined in this paper makes it clear that the supportive nature of the relationship can be one way.
We argue that the rise of private standards schemes has played a part in sustaining the SPS Agreement. The SPS Agreement has been in place now for the best part of two decades and, as Wouters et al. (Reference Wouters, Marx and Hachez2012: 256) point out, at the time of its negotiation ‘private standards had not yet invaded the food chain’. It was not opened for negotiation in the current, ongoing Doha Round, and there is no sign that WTO member states wish to reopen it in the near future. The Agreement itself is quite brief, so inevitably the SPS Committee has needed to clarify elements as it has been implemented; this is partly achieved through meetings of the SPS Committee, which considers ‘contentious SPS issues on an ongoing basis’ (Josling et al., Reference Josling, Roberts and Orden2004: 41). A 2005 review of the operation of the SPS Agreement (WTO, 2005) indicated that the values underpinning the Agreement have not been challenged by governments. It states that ‘To date, no Member has proposed changes to the basic provisions of the SPS Agreement, or questioned its science-based requirements, the encouragement of harmonization with international standards, or the obligations for transparency’ (WTO, 2005: 2). It was explained to us that there had been some discussion in the lead up to the current Doha Round of negotiations about opening up the SPS Agreement for discussion, however:
There really was just not agreement among members as to whether they needed to open it up and if they were to open it up what they wanted to do with it and the problem is that what they wanted to do with it at best was going in opposite ways. So I think it was sort of ‘we don’t open Pandora’s box for the time being’ (Interview, WTO Officials, March 2010)
A report for the UK government circulated in the SPS Committee in 2007 noted that ‘Since the Agreement is regarded by the great majority of WTO members as robust and effective, many would likely oppose re-negotiation in case the disciplines of the SPS Agreement might be weakened’ (WTO, 2007b: 28).
Reopening the SPS Agreement to strengthen the WTO’s role in the area of the broader issues being covered by private standards would be a high-risk strategy. Not all signatories to the SPS Agreement are so sanguine about the emergence of private standards and the inability of the SPS Committee to address these issues. Some developing countries, particularly in Latin America, were described as being ‘vociferous’ in their criticism of these standards. For instance at the SPS Committee meeting in February 2009, the Brazilian representative summarized the Latin American view quite clearly, saying that ‘private standards represented higher costs for trade, a divergence from international standards, and confusion for exporters’ (WTO, 2009b: 26). Therefore, they want governments to take action against the private schemes’ lack of compliance with international standards (Stanton, 2012: 243).
As the concept of commensalism suggests, the private standards can serve to provide those actors holding values not promoted by the SPS Agreement with an alternative avenue for their expression and thus contribute to the persistence of the SPS Agreement. Several of our interviewees emphasized that private standards were responding to consumer demand for ethically produced food and that there was a general will to purchase products with ‘a good conscience’ (Interview, horticulture importer, February 2010).
From the perspective of NGOs, the private arrangements provide a welcome alternative venue for pursuing their goals. Our interviewees at the Eurogroup for Animals, for example, indicated that they see private standards as:
a good strategic way of moving policies and activities within the food sector because private companies can agree and implement animal welfare standards much quicker and more efficiently compared to the regulatory approach (Interview, March 2010).
It was clear that this was a deliberate strategy for working both with GlobalGAP and with retailers to promote the organization’s values. They noted that GlobalGAP embedded more elements of animal welfare than most schemes and that the Eurogroup had been invited to work with GlobalGAP to improve these components of its standards, indicating active NGO engagement in standard-setting. A respondent from the WTO went so far as to suggest that it was not in the interests of the animal welfare NGOs to include animal welfare in the SPS agreement because of the requirements of that agreement for scientifically based evidence to underpin any restrictions. Our interviewee suggested that the conversations they had held with animal welfare NGOs indicated that, after initially hoping to persuade governments to incorporate animal welfare into the SPS Agreement, these groups have come to the view that they are actually better off pursuing their goals through private standards rather than through national governments (Interview, March 2010). The WWF has adopted a similar strategy in which the organization works with private actors in the supply chain and NGOs to set standards, arguing that ‘companies can push producers faster than consumers can. By companies asking for this [sustainable products], we can leverage [sustainable] production so much faster than by waiting for consumers to do it’ (Jason Clay, WWF at TED).Footnote 9 This finding is not new. Citing a range of studies, Hatanaka and Busch (Reference Hatanaka and Busch2008: 77) describe the emergence of ‘alternative agri-food networks’ emerging ‘around issues ranging from human rights to animal welfare, and environmental protection to farm-worker wages’. In these networks, they argue, ‘activist NGOs have found private standards to be useful tools’ for pursuing their goals. Vogel (Reference Vogel2007: 267) notes the use of ‘civil regulation’ by activist NGOs as an ‘effective, albeit a second-best, strategy’ for achieving their goals. Likewise, in his work on forest certification and labor standards, Bartley (Reference Bartley2003: 454) describes NGOs who, having failed to achieve their goals in intergovernmental arenas, ‘tended to shift their energies and resources toward private alternatives’.Footnote 10 This focus of the NGOs on private rather than intergovernmental food standards has lessened the pressure on the SPS Agreement and contributed to its persistence.
