Food Law News - FAO/WHO/WTO/Codex - 2013

WTO News Item, 16 and 17 October 2013

WTO SPS - Record number of concerns raised on food safety, animal-plant health measures

The WTO committee dealing with food safety and animal and plant health heard a record number of specific trade concerns — 11 new, 12 old and one under “other business” — but was unable to agree on a mediation procedure designed to avoid legal disputes when it met on 16–17 October 2013.

The specific concerns covered a variety of import measures affecting trade in products from fruit and meat to seafood and swallows’ nests, with actions ranging from import bans and port closures to the use of testing laboratories and outsourced certification.

The WTO’s 159 members, meeting as the Sanitary and Phytosanitary (SPS) Measures committee, also heard that 35 measures are now resolved and 10 more are partly resolved either because some among a group of countries consider the issues to be resolved, or because some concerns among a broader set of issues has been settled.

These numbers emerged via a notification from the EU and information from the Secretariat, after the committee started to clean up a growing backlog of concerns that had been raised in the committee, without any recent follow up. The EU’s notification (G/SPS/GEN/1269) listed nine resolved cases it had originally raised but had only now reported settled, one dating back to May 1996.

But the committee failed to agree on a way to make it easier for countries to use the chairperson’s mediation services for problems they have about each other’s measures and to avoid bringing legal disputes against each other.

They were unable to agree on a draft procedure (document G/SPS/W/259/Rev.7) because of an objection from India (details below).

The committee also remained divided on a working definition for private standards, despite China and New Zealand producing a compromise draft, which bridged their own substantial differences.

The two-day meeting also heard the latest information from members on new laws and regulations (US and Canada), whey protein contamination (New Zealand), eliminating the use of methyl bromide, a fumigation pesticide now being phased out around the world because it damages ozone in the atmosphere (Indonesia,)and measures to deal with contaminated water at the Fukushima nuclear power station (Japan).

Delegates also heard that current negotiations on “trade facilitation”, a Doha Round issue being discussed in preparation for the December Bali Ministerial Conference could affect SPS because among the topics discussed is importing countries requiring products to be inspected before they are exported. The Secretariat encouraged SPS experts in this committee to work with their colleagues negotiating trade facilitation — broadly streamlining procedures at ports and in customs.

Some details

The WTO’s World Trade Report 2012 has identified SPS measures among non-tariff barriers that are having an increasing impact on trade.

The SPS Committee’s main task is to monitor how countries are implementing these 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. By 15 September 2013, members had submitted 10,643 regular notifications, 1,489 emergency notifications, and 3,670 additions and corrections to these since the WTO was set up in 1995. In the year up to that date members submitted a total of 1,267 notifications, comprising 851 regular notifications, 69 emergency notifications, 345 additions and corrections, and two supplements, according to a Secretariat compilation (document G/SPS/GEN/804/Rev.6).

The US has submitted 2,506 regular notifications since 1995, almost a quarter of the total, and a large number dealing with pesticide residues in various foods.

Many regular measures notified aren’t based on an international standard

Developing countries (including least developed) now submit around two thirds of regular notifications

Specific trade concerns

Among the specific concerns  (old issues identified by their number in the database) were:

US accreditation of third party bodies to conduct food safety audits and to issue certificates.

This was a new concern raised by China but is part of continuing information and comment on the regulations the US is issuing to implement its Food Safety Modernization Act.

Among China’s concerns was whether the US government would ensure its outsourced audits and certification would comply with obligations governments have to meet in SPS. Supporting China were Brazil, Belize, and Rep. Korea. The US said the policy is still open for comment, urged members to submit their comments and added it was pleased to hear that China would do so.

Rep. Korea’s Import restrictions on Japanese fish in response to the Fukushima nuclear power plant accident

Japan, which had already briefed members on the latest situation at Fukushima, said radioactive contamination was restricted to a small area inside the port, with negligible levels outside. It said extensive monitoring has ensured that exported foods are within radionuclides concentration limits based on Codex Alimentarius, the FAO-WHO agency recognized under the SPS Agreement for setting food safety standards.

Japan welcomed a number of countries’ swift decisions to remove their import restrictions, and urged Rep. Korea to do the same. Rep. Korea has not provided scientific explanations for the restrictions and for certification and test requirements, Japan said.

Rep. Korea replied that because the situation is still unpredictable, it had to deal with the risk by applying Art.5.7 of the SPS Agreement, which deals with provisional actions that countries can take as a precaution. (Back to list)

Mad cow disease (No 193):

In the latest exchanges of one of the longest-running issues in the committee, Brazil complained about beef import restrictions in China, South Africa and Japan even though mad cow disease (bovine spongiform encephalopathy or BSE) was found in only one cow and did not find its way into the food chain.

