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"International Law Trumps Domestic Law" by Scott Tips
The following article originally was published in the January 2001 issue of Whole Foods Magazine. It is a tragic commentary on the American media that the extraordinary event of which you are about to read has to come to your attention first, not through a local or major national newspaper or through the television news, but instead courtesy of Whole Foods, a monthly industry magazine. We are so inundated with "news" wherever we turn that we can easily delude ourselves into thinking that we are well-informed about all newsworthy events. Unfortunately, as I hope you have noticed, the news is so selected and so filtered by the time it is slickly offered to you - like so much processed, plastic-wrapped cheese - that it rarely resembles reality. When you have the chance to compare, for instance, European reporting upon American news events with American reporting on American news events, you notice a difference that is at times remarkable. Truly important news goes unreported more often than you would suspect. The extraordinary event alluded to above is that, for the first time in American history, the United States Congress voted to change a domestic law because we were told to do so by an international body. Considered "unthinkable" only a few months before, and despite clear constitutional prohibitions against its actions, Congress knuckled under to the World Trade Organization's (WTO's) dictate that the United States must change its tax laws governing foreign sales corporations. In particular, the WTO objected to the fact that U.S. tax law exempted from the income tax a small portion of income earned abroad by U.S. corporations. WTO called this a "subsidy," even though most European countries do not tax their own corporations on any income they earn abroad. The WTO handed the U.S. an ultimatum to change this law by October 1, 2000, or else. How We Joined the WTO For those of you not familiar with the World Trade Organization, it is an international bureaucratic body established to "manage" international trade. In December 1994, in its twilight hours and in the wake of the sweeping Republican congressional victories that would soon hand control of Congress over to the Republicans, a lame-duck United States Congress voted to have the United States join the WTO. Both the Republican and Democratic party leaders cooperated to quickly push this legislation through with little discussion before "fresh faces" could take office and possibly derail the process. Nearly six years later, we are truly historical witnesses to the inevitable logic of that WTO membership. During its final days, the 106th Congress has voted to change American tax laws to comply with WTO's bureaucratic dictates. The significance of this action to you, the reader, a member of the natural products industry, is far more important than that a single section of the U.S. Tax Code was changed. Even those who were confused by the ballots in Florida's Palm Beach County can figure this one out. We are looking at the legislative equivalent of the visible party line, or the camel's nose in the tent. For all too long you and I have heard from all quarters how the Codex Alimentarius Commission, or Codex, will not have any impact upon U.S. domestic laws governing dietary supplements, especially the Dietary Supplement and Education Act of 1994 (DSHEA). Even members of our own industry have reassured us that Codex will not impact domestic laws such as DSHEA. Others have disagreed. Now, we have the evidence. If the WTO can dictate domestic changes in our tax laws, then you can be absolutely certain that all of our legislation is vulnerable to international dictates. The precedent has been established and will continue to be reinforced in the future. Eventually, we will all forget how laws used to be made and come to think that non-democratic WTO and other international-body dictates are normal. Not only environmental, labor, and tax laws, but food, dietary supplement and other domestic American laws will be increasingly subject to international review and revision. Unfortunately, few outside the United States are as receptive to consumer freedom of choice as are we, so you can also be certain that our single vote in these international bodies will not count for much. Welcome to the future. It's just a shame that you can only read about it here.
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Scott C. Tips offers general legal services focusing on food-and-drug law, trademark law, contracts, and business litigation. Scott is a Magna Cum Laude graduate of the University of California at Los Angeles and a graduate of the Boalt Hall School of Law at the University of California at Berkeley. He also attended the Sorbonne in Paris. After graduating from law school in 1980, Scott worked for various respected law firms before starting his own firm. He is General Counsel for the National Health Federation and his articles appear regularly in the Whole Foods Magazine. You can contact Scott at 415-296-7003. |