It is not only retailers and NGOs who have pursued ‘consumer concerns’ in relation to global food trade. In the post-Uruguay Round period, such concerns were still important for the EU as demonstrated by the longstanding beef hormone and GMO disputes in the WTO that developed into highly contested trans-Atlantic trade conflicts. In both cases, the EU had banned imports on the basis of consumer concerns (Winham, Reference Winham2009: 411–412; Young, Reference Young2009: 677–678). More generally, European consumer concerns about animal welfare, labor standards, and other value-based issues did not go away. Because of this, the EU attempted to have the SPS Agreement renegotiated in the ill-fated Millennium Round ‘To ensure fair participation of all interested parties, including consumers, in the decision-making process of establishing international standards’ and ‘To clarify and strengthen the existing WTO framework for the use of the precautionary principle in the area of food safety’ (Commission of the European Communities, 1999: 18). In the Doha Round, the EU again tried to put the issue on the agenda by attempting to persuade the other WTO members to adopt an ‘authoritative interpretation’, which would include animal welfare as a legitimate concern under the TBT Agreement, but received little support for this (Swinbank, Reference Swinbank2006).
Having failed to re-open the SPS Agreement to lessen the scientific requirements and include value-based concerns, private standards seem to be a not-unwelcome development for the EU. Rather than preventing the emergence of private food standards schemes, the EU appears to be facilitating such a development. This inevitably lessens the pressure from NGOs on the EU to pursue their interests in the WTO. Our interviews indicated that the main concern for the Commission is that any private certification schemes remain compliant with EU regulation. In 2007 the European Commission issued a Green Paper that noted that private business-to-business certification schemes, such as GlobalGAP, were ‘quickly becoming de facto industry standards’ to the point where they ‘may sometimes no longer be called voluntary’ (DG Agriculture and Rural Development, 2008: 13). In 2009, the Commission released a Communication to the Council of Ministers (Commission of the European Communities, 2009) that set out strategic orientations for certification schemes and in December 2010 the Commission issued non-binding guidelines for private certification schemes:
to describe the existing legal framework and to help improving [sic] the transparency, credibility and effectiveness of voluntary certification schemes and ensuring that they do not conflict with regulatory requirements. They highlight best practice in the operation of such schemes (EU, 2010: C 341/6).
Existing research contains other examples of government ‘endorsement’ of private standards when intergovernmental options for pursuing certain values have failed (Bartley, Reference Bartley2003: 455).
Our findings indicate that private standard schemes are effectively insulating the SPS Agreement from a reopening of the debate over consumer concerns such as animal welfare, labor standards, etc., by ‘firewalling’ these competing values and providing them with an alternative institutional arrangement through which actors holding broader ethical values can voice their concerns. As the NGOs move their attention to private standards, they are reducing pressure on governments (and the EU) to seek to reopen the values debate in relation to the SPS Agreement in the WTO. The concept of commensalism suggests that institutional stability can be the result of the exploitation of alternative institutional arrangements by values watchdogs to promote and protect values that might otherwise threaten the survival of another institution in the same policy space. If an institution is resistant to promoting the values of citizens and civil society groups, the latter do not need to pressure their governments to reopen and renegotiate hard fought battles, they can take advantage of the existence of an alternative institutional arrangement through which they can pursue their goals.
