An overview of the SPS Agreement

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  • An overview of the SPS Agreement

    1. 1. ■■■ 1 peter gallagher g■■■Sanitary & PhytosanitaryIntroduction to the WTO SPS Agreement
    2. 2. ■■■ 2 peter gallagher g Before the SPSOrigin and objectives A greement: y the Tokyo ered b Round res h ad been cov agreement. The Code SPS measu rilateral uce ards Code", a plu r of signatories to introd "Stand numbe ry and ‣ Negotiated and adopted as part of thepermit d its limited teagreementshnical or sanita imate" UR ade-restrictive tec (1994) "legit potentially tr ons in the p ursuit of a f human, ry regulati protection o ‣ phytosanita objectiv b y inv lant h ample the Intended to elaborate & clarify the existinge,general exceptionntonmenecurity oking for ex ealth, the pr otection of the e viro GATT ns, and nati onal s t, provisions in Art. XX(b) to provide greateralcertainty sand, ratio ct of a separate anim or p religiou co nside according to welfare, animal sui generis now the s ubje the Preamble, to avoid the proliferation of es. TBT measu res are bilateral motiv agreements and to promote the use of harmonized international standards of SPS ‣ The Agreement defines its scope as a function of the objective of the measure, i.e. food safety and animal and plant health protection, as opposed to the type of measure. Consequently, products, processes and production methods are equally covered by its provisions.For example, slaughterhouses must comply with strict sanitary standards if the end-users are to receivesafe meat products. Any discrimination among foreign suppliers must be justified on the basis of theiranimal and plant health conditions.Unlike the AoA, the SPS Agreement does not create schedules of binding obligations. ■■■
    3. 3. ■■■ 3 peter gallagher gFour defined circumstances (Annex A) ‣ 1. “Protection of human or animal life or health from risks arising from additives, contaminants, toxins or disease-causing organisms in their food”. Other human health risks, such as nutrition concerns, medical treatments, or general safety risks, do not fall within this category. ‣ 2. “Protection of human life from plant- or animal-carried diseases.” ‣ 3. “Protection of animal or plant life from the introduction of pests, diseases or disease-causing organisms.” An import ban on live cattle originating from herds infected by Bovine tuberculosis would be one example ‣ 4. “Protection of a country from damage caused by the entry, establishment or spread of pests.” That is, protection against invasive speciesThe protection of fish, wild fauna, forests and wild flora arecovered by the Agreement but the protection, for example of theenvironment as such or animal welfare are excluded. ■■■
    4. 4. ■■■ 4 peter gallagher gNature of approved SPS measuresSanitary measures may take many different forms (Annex A) such as: ‣ requiring products to come from disease-free areas or submit to quarantine, ‣ imposing specific product or process criteria, certification or inspection procedures, sampling and testing requirements, health-related labelling measures, ‣ setting of permissible maximum levels of pesticide residues, or permitted use of only certain additives in food.Measures may be imposed on non-agricultural products; e.g. restrictions on paints used on dishes to ensure thatfood is not contaminated are also SPS measures. Although the measure may be imposed outside the territory of theimporting country — e.g. processing requirements or certification — its purpose must be to protect health within theterritory of the importing country.Members have the right to take SPS measures (other than the application of an international standard) based onscientific evidence but the qualifications that apply to the general exceptions of GATT Art. XX(b) also apply to SPSmeasures. Measures must be ‣ no more trade restrictive than necessary to protect health, ‣ not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail ‣ must not be applied in a manner which would constitute a disguised restriction on international trade. ■■■
    5. 5. ■■■ 5 peter gallagher g Contents and the “three Sisters”PreambleArt. 1 General Provisions FAO/WHO Codex Alimentarius The Codex Alimentarius Commission, based in Rome, is a subsidiary organ of the FoodArt. 2 Basic Rights and Obligations and Agriculture Organization of the United Nations (FAO) and the World HealthArt. 3 Harmonization Organization (WHO). The SPS Agreement designates Codex as the authority for all matters related to international food safety evaluation and harmonization. Several Codex activitiesArt. 4 Equivalence relate to the evaluation of food-borne hazards, although Codex also develops non-health Assessment of Risk and Determination of the Appropriate Level of related technical food standards, like nutrition, composition, and quality standards. CodexArt. 5 develops scientific methodologies, concepts and standards to be used world-wide for food Sanitary or Phytosanitary Protection additives, microbiological contaminants, veterinary drug and pesticide residues to be usedArt. 6 Adaptation to Regional Conditions, Including Pest- or Disease- Free world-wide. It has also developed useful references like the "General Principles on Food Areas and Areas of Low Pest or Disease Prevalence Hygiene" and the "General Principles on Meat Hygiene".Art. 7 TransparencyArt. 