CODEX Paper .. by David Jukes

Department of Food and Nutritional Sciences, The University of Reading, UK
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The Codex Alimentarius Commission - Current Status

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This is a copy of a paper by David Jukes which was first published in Food Science and Technology Today, December 1998.

Summary

The Codex Alimentarius is the international body established by the FAO and the WHO to develop international food standards. Its key role in this was recognised when the World Trade Organisation was set up in 1995. The WTO Agreements accept that the standards developed by Codex should be regarded as providing countries with necessary protection. Higher levels of protection can be established but have to be justified on the basis of sound science and the use of appropriate risk assessment techniques. This status has raised the profile of the activities of the Codex. Although this could be seen as a positive step, it has already led to an erosion of the usual practice of reaching agreement by consensus - ballots have recently been taken at meetings of the Commission.

The Codex Alimentarius Commission

The Codex Alimentarius Commission (CAC) is the main international body concerned with the setting of international food standards. The body was established in 1962 and is jointly funded by the Food and Agriculture Organization (FAO) and the World Health Organisation (WHO) - currently 75% FAO, 25% WHO. The secretariat of the CAC is based at the headquarters of the FAO in Rome.

Membership is open to any country which is a member of the FAO or WHO and currently numbers 162. Other bodies can have observer status. Membership confers no obligations on countries but enables them to contribute to the development of standards and to have their point of view taken into account. Full details of the organisation’s statutes, rules, procedures and membership are contained in it’s Procedural Manual [1].

The full Commission meets every two years in either Rome or Geneva. The last meeting, the 22nd, was held in June 1997. Between sessions, an Executive Committee which usually meets once every year is able to act on behalf of the Commission. However most of the detailed preparatory work takes place in various Committees (termed ‘Subsidiary Bodies’). There are three main groups of subsidiary bodies: World Wide General Subject Committees, World Wide Commodity Committees, Regional Coordinating Committees (see Table 1)

The Committees are hosted by various nominated countries and invitations to attend are extended to all Codex member countries (i.e. the committees are not restricted to selected countries). The Committees can meet once each year although many only meet once every two years and some have completed their current work and have been adjourned sine die.

There is a specified ‘stepwise’ approach to the adoption of standards. This is laid down in the rules of procedure and summarised in the attached diagram (Figure 1). The procedure can take some considerable time (typically 5-8 years). When a matter is regarded as of some urgency as a result of, for example, ‘new scientific information; new technology(ies); urgent problems related to trade or public health; or the revision or up-dating of existing standards’ [2] the accelerated procedure can be followed which allows for the omission of Steps 6-8. This procedure can only be followed if there is a two-thirds majority of votes cast. It does however allow for the speedier adoption of important texts.

Figure 1

Following the adoption of a standard, it is offered to the member countries for acceptance. The Commission has specified forms of acceptance:

Full acceptance - the country will apply with the standard to all products and will not restrict distribution of products complying with the standard.
Acceptance with specified deviations - the standard is accepted (as in ‘full acceptance’) except that there are certain aspects which are not accepted.
Free distribution - products complying with the standard will be allowed free distribution. This allows a country to retain a separate national standard but permitting imports of products complying with the Codex standard.

During the first 30 years of the existence of Codex, it has operated as a useful forum for the discussion of international standards. However the acceptance of standards has been very limited and largely confined to developing countries who were initiating food law and found it easy to use the Codex standard as their starting point. Many of those countries would have expected that the adoption of the Codex standard would have enabled them to enter the major markets of Europe and North America. This however has proved over optimistic since countries with established national controls, Europe and North America for example, were unwilling to modify their legal requirements. Codex standards were not a great success during this period.

The World Trade Organisation

In January 1995 the World Trade Organisation (WTO) came into existence. It updated and replaced the General Agreement on Tariffs and Trade (GATT). Countries can join the World Trade Organisation but membership confers obligations upon members to abide by the ‘rules’. The WTO was established by a ‘General Agreement’ [3] but it was supplemented by several more detailed agreements. Two of these are significant:

the Agreement on Sanitary and Phytosanitary Measures (the ‘SPS’ Agreement) [4] ; and
the Agreement on Technical Barriers to Trade (the ‘TBT’ Agreement) [5] .

The SPS Agreement

Of most relevance to the functioning of the Codex is the SPS Agreement. Several parts of the SPS Agreement are quoted in Table 2. In interpreting the extracts, it is necessary to bear in mind the definitions provided in Annex A to the Agreement which include the following:

Sanitary or phytosanitary measure - “Any measure applied ... to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs. .... Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety.”
International standards, guidelines and recommendations - “For food safety, the standards, guidelines and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice.”

Table 2: Extracts from the ‘SPS’ Agreement

Article 2 - Basic Rights and Obligations

2.1. Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement.
2.2. 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, except as provided for in paragraph 7 of Article 5.

Article 3 - Harmonization

3.1. To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.
3.2. Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994.
3.3. Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.

