Introduction

Obligations under Agreement on Sanitary and Phytosanitary Measures

Specific trade concerns regarding European Union

Comment

Introduction

An ever-increasing number of sanitary and phytosanitary measures which affect the agricultural and food industries are giving rise to specific trade concerns at the World Trade Organisation (WTO).

In its most recent report on trade-related developments during the period from mid-October 2014 to mid-May 2015, the WTO noted a significant increase in the notification of new or modified sanitary and phytosanitary measures. This increase led to the expression of a record number of trade concerns at the meeting of the WTO Committee on Sanitary and Phytosanitary Measures held in Geneva from July 15 to 16 2015.

WTO member states use the committee meetings to raise and discuss concerns about regulations introduced to protect human, animal or plant life or health, including food safety measures, which they consider hinder international trade and adversely impact competitive opportunities. The types of measure discussed range from new product standards and approval processes to regulations restricting marketing and banning imports.

Obligations under Agreement on Sanitary and Phytosanitary Measures

Under the relevant WTO rules – in particular the Agreement on Sanitary and Phytosanitary Measures – WTO member states are committed to certain obligations in respect of sanitary and phytosanitary measures for the protection of human, animal or plant life or health. Such measures can be imposed only if:

  • they are necessary to protect human, animal or plant life or health;
  • they are based on scientific principles; and
  • they are not maintained without sufficient scientific evidence.

Further, these measures must be based on an appropriate assessment of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organisations. They cannot restrict trade more than is necessary to achieve the appropriate level of protection.

Specific trade concerns regarding European Union

At the July 2015 meeting WTO member states raised concerns regarding measures which they considered:

  • lacked a scientific basis;
  • would create a food approval system with serious delays and a lack of transparency; and
  • would create unnecessary barriers to international trade.

New issues that were raised for the first time included:

  • the EU approval regime for biotech products (for further details please see "Do the new EU GMO rules comply with its WTO obligations?") – the concerns were raised by Argentina, Paraguay and the United States;
  • Russia's import restriction on processed fishery products from Estonia and Latvia; and
  • China's import restrictions due to African swine fever.

Issues that had previously been reviewed, but were addressed again included:

  • the application and modification of the EU novel foods regulation (concerns raised by Peru);
  • general import restrictions due to bovine spongiform encephalopathy;
  • India's import conditions for pork and pork products;
  • the EU ban on certain vegetables from India;
  • the revised EU proposal for the categorisation of compounds as endoctrine distributors (concerns raised by the United States);
  • France's ban on bisphenol A; and
  • the European Union's regulatory measures on citrus black spot (concerns raised by South Africa).

Comment

Notifications of proposed regulatory measures affecting the agricultural and food industries are made to the WTO on a daily basis – between October 2014 and March 2015, 814 notifications were made. WTO member states are regularly put under pressure to:

  • conduct a proper impact assessment based on scientific principles;
  • consider the scientific basis for the proposed measure; and
  • examine whether less trade-restrictive, alternative measures are available.

WTO disputes are regularly initiated because of the failure of WTO member states to comply with their obligations under the Agreement on Sanitary and Phytosanitary Measures. For example, in July 2014 a panel was established at the request of the European Union to review measures imposed by Russia on live pigs and pork products.

Monitoring such notifications and identifying new measures that unnecessarily restrict international trade have proven to be effective ways for producers of agricultural and food products and their representative associations to alert their governments and have their concerns addressed at the WTO and/or in bilateral and regional trade forums.

For further information on this topic please contact Charles Julien or Marcus Sohlberg at King & Spalding LLP by telephone (+41 22 591 0800) or email (cjulien@kslaw.com or msohlberg@kslaw.com). The King & Spalding LLP website can be accessed at www.kslaw.com.

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