8 Control, Inspection and Approval Procedures World Organization for Animal Health (OIE) The OIEs "International Animal Health Code" and "Aquatic Animal Health Code" offerArt. 9 Technical Assistance international animal health standards and procedures that are periodically amended to take into account the latest scientific research. The OIE develops manuals on: animal diseases;Art. 10 Special and Differential Treatment standards for diagnosis, vaccination, epidemiological surveillance, disease control andArt. 11 Consultations and Dispute Settlement eradication; procedures such as disinfection and certification; and laboratory equipment.Art. 12 Administration International Plant Protection Convention (IPPC)Art. 13 Implementation A subsidiary body of the FAO. Its main objectives are to take specific actions to prevent theArt. 14 Final Provisions introduction and spread of plant pests, and to promote measures for pest control, including information exchange. It has developed region-specific lists of plant pests. The IPPCAnnex A Definitions develops international plant import health standards, principally on quarantine pests, a "Glossary of Phytosanitary Terms", basic principles governing phytosanitary laws andAnnex B Transparency of SPS Regulations regulations, and harmonized plant quarantine procedures.Annex C Control, Inspection and Approval Procedures
    6. 6. ■■■ 6 peter gallagher gHarmonization ‣ Before the entry into force of the WTO, international standards, guidelines, recommendations and other advisory texts could be adopted by governments on a voluntary basis. ‣ The SPS Agreement confers a new status on standards promulgated the the “three sisters” that, however, remain voluntary. Members adopting them are presumed to be in full compliance with the SPS Agreement. ‣ A Member may decide to establish protection levels that exceed international standards if there is a scientific justification or if it determines that the standard does not meet its acceptable level of protection. ‣ When a Member decides not to use an international standard, however, its measure must be based on a proper risk assessment and is subject to a range of other conditions set out in detail in Article 5 of the Agreement ■■■
    7. 7. ■■■ 7 peter gallagher gEquivalenceThe Agreement recognizes that there may be different waysof ensuring SPS protection in different countries. ‣ It provides that WTO Members should accept anothers procedures as equivalent whenever the same level of human, animal or plant health protection is achieved. ‣ Agreements acknowledging the equivalence of health protection measures enforced by different approaches must be negotiated on a bilateral or regional basis.The exporting country bears the burden of demonstrating that its sanitary treatments are equivalent tothose of the importing country. The exporter must supply relevant information that the importer mayneed to form its judgement, including access to its health authorities, facilities, equipment andprocedures. ■■■
    8. 8. ■■■ 8 peter gallagher gRisk assessment ‣ Risk assessments may be qualitative or quantitative. ‣ Members must establish SPS measures on the basis of an evaluation of the actual risks involved including an economic evaluation of alternative risk management strategies.“...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- ordisease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment.” (Article 5.2)“...Members shall take into account as relevant economic factors: the potential damage in terms of loss of productionor sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication inthe territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limitingrisks.” (5.3) ‣ Members must not use more-restrictive measures than necessary“...Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level ofsanitary or phytosanitary protection, taking into account technical and economic feasibility” (5.6) ‣ The WTO Appellate body has directed panels to defer to Members’ judgement on the ALOP but in Australia-Apples it required the Panel to make it’s own assessment of whether a measure was more trade restrictive than necessary ■■■
    9. 9. ■■■ 9 peter gallagher gThe “appropriate level of protection”Members have the right to determine an appropriate level of healthprotection (ALOP) ‣ In effect a level of “risk aversion” ‣ Should be a reflection of health protection, not a means to protect domestic producers from competition ‣ May vary according to circumstances (e.g. between plants and animals or fish health) ‣ Where the health risks are similar, the acceptable level of protection should be similar, if any distinction would result in discrimination or a disguised restriction on international trade. Risk = probability of occurrence * impact of the eventOnce the government has determined its appropriate level of sanitary and phytosanitaryprotection, it must not choose a measure that is more stringent or more trade-restrictivethan needed to moderate the risk down to the ALOP. ■■■