Article 4 - Equivalence

4.1. Members shall accept the sanitary or phytosanitary measures of other Members as equivalent, even if these measures differ from their own or from those used by other Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures achieve the importing Member's appropriate level of sanitary or phytosanitary protection. For this purpose, reasonable access shall be given, upon request, to the importing Member for inspection, testing and other relevant procedures.
4.2. Members shall, upon request, enter into consultations with the aim of achieving bilateral and multilateral agreements on recognition of the equivalence of specified sanitary or phytosanitary measures.

Article 5 - Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection

5.1. Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.
5.2. In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment.
5.3. In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: the potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.
5.4. Members should, when determining the appropriate level of sanitary or phytosanitary protection, take into account the objective of minimizing negative trade effects.

Under Article 3(1) of the Agreement member countries should base their food safety standards on the standards of the Codex Alimentarius Commission. However, under Article 3(3) a ‘higher level of sanitary or phytosanitary protection’ can be specified ‘if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate’ under the provisions of Article 5. Article 5 requires the use of ‘risk assessment techniques developed by the relevant international organisations’ and the use of ‘scientific evidence’. However, where controls are adopted they must ‘take into account the objective of minimizing negative trade effects.’

The TBT Agreement

The Technical Barriers to Trade Agreement provides for situations which are not covered by the SPS Agreement. With regard to food therefore it could include additional labelling requirements (when they are not related to health issues) or compositional requirements.

Relevant extracts from the text are given in Table 3. The Annex contains some definitions including the following:

Technical regulation - “Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.”
International body or system - “Body or system whose membership is open to the relevant bodies of at least all Members.”

Table 3: Extracts from the ‘TBT’ Agreement

Article 1 - General Provisions

1.3. All products, including industrial and agricultural products, shall be subject to the provisions of this Agreement.
1.5. The provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures.

Article 2 - Preparation, Adoption and Application of Technical Regulations by Central Government Bodies

2.2. Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.
2.3. Technical regulations shall not be maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade-restrictive manner.
2.4. Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems.

As with the SPS Agreement there is an requirement that Members will use ‘relevant international standards’ (Article 2.4). Where there are legitimate objectives not covered by the standards, then a country may adopt other requirements. Possible legitimate objectives are given in Article 2.2. It is also necessary to take into account the ‘risks non-fulfillment would create’ so as to avoid trade restrictive regulations. An example of a potential dispute covered by these Articles would be the EC additional labelling requirements for foods produced from genetically modified food ingredients (assuming that this is not a safety issue covered by the SPS Agreement).

No mention is made of the Codex Alimentarius Commission in the TBT Agreement but it would clearly be covered by the definition of ‘international body’.

Dispute Settlement

The requirements of the SPS and TBT Agreements are part of the rules of the WTO and must therefore be complied with. In establishing rules, there are also provisions contained within a ‘Dispute Settlement Understanding’ (DSU) which lays down the way in which disputes arising from the various Agreements will be settled. The DSU tries to provide for negotiation to resolve disputes but, if necessary, there is a detailed procedure for the establishment of a ‘Panel’, the publishing of a ‘Panel Report’, an appeals system where one party believes the panel has interpreted the provisions of the Agreements wrongly and procedures for implementing the final report. Failure to implement the decision can result in any aggrieved member country being permitted to take action against the country which has failed to implement the report findings. All of these processes are meant to happen within a relatively short time.

Implications for the Codex Alimentarius Commission

The adoption of the SPS Agreement has raised the profile of the Codex Alimentarius very significantly. No longer can its meetings be seen as an opportunity to have discussions but whose decisions can be ignored. Its standards are recognised as the basic standard upon which national measures will be judged. It is accepted that ‘higher standards’ may be deemed appropriate but there are restrictions based on them and they must be developed using risk assessment techniques.

Since 1995 the Codex Alimentarius has recognised that the enhanced status given to it by the World Trade Organisation must be met by improved procedures and by the greater use of science and of risk assessment techniques. Both of these are specifically required under the SPS Agreement.

Two statements have been formally adopted by the Codex Alimentarius Commission. At its 21st session in 1995 the Commission adopted ‘Statements of Principle Concerning the Role of Science in the Codex Decision-making Process and the Extent to which Other Factors are Taken into Account’ [6] . In particular this states that:
‘(1) The food standards, guidelines and other recommendations of Codex Alimentarius shall be based on the principle of sound scientific analysis and evidence, involving a thorough review of all relevant information, in order that standards assure the quality and safety of the food supply.’
The importance of science is however slightly modified by two further points which state:
‘(2) When elaborating and deciding upon food standards Codex Alimentarius will have regard, where appropriate, to other legitimate factors relevant for the health protection of consumers and for the promotion of fair practices in food trade.’
(3) In this regard it is noted that food labelling plays an important role in furthering both these objectives.’

