Foodlaw-Reading

Dr David Jukes, The University of Reading, UK

..... ..... ..... ..... ..... .....

Food Law News - FAO / WHO / WTO / Codex - 2015

WTO News Item, 26 and 27 March 2015

SPS COMMITTEE – SPS Formal Meeting: Food safety body agrees to e-working group “time out” on definition of private standards

WTO members meeting as the committee dealing with food safety and animal and plant health have agreed to a time out in the efforts of an electronic working group to agree on a working definition of SPS-related private standards after failing to bridge their impasse on the issue.

At a meeting of the Committee on Sanitary and Phytosanitary (SPS) Measures, members agreed to a proposal from the co-stewards of the e-working group for a “cooling off” period to reflect on how to overcome the impasse.

Members of the e-working group have been unable to agree on a working definition of an SPS-related private standard.  This definition, as Chairperson Ms Lillian Bwalya of Zambia pointed out, is not meant to be a legal definition but rather provide a framework to limit the scope of issues considered by the committee.

Private standards are a growing concern among developing countries, many of whom took the floor at the committee meeting to urge continued efforts to find a compromise.  A survey carried out by the WTO Secretariat in 2009 found that the main entities imposing private standards were large retailers such as supermarkets and hypermarkets and that products identified as being most affected by these standards are fresh fruit and vegetables and fresh, chilled or frozen meat.

WTO members agreed in March 2011 on five “actions” for how WTO members might deal with private sector standards for food safety and animal and plant health.  Securing a working definition on private standards is the first of these five actions.

China and New Zealand are co-stewarding the electronic working group on the issue and have put forward a proposed working definition (G/SPS/W/283).  While most members gave their support to the proposed definition, several developed country members said they could not support the proposal because it might imply that private standards are covered by the SPS Agreement. 

Others said they were ready to be flexible but echoed the argument that private standards fall outside the scope of the SPS Agreement.

China and New Zealand proposed the following working definition: “An SPS-related private standard is a written requirement or condition, or a set of written requirements or conditions, related to food safety, or animal or plant life or health that may be used in commercial transactions and that is applied by a non-governmental entity that is not exercising governmental authority.”

The proposal also included a statement or footnote stating that the working definition did not prejudice the rights and obligations of members under the SPS Agreement or the views of members on the scope of this agreement.

China and New Zealand reported that opponents objected in particular to the use of the terms “non-governmental entity” and “requirements” in the proposed definition.  Argentina countered that these terms have been used by standards bodies such as the World Organization for Animal Health (OIE) in their definitions of private standards and had never received any objections.

Many African, Latin American and Caribbean countries took the floor to urge compromise, with some arguing that their exporters were being negatively affected by costly and arbitrary private standards.  Among those intervening on the issue on 27 March were Argentina, Belize, Brazil, Burkina Faso, Cape Verde, the Central African Republic, Cuba, Ecuador, India, Kenya, Mali, Nigeria, Senegal, and Uruguay.

Other matters

EU, Russia trade accusations on pork restrictions

The European Union and the Russian Federation squared off again over their respective efforts to control the spread of African Swine Fever (AFS), a highly-contagious hemorrhagic disease of pigs.  Russia told the committee that the prognosis for spread of AFS is unfavorable and questioned what it said were optimistic declarations from EU officials regarding control of the disease within the EU, noting that the current number of declared cases now stood at 330.  The EU responded that it would not engage in a debate on Russia's statement since the matter was currently the subject of dispute settlement (DS475). The EU described the control measures it has taken to prevent the spread of the disease and limit its impact on trade.

Specific trade concerns — new items

The committee addressed six new specific trade concerns raised by members in relation to the trade effects of SPS measures.  A seventh item relating to Vietnamese measures on meat and dairy products was removed from the agenda after Chile reported progress in bilateral talks with Vietnam on the issue.

China — measures on bovine meat

India quizzed China over its restrictions on bovine (buffalo) meat imports from India.  Indian meat has not been allowed on the Chinese market for many years due to concerns over foot and mouth disease.  Even though the two countries signed a memorandum in 2013 to address the ban, India said it was still waiting for Chinese quarantine inspectors to examine meat processing plants so that these plants could be cleared to export to China.  China replied that it had actively implemented the 2013 memorandum but that India had not submitted the requested technical data until July 2014.  Nevertheless, Chinese authorities are making all efforts to conduct a technical analysis on the data supplied by India and would intensify work on lifting the ban.

