WTO: Linking with Development
Sponsored by the South-North Federation on Developmental
Perspectives of the World Trade Organization
The WTO Agreement on
Sanitary and Phytosanitary Measures - Weakening Food Safety Regulation to Facilitate Trade
Director of Legal Affairs
Center for Science in the Public Interest
* * *
25 May 2000
Good morning. I am delighted to have this opportunity to address you today and would
like to thank the Wemos Foundation for inviting me to participate in this conference.
For those of you who are not familiar with the Center for Science in the Public Interest
(CSPI), let me tell you just a little bit about us. We are a consumer advocacy organization based
in Washington, D.C. with offices in Ottawa, Canada. We are supported by one million
subscribers to our magazine, Nutrition Action Health Letter, which reports on food safety and
nutrition issues. Our members are primarily from North America, but we do have some
members from around the world. We were formed in 1971 and over the decades have
campaigned for the elimination of hazardous food additives, worked to improve meat and poultry
inspection, and fought for and won legislation requiring full nutrition labeling on the labels of all
foods sold in the United States.
In light of the globalization of the food industry, we have become increasingly involved
in international issues. CSPI is the U.S. co-chair of the Food Working Group of the Transatlantic
Consumer Dialog (TACD). I will discuss the work of the TACD in this area a little bit later.
CSPI has also formed the International Association of Consumer Food Organizations (IACFO),
which is an international coalition of consumer groups that work primarily on food safety and
nutrition issues. Our charter members are the Food Commission U.K., based in London, and the
Japan Offspring Fund, based in Tokyo. IACFO is a recognized observer at the Codex
Alimentarious Commission (Codex) and regularly participates in Codex meetings. IACFO has
also filed comments with various governments on the labeling of genetically engineered foods
and has issued a report on the regulation and marketing of so-called "functional foods."
This morning I would like to discuss the impact of the World Trade Organizations
(WTO) Agreement on Sanitary and Phytosaniatry Measures (SPS) on food safety.(1) I will begin
by briefly reviewing the provisions of the SPS agreement, discuss how they are being
implemented to date, and identify some of the impacts that this trade agreement is having on food
safety. I will close by discussing various directions that reforms may take in this area.
It is indeed time to begin discussing how to fundamentally reform the WTO and
particularly the SPS agreement. Last December, I was in Seattle, Washington attending as an
observer the Third Ministerial meeting of the WTO. As you know, that meeting collapsed in part
because tens of thousands of demonstrators blocked delegates from entering the site of the
meeting for almost two days. On the way back home, I was fortunate to be on the same airplane
flight as Ralph Nader, the founder of the contemporary American consumer movement. We
were discussing the impact of the weeks events and concluded that it was time to stop talking
only about how to make the WTO more transparent and how to improve public participation in
Codex (which is assigned a major role under the SPS agreement to set international food safety
standards). Instead, it was time to start talking about how to fundamentally reform the role of
these institutions. We observed that the current SPS agreement merely represents a method by
which nations can create exemptions to each others food safety laws. We concluded that this
international agreement on food trade should be supplemented by a new international agreement
on food safety whose sole purpose would be to raise consumer protection standards, not lower
trade barriers. In short, the globalization of the food industry necessitates an international food
safety agreement, not just an international trade agreement on food safety.
II. Review of the SPS Agreement
Under the SPS agreement, the WTO may force a nation to choose between lowering its
health standards for humans, animals, or plants,(2) or paying an international penalty.(3) The penalty
can take the form of either compensating the foreign government whose exports to the nation are
limited by the stricter standard or permitting that country to impose additional trade restrictions
on exports from the nation with the more protective health standard.