At the 22nd session in June 1997, the Commission adopted a ‘Statement of Principle Relating to the Role of Food Safety Risk Assessment’ [7] . This includes the statements that:
‘Health and safety aspects of Codex decisions and recommendations should be based on a risk assessment, as appropriate to the circumstances.’ and
‘Food safety risk assessment should be soundly based on science, should incorporate the four steps of the risk assessment process, and should be documented in a transparent manner.’
With Article 5.1 of the SPS Agreement specifically referring to ‘risk assessment techniques developed by the relevant international organisations’, the Codex is progressing the development of detailed documentation.

With the special role given to the Codex under the SPS Agreement, the emphasis of Codex work has shifted from a focus on the work of the commodity committees (the committees which could be termed ‘vertical’) to the work of the general subject committees (the ‘horizontal’ committees). The definition of ‘sanitary and phytosanitary’ given above has focused work on subjects such as hygiene, additives and contaminants. The commodity committees have in the past prepared standards which have included many factors which relate to composition or presentation (often termed ‘quality factors’). These are not subject to the SPS agreement and are not seen as being issues which need to be included in an international standard - better to leave these factors to a commercial specification. As shown in Table 1, many commodity committees have ceased meeting although, for the purpose of updating certain standards, some may still be active.

There is a recognition that the enhanced status of the Codex will lead to increased pressure on delegates attending Codex meetings. Decision making at Codex meeting has historically been on the basis of a consensus. This was possible since a national delegate, on returning to their country, could simply ignore the consensus decision taking at the Codex meeting. With the Codex decisions now forming the basis of the ‘enforceable’ rules of the World Trade Organisation, this is no longer the case. This change is amply demonstrated by the recourse to votes at the 21st and 22nd sessions of the Codex in 1995 and 1997.

The first issue related to the adoption (at step 8) of a maximum residue limit (MRL) for 5 growth hormones. At the 21st session in 1995 [8] , after much discussion, a vote was taken as to whether the decision should be postponed pending an international conference organised by the EC. The vote was against postponement (28 votes for postponement, 31 votes against). It was then decided to hold a secret ballot on the adoption of the MRL. In this case the majority was for the adoption of the MRL (33 votes for adoption, 29 votes against). This decision therefore forms the basis of the complaint by the United States and Canada that the EC banning of the use of these hormones is contrary to the SPS agreement.

The second issue related to the adoption (at step 8) of a maximum residue limit for Bovine Somatotropin (BST). Adoption of a limit would imply that a scientific evidence allows the setting of a safe level, contrary to the position in the European Community where the use of the substance has been banned. The matter was discussed at the 21st session in 1995 [9] and a vote was held as to whether the debate should be adjourned until the 22nd session. The vote led to the adjournment (33 votes in favour, 31 votes against). At the 22nd session in 1997 [10] the matter was again discussed. The discussion included debate as to whether factors other than ‘sound scientific analysis and evidence’ could be taken into consideration - consumer concerns for example. It was eventually proposed that the toxicological status of BST be re-evaluated by the Joint Expert Committee on Food Additives and Contaminants (JECFA) and that the Codex Committee on General Principles should be asked to consider the application of the ‘other legitimate factors’. This proposal was adopted (38 votes in favour, 21 votes against).

A final point worth noting is that the Codex acceptance procedures have become almost irrelevant. As described above, members of the WTO (i.e. most countries of Codex) are obliged to consider Codex standards as the basis for their national controls. The use of ‘free distribution’ would appear to be the most acceptable means of demonstrating compliance with the requirements of the WTO. Of course, within the EU, the concept of ‘mutual recognition’ has been around for some time. The two ideas are very similar in that they both allow imports of products which may not comply with the strict legal requirements of the importing country but which meet the requirements of the Codex standard (in the case of ‘free distribution’) or another EU Member State (in the case of ‘mutual recognition’).

The full impact of the WTO on the Codex is not yet clear. Its enhanced status has been welcomed but there is the growing realisation that it may become politicised to the extent that it looses its ability to take decisions based strictly on science. A review of the working of the SPS Agreement is also scheduled and this could also cause further changes. It is clear that the Codex and the WTO are bodies which will have an impact on the work of food scientists and technologists for many years and an appreciation of their work is important for an understanding of the legislative framework in which they operate.

References

1. Codex Alimentarius Commission, “Procedural Manual” 10th Edition, FAO/WHO, 1997. Extracts from the Manual can be seen on the Codex website at: http://www.fao.org/es/esn/codex/
2. See Reference 1, page 22.
3. See http://www.wto.org/wto/legal/finalact.htm
4. Available on-line at: http://www.wto.org/goods/spsagr.htm or a copy can be downloaded from: http://www.wto.org/wto/legal/15-sps.wp5
5. Not directly available on line but a copy can be downloaded from: http://www.wto.org/wto/legal/17-tbt.wp5
6. Codex Alimentarius Commission (1995), Report of the Twenty-first Session, page 61. [Also published in Reference 1, page 146]
7. Codex Alimentarius Commission (1997), Report of the Twenty-second Session, page 91. [Also published in Reference 1, page 147]
8. See Reference 6, page 9.
9. See Reference 6, page 10.
10. See Reference 7, page 11.

This page was first established by David Jukes on 9 April 1999.