    10. 10. ■ ■ ■ 10 peter gallagher g“Provisional” measures‣ The Agreement (Art. 5 (7)) permits Members to take “provisional” measures based on available “pertinent information” in cases of emergency and when sufficient scientific evidence does not yet exist to support definitive measures.For example, following the BSE scare in 1996, and in the absence of sufficient scientific evidence,several Members introduced emergency import bans.‣ This is not an endorsement of the “precautionary principle” (whatever that is).‣ The emergency measures must only be provisional.In Japan - Agricultural Products II, the Appellate Body said: “... such a provisionalmeasure may not be maintained unless the Member which adopted the measure: (1) ‘seek[s] to obtain the additional information necessary for a more objective assessment of risk’; and (2) ‘review[s] the … measure accordingly within a reasonable period of time’.   These four requirements are clearly cumulative in nature and are equally important for the purpose of determining consistency with this provision. Whenever one of these four requirements is not met, the measure at issue is inconsistent with Article 5.7.” ■■■
    11. 11. ■ ■ ■ 11 peter gallagher gRegionalization (Art. 6) ‣ Governments should recognize disease- or pest-free areas that might correspond to only part of a country or might cover parts of several countries.Product requirements should be adapted to suit those regions. ‣ The burden of demonstrating disease-free status falls on the exporting Member (as with the principle of equivalence). The exporting country must allow experts from the importing country to inspect the area concerned and the controls in place to check the disease from spreading.The OIE has developed procedures for evaluating disease-free status ■■■
    12. 12. ■ ■ ■ 12 peter gallagher gTransparency ‣ National Notification AuthorityEach WTO Member must designate a national central government authority as responsible for the implementation ofthe notification procedures. Whenever a government intends to put into effect a new sanitary or phytosanitaryregulation, or modify an existing law that may restrict trade and differs from an international standard, it must notifythe WTO Secretariat. ‣ National Enquiry PointGovernments must also set up national "enquiry points" whose task is to provide to their trading partners anyinformation requested on the application of food safety and animal and plant health regulations, the existence ofequivalence agreements, or information on risk assessment procedures and decisions. ■■■
    13. 13. ■ ■ ■ 13 peter gallagher gNotification ‣ Regular procedures: Members must inform their trading partners, through the WTO Secretariat, of proposed new or modified national sanitary and phytosanitary regulations in time to give trading partners 60 days in which to comment on proposed regulations.The notification must specify the competent authorities and the agency responsible for promulgating theregulation and the products covered. Members must indicate whether a relevant international standardexists, whether a measure is based on such a standard, and if not, how it deviates from it. Membersmust provide as part of the notification the full title and a brief abstract of the regulation as well as anindication of the language in which the document is available and contact details for the agency handlingcomments. ‣ Emergency procedures: A notification must be made upon implementation, using the special format developed for this purpose.The nature of the urgent problem must be clearly stated, and a period for its application must beidentified. Comments may still be received from WTO Members concerned. Eventually, an emergencymeasure must be supported by an appropriate risk assessment and the government must stand ready toprovide a scientific justification for maintaining the measure. ■■■
    14. 14. ■ ■ ■ 14 peter gallagher gDispute settlement ‣ The SPS Agreement is subject to the WTO Dispute Settlement procedures.During the course of the deliberations over a sanitary or phytosanitary trade measure, the panel mayseek advice on scientific or technical issues, as it sees appropriate (many have). Such advice can besought from individual experts, a group of technical experts, or a relevant international organization. ‣ Alternative dispute settlement proceduresSome of the international standard-setting organizations such as the IPPC, have their own proceduresthrough which countries can settle their differences. The SPS Agreement does not limit the right ofgovernments to use these dispute settlement procedures rather than those of the WTO. Similarly,Members of a regional organization, such as NAFTA, could choose to take SPS-related matters to thatagreement’s dispute settlement mechanisms ‣ Since 1 January 1995, almost 40 cases involving sanitary and phytosanitary measures have reached the Panel stage of adjudication (6 involving Australia as a respondent) ■■■
    15. 15. ■ ■ ■ 15 peter gallagher gDeveloping members ‣ The SPS Committee may grant longer time-frames for compliance with some or all of the obligations under the Agreement upon request. ‣ The Agreement calls for technical assistance to developing country Members to enable them to strengthen their food safety and animal and plant health protection. Members are encouraged to provide technical assistance on a bilateral basis or through other international organizations. ■■■

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