A national health standard is illegal under the SPS agreement if the WTO decides that it
is not "based on scientific principles and is ... maintained without sufficient scientific evidence."(4)
In making this judgment, the WTO examines the extent to which the country has done a
scientific assessment of the risk to "human, animal, or plant life or health."(5) Article 5 provides
that "Members shall ensure that such measures are not more trade-restrictive than required to
achieve their appropriate level of sanitary or phytosanitary protection, taking into account
technical and economic feasibility."(6)
The SPS agreement can be used by governments to attack national requirements that
address the concerns of consumers. The only WTO decision applying the SPS illustrates the
problems raised by the agreement. In January 1998, the Appellate Body of the WTO affirmed a
Panel decision sustaining complaints by the United States and Canada that the European Unions
(EU) ban on imported beef produced from cattle treated with growth hormones -- even though
the ban also applies to domestic beef -- violated the SPS agreement because the EU had not
conducted the type of risk assessment required by Article 5 of the SPS agreement.(7)
The United States legal victory at the WTO has not, of course, led to any United States
exports of hormone-fed beef to the EU. In July 1999, the United States announced it would
impose 100 percent tariffs on $117 million of food imports from Europe because the EU refused
to repeal its ban. These higher tariffs have, in turn, led to higher prices for United States
consumers and social unrest in France and other parts of the EU where farmers and others have
retaliated by attacking McDonalds restaurants. So in brief, the current operation of the SPS
agreement has led to higher prices and social unrest, two of the very problems that free trade is
supposed to help prevent. Clearly, in light of the willingness of governments to pay reparations
in order to avoid complying with WTO decisions, and the resulting social unrest, not even the
most ardent free trade supporters can say that the current system is working well.
While the WTO has decided only one case involving the SPS agreement as it pertains to
food safety and human health, governments may threaten action under the SPS agreement as a
way of pressuring another country to accept its imports. This type of informal activity, often
invisible to public scrutiny, may represent a more insidious threat to a nations food safety
standards than an actual WTO challenge, which is at least subject to some established rules.
For example, the United States Office of the Special Trade Representative (USTR),
seeking to promote United States sales of antibiotics used in livestock, wrote to the European
Commission in the summer of 1999 that the EUs ban on the use in livestock feed of human-use
antibiotics might be illegal under the SPS agreement because the EU had failed to notify the
United States of its actions and had not done a "proper risk assessment." The USTR made this
statement even though: (1) the United States Centers for Disease Control had concluded that the
EU ban is "scientifically justifiable" and "protects the public health," (2) the World Health
Organization had recommended in 1997 that antibiotics used to treat humans should not also be
used to promote animal growth, and (3) the United States National Academy of Sciences had
concluded in 1998 that "there is a link between the use of antibiotics in food animals, the
development of bacterial resistance to these drugs, and human disease."
Trade agreements can also be used by governments to attack food labeling requirements.(8)
For example, the USTR told Congress that the 1998 requirement of the EU for labeling of foods
containing genetically modified corn or soybeans is a barrier to international trade because "the
United States believes that such labeling is unnecessary, in the absence of an identified and
documented risk to safety or health."(9) Meanwhile, United States consumer groups testified in
favor of mandatory labeling for genetically modified foods at recent U.S. Food and Drug
In an analogous case, EU officials asserted that the mandatory nutrition labeling required by the U.S. is a trade barrier.(10) The U.S. requirement(11) was instituted to help Americans improve
their diets and reduce their risk of heart disease and cancer, and was supported by the American
Heart Association, the American Cancer Society, and 20 other national health and consumer
organizations. Practically no members of the food industry supported the legislation when it was
introduced in Congress. Nonetheless, the European Commission has claimed that the U.S.
labeling law favors U.S. producers and is a barrier to trade. Meanwhile, European consumer
groups are seeking mandatory nutrition labeling in the EU.
To the extent that the global trading system raises food safety standards to a consistent
level of excellence, consumers worldwide are well served. However, if the current system tends
to reduce standards to some acceptable international norm, then consumer health and safety may
be jeopardized regardless of the economic benefits brought about by free trade. President
Clinton paid "lip service" to this point in a 1998 speech to the WTO where he called for a
"leveling up," in his words, of consumer protection regulations and not a "leveling down." But
what is in fact happening? The current operation of the SPS agreement reveals numerous
instances of leveling down, not up. This is happening for several reasons.
- First, the SPS is not a public health agreement, it is a business oriented trade
agreement that is supposed to reduce regulation and make it easier for companies to trade
internationally. Thus, under the SPS agreement, a nation may challenge another nations
food safety standards only for being too high -- there is nothing in the agreement that
permits a nation to challenge another nations standards as being too low. In brief,
pressure for downward harmonization is directly built into the SPS agreement because it
is designed to facilitate trade, not to raise health and safety standards.
