PREPARATIONS FOR THE 1999 MINISTERIAL CONFERENCE
Proposal for Reforms to the Agreement on the Application of Sanitary and Phytosanitary Measures
The Center for Science in the Public Interest(1)
November 5, 1999
Summary of Proposals
1. To reform the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) to
provide that: (a) A nation may maintain a nondiscriminatory health standard, when the scientific
evidence is insufficient to make an assessment of a risk, until such time that a country seeking to
export to that nation demonstrates that the standard is scientifically unjustified, (b) Standards
developed by the Codex Alimentarius Commission (Codex) would have international legal
significance only if the decision to adopt them was virtually unanimous other Codex actions
would be considered non-binding recommendations or guidelines, and (c) Developed countries
must provide increased technical assistance to developing countries.
Adoption of Standards in Cases of Scientific Uncertainty
2. Since 1994, the World Trade Organization (WTO) may force a nation maintaining a health and
safety standard to choose between lowering its regulatory requirements(2) or paying reparations to the
3. A national health standard is illegal under the SPS Agreement if 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)
4. Article 5.7 currently provides that in cases where the scientific evidence is insufficient to permit
a determination of risk, a nation may only provisionally adopt a health measure and that the
burden of proof is on that nation to obtain the additional information necessary for a more
objective assessment of risk within a reasonable period of time. The suggested reform would
delete provisionally and would shift the burden of obtaining additional information to the country
challenging the validity of the health standard.
5. The three WTO decisions applying the SPS illustrate the difficulty of providing sufficient
scientific evidence to satisfy these requirements as currently specified in 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.(6)
- In October 1998 the Appellate Body of the WTO affirmed a Panel decision sustaining a
complaint by Canada that Australias ban on imported, uncooked salmon violated the SPS
Agreement.(7) The Appellate Body said that, while Australia was free to set a zero risk
standard of protection from exotic diseases entering the country and affecting Australian
salmon fisheries, Australias ban was illegal because Australia had not conducted the type of
risk assessment required by Article 5.
- In February 1999 the Appellate Body of the WTO affirmed a panel decision sustaining a
complaint by the United States against Japans testing of certain types of imported fruit to
see whether they are free of codling moths.(8) The Appellate Body said that Japans testing
requirements for apples, cherries, nectarines, and walnuts were not supported by the
sufficient scientific evidence required by Article 2 of the SPS Agreement and that Japan
had not sought additional scientific information within a reasonable time, as required by
Article 5.7 of the SPS Agreement. The Appellate Body also found that Japans testing
requirements for apricots, pears, plums, and quince were not based on a proper risk
6. Other cases that have not reached the stage of a formal dispute settlement proceeding, also
demonstrate the difficulty that governments face in maintaining legitimate, nondiscriminatory health
and safety standards in light of the current wording of the SPS Agreement. For example, the United
States Trade Representative (USTR) seeking to promote United States sales of antibiotics used
as growth promoters in livestock, and meat and poultry produced with the aid of such drugs wrote
to the European Commission claiming that the EUs ban on the use of human-use antibiotics in
livestock feed might be illegal under the SPS Agreement because the EU had not done a proper
risk assessment. The USTR made this statement even though: a) the United States Centers for
Disease Control had concluded that the EU ban is scientifically justifiable and protects the public
health; b) the World Health Organization had recommended in 1997 that antibiotics used to treat
humans should not also be used to promote animal growth; c) 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.
7. To ensure that national health standards are not weakened in the name of facilitating
international trade, Article 5.7 of the SPS Agreement should be amended to provide that when the
scientific evidence is insufficient to make a determination of risk, a nation may maintain a
nondiscriminatory health standard until a country seeking to export to the nation demonstrates that
the standard is scientifically unjustified.
Treatment of Codex Standards, Recommendations, and Guidelines
8. In applying the SPS Agreement, the WTO relies heavily on food standards, guidelines, or
recommendations set by a United Nations affiliated organization called the Codex Alimentarius
Commission (Codex).(9) The SPS Agreement provides that a national health standard for food is
presumptively legal if it conforms to standards, guidelines, or recommendations established by
Codex. A national health or safety standard that provides a greater level of protection than Codex
standards, guidelines, or recommendations, can be considered a trade barrier unless that the country
has done a proper risk assessment and there is a scientific justification for exceeding the level of
protection provided by Codex.(10)
9. These provisions have created problems for governments seeking to maintain high health and
safety standards. For example, Codex has approved standards that are weaker than those favored by
- At its 1995 meeting, Codex approved the use of certain growth hormones (by a vote of 33 to
29 with seven abstentions) even though the EU believed that the use of such hormones could
lead to health problems. The Codex decision was a factor in the WTOs declaring in 1998
that the EUs moratorium on the use of such hormones in cattle was scientifically unjustified
and a barrier to trade.
