Foodlaw-Reading
Dr David Jukes, The University of Reading, UK
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WTO News Item, 25 and 26 March 2014
A WTO committee failed to agree on a definition for private standards for food safety and animal and plant health, and deferred a decision on a mediation procedure designed to avoid legal disputes, when it met on 25–26 March 2014.
Both issues have been discussed for several years in the Sanitary and Phytosanitary Measures (SPS) Committee and countries working on compromises had thought that their efforts were close to producing a consensus solution.
The committee, which consists of all 159 WTO member governments, monitors how countries are applying the WTO SPS Agreement, which deals with food safety and animal and plant health, and discusses issues arising from these rules and from individual countries’ measures.
With no consensus on a definition for private SPS standard, the committee accepted a suggestion from Canada to look at definitions for private standards used in other international forums and to try to adapt these to SPS. However, the failure to agree on a definition aroused concern from some members (details below).
A decision on the proposed compromise on the mediation procedure has been delayed until the next meeting. India wanted some issues to be clarified before it could accept the compromise (details below).
Specific concerns
Meanwhile, members raised their concerns — some new, some repeated — about each other’s measures involving meat, animal products and live animals, shrimps, and other products, with African swine fever joining diseases that are more regularly on the agenda such as mad cow (BSE) and foot-and-mouth diseases.
They shared information with each other about their regulations or SPS administrations (US, Canada, Pakistan and Burundi), from Japan about radiation from the Fukushima nuclear power station, and from the EU on an outbreak of African swine fever in wild pigs.
Nine specific trade concerns were withdrawn from the agenda or announced as resolved in the meeting. Some, such as Japan lifting a ban on fresh fruits from Argentina, Australia, Chile, Italy and Turkey, were the result of several years of negotiation. Others issues were withdrawn following bilateral talks among delegations attending the committee meeting.
SPS and Trade facilitation
Delegates and other experts discussed the relationship between the SPS and trade facilitation at a session organized after the committee meeting by the Standards and Trade Development Facility (STDF). “Trade facilitation” involves cutting red tape and streamlining processing at ports. SPS is one issue (under the heading of non-tariff measures) covered in the decision on the subject rom the December 2013 Bali Ministerial Conference.
The session presented a number of case studies from developing countries and identified needs for assistance in building up the capacity to handle sanitary and phytosanitary measures. Although trade facilitation in general is usually handled by customs officials, many SPS controls by veterinary and plant protection services also occur at borders and may entail unnecessary delays, costs and procedures. The SPS Agreement also applies to these types of measures, particularly in its Annex C.
The STDF was set up by the UN Food and Agriculture Organization (FAO), World Organization for Animal Health (OIE), World Bank, World Health Organization (WHO) and World Trade Organization (WTO), and is run by the five partners together with donor countries and representatives of developing countries.
Some details - see below
Inconclusive consultation
Specific trade concerns
Other issues
Private SPS standards
Three years after members agreed to try to define private SPS standards — such as those of supermarket chains and other entities outside government — members remain deadlocked.
They have now agreed to look at how other international bodies define private standards, and see how these might be adapted to food safety and animal and plant health. The Secretariat will compile the information for the next meeting in July.
This follows the failure of China and New Zealand — whose own positions were originally significantly different — to persuade members to accept the draft compromise they prepared from the contributions of a group of countries (an “e-working group”). Some members within the working group could not accept the draft.
China urged members to be constructive and agree on a definition in order to avoid “disaster” for the committee. Belize agreed, and said its own papaya and citrus exporters are suffering from the high costs of meeting buyers’ requirements that are unjustified and can differ even when the buyers are from the same country. Sharing the concerns were El Salvador, India and Ecuador.
The latest account of how the e-Working Group consulted and how New Zealand and China produced their draft definition is described in document G/SPS/W/276. The proposed definition prepared by the two is:
“An SPS-related private standard is a written requirement or a set of written requirements of a non-governmental entity which are related to food safety, animal or plant life or health and for common and repeated use.”
(Optional footnote: “This working definition or any part of it shall be without prejudice to the rights and obligations of Members under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures or the views of Members on the scope of this Agreement.”)
The e-Working Group was Argentina, Australia, Belize, Brazil, Burkina Faso, Canada, China, the EU, Japan, Singapore and the US.
The latest situation has remained largely unchanged, three years after the SPS Committee adopted five actions (see also G/SPS/55), the first being agreement to develop the definition. Seven other proposed actions have not been agreed.