- Second, in applying the SPS agreement, the WTO relies extensively on decisions
by Codex. Article 3 of the SPS agreement provides that a national health standard for
food is presumptively legal if it conforms to a standard, guideline, or recommendation
established by Codex. A national standard that provides a greater level of protection than
Codex is a "trade barrier" unless the WTO decides that the stricter national standard is
based on a proper "risk assessment" that demonstrates that the Codex standard, guideline,
or recommendation does not provide sufficient protection or that the country maintaining
the stricter standard has other scientific justification.(12)
In light of the new role of Codex under the SPS agreement, proceedings of the
Commission have often become trade battlegrounds and forums for deregulation. As a result,
recent Codex decisions reflect political compromises designed to promote international trade, not
the best science designed to protect consumers. For example, at its June 1999 meeting, Codex
approved, with the acquiescence of the U.S., a maximum residue level for methyl parathion (and
other pesticides) even though two months later the United States Environmental Protection
Agency (as mandated under United States law) banned methyl parathion for fruits and vegetables
because of its potential adverse effects on children. Similarly, Codex approved by consensus a
maximum level for aflatoxin -- a naturally occurring carcinogen produced by a mold that grows
on peanuts -- of 15 ug/kg. That level was higher than the level sought by the EU and represented
a compromise with the United States, which permits greater amounts of aflatoxin in peanuts for
International standards like these should serve as a minimum "floor," not a maximum "ceiling." But in the SPS agreement, it is just the opposite -- Codex standards represent a "ceiling" that countries cannot easily exceed.
- Third, the SPS agreement does not adequately provide for special consideration of
the needs of developing countries. In recognition of the difficulty that developing
countries have complying with the SPS agreement, Article 10 of the agreement requires
that WTO members shall, when preparing and enforcing food safety measures, take into
account the special needs of developing countries that cannot comply with various health
and safety standards. Article 9 of the SPS agreement requires that developing countries
be provided with technical assistance to assist them in complying with health and safety
standards, but developed countries have not lived up to their obligations in this area.
Absent adequate technical assistance, governments representing developing countries are
sometimes forced to argue at Codex for downward harmonization on the grounds that
they cannot meet high international standards. This situation is not acceptable for either
developing or developed countries. Developed countries must provide developing
nations with technical assistance that will allow them to meet world class standards to
both benefit their own citizens and to compete effectively in international markets.
- Fourth, the SPS agreement provides for so-called equivalency agreements
whereby one country recognizes another countrys food safety regulatory system as
"equivalent" to its own, even though the two systems are different. This provision of the
SPS agreement also operates to lower food safety standards because it is designed to
facilitate trade, not raise consumer protection standards. For example, in 1996 the U.S.
issued new rules for meat and poultry inspection. It took the U.S. Department of
Agriculture (USDA) more than three years after the final regulations were announced to
determine whether meat and poultry exporters who chose not to comply with the new
rules where nonetheless following "equivalent" procedures that achieved the same level
of public health protection. During this time, the USDA allowed companies to continue
to export meat and poultry to the United States based on a mere assertion that they were
adhering to "equivalent" standards. The USDA ultimately found in December 1999 that
only 32 of the 36 countries exporting meat and poultry to the U.S. actually had an
Equivalency agreements can lead to improvements in food safety requirements. The U.S. certainly does not have the strongest requirements in every area and can learn from other countries. Unfortunately, however, equivalency agreements are currently being used in the U.S. to merely facilitate trade at the cost of lowering consumer protection requirements.
In October 1999, the TACD released a paper entitled On the Proposal to Launch a New
Round of Trade Negotiations at the Seattle Ministerial Conference. In that paper, the TACD
stated that the SPS agreement "undercuts governments ability to establish and maintain
legitimate, non-discriminatory food safety and food-related consumer information labeling
policies." The TACD also stated that "given the troubling pattern of WTO use as a tool against
domestic food safety, health and other consumer concerns, we call for the Seattle Ministerial
Declaration to announce a moratorium on new WTO challenges to prima facie non-discriminatory environmental, health and safety measures, such as EU labeling of genetically
modified organisms, until a speedy and thorough review [of the SPS agreement] has been
completed." (emphasis in original).
