SPS Issues in Globalization,Gretchen H. Stanton Senior Counsellor Agriculture and Commodities Division WTO,What is an SPS measure? SPS Agreement - Annex A,to protect:,human or animal life,risks arising from additives, contaminants, toxins or disease-causing organisms in their food, beverages, feedstuffs;,from:,human life,plant- or animal-carried diseases (zoonoses);,animal or plant life,pests, diseases, or disease-causing organisms;,a country,damage caused by the entry, establishment or spread of pests,Governments have the right to restrict international trade when it is necessary to protect human, animal or plant health however ,however, if this results in a trade dispute:,they must be able to show that there is a risk to health, based on scientific evidence, or take a provisional, “precautionary” measure they must be “consistent” in the level of health protection sought (G/SPS/15) they must use the least trade-restrictive means to achieve the level of health protection; and they must be transparent about the measures taken,Basic Provisions,1. Scientific justification - or provisional 2. Harmonization 3. Consistency 4. Equivalence 5. Disease-free areas 6. Transparency 7. Technical assistance/special treatment,Scientific justification - issues,How judge if “based on scientific principles?” What is “sufficient scientific evidence”? Whose science? Whose risk assessment? What is required in a risk assessment?,Scientific justification - interpretations,EC hormones dispute (WT/DS26 and 48)theoretical uncertainty (the uncertainty remaining because science can never provide absolute certainty that a given substance will not ever have adverse health effects) is not the kind of risk to be considered,Scientific justification - interpretations,Australia salmon dispute (WT/DS18),Three-pronged test (three cumulative requirements)1. identify the disease(s) 2. evaluate the likelihood of entry, establishment or spread 3. according to the SPS measure which might be applied,Scientific justification - interpretations,Japan Variety Testing (WT/DS76)rational relationship required between measure and scientific evidence must be determined on a case-by-case basis,Provisional measures - issues,Precaution or protectionism? When is scientific evidence “sufficient”? What is a reasonable period of time for review? How does this compare with the Precautionary Principle?,Precaution - interpretations,Japan Variety Testing (WT/DS76) Measure taken when insufficient relevant scientific information Adopted on the basis of available information Member must actively seek to obtain the necessary additional information Member must revise the measure within a reasonable period of time,Harmonization - issues,Participation of developing countries in standard-setting Are the international standards appropriate? Going beyond international standards What about national treatment?,Codex = joint FAO/WHO Codex Alimentarius Commission OIE = Office international des epizooties IPPC = International Plant Protection Convention (FAO),Harmonization,Harmonization - interpretations,EC Hormones (WT/DS26 and 48) “base on” does not mean identical to international standards countries have a right to impose more stringent requirements, but must demonstrate that based on a risk assessment,Harmonization - interpretations,Committee monitors the use of international standards - adopted procedure - G/SPS/11,Consistency - issues,Acceptable level of protection (ALOP) same as acceptable level of risk sovereign right to establish - but no country defines ALOP with precision difficult to apply ALOP consistently - and difficult to maintain consistently,Consistency - interpretation,EC Hormones and Australian salmon: Three-pronged test: 1. different appropriate levels of protection in different situations; 2. differences are “arbitrary or unjustifiable” 3. the differences result in “discrimination or a disguised restriction on international trade”,a Member should publicly express its ALOP a Member should compare levels of protection achieved by different measures it applies, to avoid arbitrary or unjustifiable distinctions each authority with responsibility for applying ALOP should be clearly aware of national policy on ALOP each competent authority should be aware of what other competent authorities are doing,Consistency - interpretation Committee guidelines (G/SPS/15),Consistency - guidelines continuedcommon approaches or consistent procedures should be used in evaluating the measures which might be applied to achieve ALOP if ALOP changes, existing measures need to be reviewed for consistency existing measures should be kept under review and revised where necessary to bring into line with current ALOP,Equivalence - issues,Scope of equivalence - systems, products, processes or measures? What is the importing countrys ALOP? Has the importing country done a risk assessment? What does “objectively demonstrate” mean - what is the standard of proof?,Equivalence - interpretation Committee guidelines (G/SPS/19),