Conclusions
The rise of GlobalGAP and similar private regulatory structures in the agri-food chain provides a useful case study to illustrate our contention that institutional survival can be the result of the existence of an independent, parallel institution that embodies a competing set of values. We believe that while this relationship has been described to some extent in the literature through the concept of layering, an important feature has been overlooked. When values watchdogs are unable to pursue their goals through one institution, they seek out alternative venues. This is uncontroversial. However, what has been missed is the potential for the expression of alternative values through another institution to remove the need for institutional change and adaptation as values conflicts that might have arisen are no longer necessary. In this paper, we have argued that institutional survival can be enhanced by the co-existence of commensalistic institutions embodying conflicting values, thereby insulating one or both institutions from a potentially damaging reopening of their underpinning value compromise. Drawing on the institutionalist literature, we have proposed a framework for analyzing parallel institutions that operate in the same policy space and that promote values excluded from consideration in other institutions in the same policy space. We have outlined how the rise of private standards in the agri-food trade has addressed values that would be inconsistent with the underpinning rationale of the SPS Agreement and has provided retailers, NGOs, and other actors with an interest in the promotion of broader value-based issues, with an alternative venue for pursuing their objectives, thereby reducing pressure on the SPS Agreement to be reopened.
An important question, remaining unanswered in our research, is whether these arrangements are politically and institutionally sustainable in the long run. Wouters et al. (Reference Wouters, Marx and Hachez2012: 272) argue that:
The growing pervasiveness of private standards in the face of the repeated assertions that they run counter to the liberalization and harmonization objectives of the SPS Agreement arguably challenges the suitability and relevance of the latter in addressing trade-offs that now exist between food safety issues and free trade objectives.
Firewalling in the form of commensalistic institutional arrangements is probably not a sustainable long-term solution to these value conflicts because:
In reality … institutions can rarely insulate themselves permanently from the values they try to shed … One reason for this is that over time, different institutions interact with one another, and the separated system may lose its pure lines of institutional demarcation (Thacher and Rein, Reference Thacher and Rein2004: 472–473).
When commensalistic institutions adjust, even marginally, institutional boundaries may change as each incorporates aspects of values pursued by the other, causing conflict or overlap between institutional jurisdictions. Another source of tension between commensalistic institutional arrangements is if one of the institutions becomes too successful. As Crouch and Keune’s (Reference Crouch and Keune2005) work suggests, ‘subsidiary’ organizations may move to a dominant role in the policy space. Hence, ‘they may fundamentally alter the overall trajectory of development as the old institutions stagnate or lose their grip and the new ones assume an ever more prominent role in governing individual behaviour’ (Streeck and Thelen, Reference Streeck and Thelen2005b: 23). In such situations they may undermine the core values of the former, reopening the original value conflict and leading to the breakdown of one or the other institution, or of both.
The blurring of boundaries between institutions is not implausible in the case of many global private governance arrangements and thus they may be susceptible to instability. Henson and Humphrey (Reference Henson and Humphrey2010: 1640) note the ‘progressive overlapping and interlinkage of public and private standards regimes’ and that ‘public agencies and private standards may become more intertwined’ (2010: 1641). They need to gain legitimacy among the major stakeholders, including NGOs. One important source of legitimacy is to ensure that their standards reflect broader societal norms and that they can continue in their self-appointed role as the representatives of consumer values.
The blurring of public and private standards potentially brings these measures under the purview of the WTO if the state is de facto using these standards to achieve its regulatory goals. Hence, states adopting global private standards in their domestic policies become open to legal challenge in the WTO Dispute Settlement System by states representing producers losing market access as a result of the use of private standards. Since the SPS Agreement urges states to apply international standards, governments applying private standards must convincingly argue that the private standardization bodies meet the criteria of the WTO to be considered relevant international standards.
Henson and Humphrey (2010: 1643) note the ‘profound implications’ that the rise of private standards has for institutions such as the WTO and point to the ‘parallel (although interconnected) governance processes’ at play. We argue that these parallel processes are currently providing an institutional environment that allows for potentially conflicting values to be accommodated in the governance of agri-food systems – up to a point. If a substantial number of governments adopt global private standards to respond to pressure from stakeholders, the intergovernmental institutions will be undermined and the agreements underpinning them will need to be reopened for negotiation to re-establish their global authority. Our research has demonstrated the analytical utility of the concept of commensalism in explaining institutional persistence, but more research is needed to establish the long-term sustainability of institutional persistence based on the existence of commensalistic institutional arrangements.
Acknowledgments
The authors thank three anonymous reviewers of this journal, John Ravenhill, Adrian Kay, Alan Swinbank, Aynsley Kellow, Emanuela Bozzini, and Alan Fenna for comments on earlier drafts of this paper. They thank the Australian Research Council’s Linkage Projects funding scheme (project number LP0990000) and the Danish Council for Independent Research (Social Sciences) for supporting research for this paper.