The TACDs specific recommendations for reforming the SPS agreement were deletion
of the word "provisional" in Article 5.7 of the SPS agreement (which would allow countries to
make food safety decisions based on the precautionary principle), reconsideration of the current
rules relating to the burden of proof to demonstrate a product is safe, changes to Article 3
(limiting the legal significance of decisions by Codex), and changes to Article 4 (dealing with
equivalence of national health measures). The TACD also called for greater consumer
participation in the work of both Codex and the WTO and called on Codex to weigh -- along
with science -- social and ethical factors, animal welfare, and environmental protection
considerations in its decisions.(13)
These changes would require amending the SPS agreement. Negotiations regarding these
amendments could theoretically take place at the ongoing WTO negotiations on Agriculture. We
should urge our governments to raise such matters at these negotiations.
But these recommendations do not get to the heart of the problem that Ralph Nader and I
discussed on our way back home at the WTO fiasco in Seattle. The globalization of the food
industry necessitates a new international food safety agreement, not the international trade
agreement on food safety that we currently have. That is the larger task that we face and one that
this conference will hopefully tackle. During preliminary meetings I have had with NGOs in the
United States, it would certainly seem appropriate to begin discussing a new role for the World
Health Organization, including providing it with a mandate to set food safety standards without
regard to trade considerations and providing it with a mechanism to enforce its decisions.
The ultimate answers to the problems we face are not yet evident, but I think we should
all think "big" -- consumers around the world have made it clear that they do not favor the
current system and the trade establishment knows that fundamental reforms are now being
Will real fundamental reform be possible? That will likely depend on all of us here. The
best way to predict the future is to invent it. The future is not something we enter, the future is
something we create.
1. The WTO Agreement on Technical Barriers to Trade (TBT) also affects consumer protection requirements pertaining to food that do not explicitly involve health or safety issues. Because of time constraints, this presentation will focus on the SPS agreement but will note areas where the TBT agreement may be relevant.
2. In two cases (not involving the SPS agreement) the United States has elected to change its regulations after losing a WTO decision. The Environmental Protection Agency changed its Clean Air Act regulations for oil refineries after Venezuela successfully challenged them. The Administration is now considering changes in the Endangered Species Acts regulations to protect sea turtles when shrimp are caught after India, Malaysia, Pakistan, and Thailand successfully challenged the current U.S. rules.
3.The TBT agreement deals with food labels and other national requirements established for reasons other than to protect the life or health of people, animals, or plants. Article 2 of the TBT Agreement provides that such a labeling requirement -- even if does not treat imports differently than domestic products -- is illegal if it restricts international trade more than is "necessary to fulfill a legitimate objective, taking account of the risks non-fulfillment [of that objective] would create."
4. Article 2.2 of the SPS agreement says "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 5.7 says "In cases where scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time."
5. Article 5 deals at some length with the assessment of risk and determination of the appropriate level of sanitary or phytosanitary protection. Article 5.1 says "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."
6. The SPS agreement explains that this latter provision means that a measure is illegal if "there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade."
7. EC Measures Concerning Meat and Meat Products (Hormones) (January 1998). When the EU refused to rescind its hormone ban, the WTO permitted the United States to impose a 100 percent ad valorem tariff on $117 million of food imported from the EU.
8. It is not clear whether the SPS or TBT agreements would govern such disputes.
9. USTR, 1999 National Trade Estimate Report on Foreign Trade Barriers at 112. In September 1998 the USTR told the WTO that the EUs labeling requirement could violate the TBT agreement. Inside U.S. Trade (September 25, 1998) at 16-19.
10. 15th Annual Report on United States Barriers to Trade and Investment, European Commission (August 31, 1999). The report states that U.S. nutrition labeling requirements differ from international labeling standards set by Codex and present "serious negative consequences on EU-U.S. trade in foodstuffs."
11. As required by the Nutrition Labeling and Education Act of 1990, United States consumers can now find mandatory nutrition information on nearly all food labels (the principal exception being fresh meat and poultry). Disclosure is required for calories, total fat, saturated fat, cholesterol, sodium, potassium, dietary fiber, sugars, and protein. CSPI has petitioned the U.S. Food and Drug Administration to add two additional disclosures, trans fats and added sugars, to reflect current scientific information.
12. Article 2.4 of the TBT agreement provides that countries shall use Codex or other international standards "except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of a" legitimate objective.
13. The TACDs specific recommendations for changing the TBT agreement included making it easier for a country to have a national standard that gives more protection than an existing or imminent international standard.