- At its 1999 meeting Codex established a maximum level for aflatoxin a naturally
occurring carcinogen in mold that grows on peanuts of 15 ug/kg. This level was higher
than the level sought by the EU and represented a compromise with the United States Food
and Drug Administration (FDA), which permits greater amounts of aflatoxin in peanuts
intended for further processing.
10. Codex has also approved standards that are weaker than those favored by the United States. At
its June 1999 meeting, Codex approved:
- a standard for natural mineral water that permits higher levels of lead and other contaminants
than the U.S. FDA now allows in bottled water; and
- standards setting maximum residue levels for methyl parathion (and other pesticides) even
though the United States Environmental Protection Agency (as mandated under United
States law) has banned methyl parathion for fruits and vegetables because of its potential
adverse effects on children.
11. To help prevent the adoption by Codex of standards, guidelines, and recommendations that
provide less protection to consumers than national standards, Article 3 of the SPS Agreement should
be clarified to provide that a decision by Codex would have international legal significance only if it
is virtually unanimous; other Codex decisions would be simply advisory.
12. In his October 11, 1999 draft declaration for the WTOs Ministerial Meeting in Seattle on
November 30-December 3, the Chairman of the WTOs General Council Ali Mchumo suggested
that the phrase international standards, guidelines or recommendations in Article 3 needs to be
revised so that a differentiation is introduced between mandatory international standards and
voluntary international guidelines/recommendations.
Increased Assistance to Developing Countries
13. To assist less developed countries that may not be able to meet standards favored by developed
countries, Article 9 of the SPS should be modified to require increased technical assistance to
developing countries that may have difficulty meeting standards maintained by developed countries.
The words may in Article 9.1 should be changed to shall. The word consider in Article 9.2
should be deleted and the word providing should be changed to provide.
14. Article 10 of the SPS should be amended to clarify that special and deferential treatment shall
primarily be provided in the form of increased technical assistance as described in Article 9.
15. These modifications to the SPS Agreement will help ensure that developed countries are
required to provide developing countries with technical assistance and that technical difficulties
faced by developing countries do not create barriers to compliance with health and safety standards.
1. The Center for Science in the Public Interest (CSPI), a nonprofit organization based in
Washington, D.C., is supported by approximately one million members in the United States and
Canada who subscribe to its Nutrition Action Healthletter. CSPI has been working to improve
the publics health through better nutrition and safer food since 1971. As a founding member of
the International Association of Consumer Food Organizations along with the Japan Offspring
Fund and the Food Commission UK CSPI participated as an observer at both the June 1999
and the 1997 meeting of the Codex Alimentarius Commission and at the International Food
Trade Beyond the Year 2000 conference in October 1999 that was sponsored by the Food and
Agriculture Organization, the World Health Organization, and the World Trade Organization.
2. The United States has elected to change its regulations after losing WTO decisions. The
Environmental Protection Agency changed its Clean Air Act regulations for oil refineries after
Venezuela successfully challenged them. The U.S. 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 them. These cases did not involve the
SPS Agreement, but indicate what action the U. S. government might take if it lost a SPS case.
3. The compensation may take the form of a monetary penalty or permitting the exporting
country to impose additional trade restrictions on exports from the nation that is maintaining the
more protective health standard.
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. 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 goods imported from the EU.
7. Australia Measures Affecting Importation of Salmon (October 1998).
8. Japan Measures Affecting Agricultural Products (February 1999)
9. For animal health and zoonoses, the SPS Agreement refers to standards, guidelines,
and recommendations developed by the International Office of Epizootics; for plant health the
SPS Agreement refers to standards, guidelines, and recommendations developed by the
Secretariat of the International Plant Protection Convention.
10. See Articles 3.2 and 3.3 of the SPS Agreement.