General import restrictions due to outbreaks of ASF, avian flu

The EU said it was concerned about the imposition of country-wide bans on imports of EU pork due to the spread of ASF to four EU member states (Lithuania, Latvia, Estonia and Poland).  Those WTO members imposing the bans ignore the concept of regionalization as laid down in the WTO's SPS Agreement and by the World Organization for Animal Health (OIE).  It urged members to allow trade of all safe products as soon as possible, especially from non-affected zones.

The EU made similar comments regarding country-wide bans on poultry exports from EU member states affected by highly pathogenic avian influenza (HPAI).  It underlined that in the case of both ASF and HPAI the EU had put into place effective detection, control and eradication measures.

Mexico — measures on imports of hibiscus flowers

Nigeria, supported by Senegal and Burkina Faso, raised concerns about Mexico's import restrictions on imported hibiscus flowers, which Nigeria said were resulting in shipment delays and in some cases huge losses.  Mexico said export certification declarations on 14 shipments from Nigeria last year were found to be falsified but that it was holding talks with Nigeria on guaranteeing the authenticity of the certificates.

Chinese Taipei — restrictions on food imports from Japan (Fukushima disaster)

Japan said it was concerned about draft import regulations in Chinese Taipei strengthening restrictions on imports of food products from five Japanese prefectures due to concerns over contamination arising from the 2011 Fukushima nuclear disaster.  Radioactive levels in Japanese food have decline substantially since the accident, Japan said, and the draft regulation as well as the existing regional bans were not based on international standards.  The two sides were currently engaged on finding a solution, Japan added.  Chinese Taipei said consumer groups and the public were concerned about food imports from Japan, especially following a new leakage incident at the affected Fukushima plant in 2013, but that it looked forward to finding a mutually satisfactory solution with Japan on the issue

(Under “issues previously raised”, Japan reiterated ongoing concerns with restrictions on its food exports to China and Korea.  These restrictions have no justification, Japan said, noting that Australia, the EU, Singapore, the US and Vietnam had lifted or eased their Fukushima-related restrictions).

US — proposed rule for user fees for quarantine and inspection services

Mexico raised concerns about a new proposed regulation presented by the US Animal and Plant Health Inspection Service (APHIS) in April 2014 that it said would substantially raise inspection fees by more than 200% for certain lorries and other modes of transport.  Mexican lorry traffic would be the most affected by the fee hike, which Mexico said was inconsistent with provisions of the WTO agreements (including the SPS Agreement) as well as the North American free Trade Agreement (NAFTA).  The US responded that the fee hike was still under review and that it would take into account Mexico's concerns.

Issues previously raised

Ongoing work on defining criteria for identifying endocrine disruptors — EU

Seventeen WTO members reiterated their concerns about the EU's efforts to define criteria for identifying endocrine disruptors in the context of the implementation of the EU's Plant Protection Product Regulation and Biocidal Products Regulation.  Some scientific studies have indicated chemicals might inadvertently be disrupting the endocrine (hormonal) system of humans and wildlife, although there is no scientific consensus on the issue. The EU published a “road map” in June 2014 spelling out how it would proceed. 

The main complaints were that the EU does not spell out the scientific evidence used in developing each of the options identified in the road map and that the options do not appear to be based on risk exposure criteria.  They also cited the major potential impact the future EU rules could have on trade.  The EU responded that there was no new legislative proposal on the issue and that the road map was subject to a recently-concluded consultation.  A stakeholder conference on the initiative would be held on 1 June.  All of this will feed into an impact report that would then result in a legislative proposal at an undetermined date.

Application and modification of the EU regulation on novel foods

Peru was joined by six other Latin American countries in reiterating concerns about the EU's application and proposed modification of the novel foods directive.  The directive regulates the authorization of foods which have not been consumed to any significant degree in the EU prior to May 1997.  The Latin American countries said the measure is not based on a risk assessment as required by the SPS Agreement.  The EU said the new proposal does not change the definition of novel foods or the scope of the existing regulation but would streamline the process for traditional foods,  and is in line with SPS Agreement requirements.

New chair

Brazil's Felipe Hees will take over from Lilian Bwalya as chairperson of the SPS committee at its next meeting on 15-16 July.


To go to main Foodlaw-Reading Index page, click here.