The EU repeated its concern that countries ban imports on BSE grounds on products that are considered safe by the World Animal Health Organization (OIE), and on products from whole countries instead of recognizing that regions within them are disease-free. This time the EU said it is concerned about China’s import ban, urged Rep. Korea and the US to speed up their efforts on allowing imports, and praised Singapore for relaxing its restrictions.

Replying either to Brazil or the EU or both, China, South Africa, Japan and Rep Korea said they were discussing the issue bilaterally and in some cases seeking more information. China said there are many problems “undefined” in science, and that it has no BSE cases and has to protect its livestock. Its laws and regulations ban imports from countries that have BSE, China said.

Indonesia’s port closure and other measures (no 330)(see earlier news story).

The latest complaint in a series came from China, which said that its exports had suffered considerably because of Indonesia’s recent regulations. These require accreditation and inspection for fruit and vegetables in exporting countries and sometimes in Indonesia as well, specifying a private company (SGS) to inspect the products at the exporting port, and limiting entry to four ports with Tanjung Priok in Jakarata temporarily closed for these imports. China has a long history of “smooth trade” in these products around the world, it said.

Support came from the EU, which complained about discrimination in favour of a few countries that can ship through the Jakarta port, and Chile.

Indonesia listed a number of pests discovered and in some cases spread to plantations, which led to the new regulations. The port in Jakarta is being improved to reduce the risk of infestations, which means it is open for imports provided certain conditions are met, it said.

Novel foods (No 238).

Peru, supported by Ecuador, Costa Rica, Colombia, Chile, Cuba and El Salvador, continued to be concerned about the treatment of their indigenous and traditional products which are treated as “new” in the EU market because they have no significant history of consumption in that market. The EU said it intends to table a new policy by the end of the year designed to ease access to the EU for traditional foods from third countries while ensuring the foods are safe.

China’s ban on Norwegian salmon (No 319):

Norway continued to complain about China’s December 2010 ban on its salmon, which China blamed on the discovery of pathogenic microorganisms and excess residues of veterinary drugs, and Norway’s failure to improve the quality and safety of its salmon. Norway said China’s data do not match its own, that its exports meet the same standards as exports from the EU under the European Economic Area (the EU, Iceland, Liechtenstein and Norway), and called for technical consultations.

Inconclusive consultations

On the chair’s mediation role, which is already available under the SPS Agreement, India’s objection to the draft procedure (document G/SPS/W/259/Rev.7) meant there was no consensus to adopt it. Those members opposing the text (principally India) have been asked to produce amendments that they think other members will be able to accept, which would be put for a decision at the next meeting in March 2014. Failing that, the present text will be re-submitted, the chairperson said.

India complained that the latest text diluted the original draft procedures and did not refer to a similar proposal for non-tariff measures in the Doha Round negotiations on non-agricultural market access (NAMA).

All other speakers said they were willing to accept the text as a compromise even though they were not entirely happy with it. Some suggested a minor change but said they would not block consensus on the text as it is. Several argued that no one should object to the text because it simply elaborates on a provision that already exists in the SPS Agreement (Art.12.2). Speakers supporting the compromise included the EU, El Salvador, Argentina, Brazil, Uruguay, Chile, Switzerland, Belize and the US.

The chairperson had originally proposed that if there were no consensus at this meeting, the proposal should be dropped since it has been discussed at length since 2005, and she repeated the intention. Although the EU and Canada supported her, the US, Brazil and others urged her to keep it on the agenda for the next meeting as it was clear that virtually all members were now prepared to adopt the proposal. (Back to list)

On the definition of private standards, members remained divided on a working definition of private standards, even though China and New Zealand, countries with very different views, produced a compromise draft:

 “An SPS-related private standard is a set of requirements of a nongovernmental entity which are related to food safety, animal or plant life or health.*

 “*This working definition or any part of it shall be without prejudice to Members’ rights and obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures.”

China and New Zealand will  now work with a group of other countries to see if the definition can be redrafted and be accepted by all.

Agreeing on a working definition of private standards is the first of five steps that members agreed in March 2011 and in document G/SPS/55.

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. (Back to list)

Next meetings

 (including informal meetings) These dates could still be changed:



These are some of the trade issues or concerns discussed or information supplied by members.

Information from members

Specific trade concerns

New issues

Issues previously raised

Information on resolution of issues

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