When first raised in 2005, this issue took the SPS Committee into comparatively new territory — the committee generally deals with standards set by international standards-setting bodies and those imposed by governments. SPS Art.13 includes a requirement for governments to “take such reasonable measures as may be available to them to ensure that non-governmental entities within their territories” and others comply with the agreement.
Meanwhile, the International Trade Centre, a joint agency of the WTO and the UN Conference on Trade and Development (UNCTAD), introduced members in an informal meeting to its interactive visual information on voluntary standards, the standards map. The presentation is here (pdf, only in English).
Chair’s mediation role
Although India said it was not objecting to the draft procedure for using the chair’s services as a mediator (document G/SPS/W/259/Rev.7), it also said it could not accept the procedure until a number of legal questions were clarified, particularly how this procedure would relate to the WTO’s dispute settlement system and the implications of the procedure being voluntary.
India also opposed accepting the procedure “ad referendum”, in which the committee would adopt the procedure provided no objections were raised by a particular date.
Since the chair and the Secretariat cannot interpret WTO law, members have agreed that they should share their own views in an informal meeting in July, guided by the countries that have already been coordinating drafting the proposed procedure.
The chair’s mediation is already available under the SPS Agreement, and is seen as a way to avoid full-blown litigation under WTO dispute settlement. The proposed procedure sets out some voluntary steps designed to make it easier to use.
Specific trade concerns
The SPS Committee’s main task is to monitor how countries are implementing food safety and animal and plant health measures under the WTO Agreement, and to discuss issues arising from that, including the work of recognized international standards-setting bodies. Its deliberations range from comments on specific measures to broader principles.
A major contribution to this task is the information members share with each other through notifications to the WTO. Among the specific concerns (old issues identified by their number in the spsims.wto.org database) were:
African swine fever
The EU reported on instances when African swine fever was found in two wild boar in Lithuania in January 2014, and two in Poland the following month. It stressed that the disease has not been found in farm animals, said that the disease had spread from Russia and other countries to the east of the EU, and it described the controls in place and the technical assistance it has given to neighbouring countries.
The EU complained that Russia has imposed a blanket ban on live pigs, pork and products from the entire EU even though the disease had only been found in two countries (ie, Russia did not apply “regionalization”) and overlooked the EU’s controls. Meanwhile, Russia had reported to the World Organization for Animal Health (OIE) that the disease had been found in 600 wild boar and 400 farms meaning hundreds of thousands of farm pigs, the EU said.
The EU said it is paying the price for Russia’s failure to control the disease in its own territory, and urged Russia to bring its measures into line with international standards and to respect its WTO obligations.
Russia replied that the measure is temporary and can be resolved by negotiating the required certificates. Russia said the disease had spread from Georgia and described in detail the controls it has in place and the information it has shared with the EU and others to keep them informed.
US imports of meat from Brazil
This concern is unusual because it is not about a restriction on trade, but a third country complaining about the US proposing to drop its restriction on meat imports from Brazil arising from foot and mouth disease.
Nicargua, supported by El Salvador and Guatemala, said lifting the restriction would expose Central America to a higher risk of the disease. The US said its controls and risk assessment are stringent and urged the three to submit scientific evidence to support their concerns since comments can still be received on the proposal. Brazil said its beef is safe and of good quality, and that the US risk assessment is sound.
Other issues
These (full list below) included Japan’s repeated concerns about China’s and Rep. Korea’s import restrictions related to the Fukushima Daiichi nuclear power plant accident, Ukraine’s complaint about Russia’s restriction on some confectionary products (Russia said this was about fraud, and not about SPS or labelling), Russia’s complaint about what it said was excessive heat treatment requirements for meat products, and the perennial issue of mad cow disease (bovine spongiform encephalopathy or BSE) — the US describing its new comprehensive rule, and the EU expressing concerns about some countries maintaining restrictions which it said were unjustified and did not meet the standards of the World Organization for Animal Health, are not justified by science, or do not observe regionalization (recognizing that parts of a territory are free from a disease).
Next meetings
(including informal meetings) These dates could still be changed:
2014
P.S.
These are some of the trade issues or concerns discussed or information supplied by members.
Information from members
Specific trade concerns
After a number of issues were withdrawn or reported settled
New issues
Previously raised
(Numbers are “specific trade concerns” numbers in the SPS database. Documents can be found in WTO docs online. Document G/SPS/GEN/204/REV.14 summarizes issues raised up to the end of 2013)
