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SPS AGREEMENT TRAINING MODULE: CHAPTER 5

Implementation — Dispute Settlement

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5.5 The Variety Testing Case

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Variety Testing — the facts at a glance
Official name:	Japan — Measures Affecting Agricultural Products (WT/DS76)
Parties:	Complainant: United States Respondent: Japan Third Parties: Brazil, EC, Hungary
Under dispute:	Japan’s requirement to test each variety of certain agricultural products (apples, cherries, peaches, walnuts, apricots, pears, plums and quinces) for the efficacy of treatment against codling moths. This is a pest that does not occur in Japan, and whose introduction has the potential to cause serious damage. The United States claimed that it was not necessary to test each variety of a fruit for the efficacy of the treatment, and that this varietal testing requirement was unnecessarily burdensome.
Panel:	Mr. Kari Bergholm, Chairman (Finland) Mr. Germain Denis (Canada) Mr. Eirikur Einarsson (Iceland)
Experts consulted:	Dr. Neil Heather, Entomologist, University of Queensland, Corinda, Australia Dr. Patrick Ducom, Fumigation Expert, Lormont, France Mr. Robert Taylor, Fumigation Specialist, Natural Resources Institute, Chatham, United Kingdom
Calendar:	Panel established: 18 November 1997 Panel report issued: 27 October 1998 Appellate Body report issued: 22 February 1999 Reports adopted by DSB: 19 March 1999 Mutually agreed deadline for implementation: 31 December 1999 Mutually agreed solution announced in September 2001.

Variety Testing — the findings at a glance

Measure at issue: Japan’s requirement to test each variety of certain agricultural products (apples, cherries, peaches, walnuts, apricots, pears, plums and quinces) for the efficacy of treatment against codling moths. The United States claimed that it was not necessary to test each variety of a fruit for the efficacy of the treatment.

Panel findings:

the variety testing requirement violated Article 2.2 since there was no rational relationship between the scientific evidence submitted by Japan and the measure.
the exception provided in Article 5.7 did not apply. Japan invoked this article, which allows Members to take provisional measures where scientific information is insufficient. However, the Panel found no evidence that Japan had actively sought to obtain additional information in order to review its measure within a reasonable period of time, as required by Article 5.7.
the variety testing requirement violated Article 5.6 since it was more trade-restrictive than required to achieve Japan’s appropriate level of protection. The Panel was unable to rule on product-by-product testing, an alternative proposed by the US, since it did not have sufficient evidence to decide whether this method achieved Japan’s appropriate level of protection. But the Panel considered another testing method related to sorption levels as a less trade-restrictive alternative.
the measure violated Article 7 and Annex B. The Panel found the variety testing requirement should have been published although the requirement was not mandatory.

Appellate Body findings:

upheld the Panel’s finding on Article 2.2 that the measure was not based on science.
upheld the Panel’s finding on Article 5.7, and noted that the length of the “reasonable period of time” had to be established on a case-by-case basis.
reversed the Panel’s finding on Article 5.6 regarding determination of sorption levels. The alternative measure had not been proposed by the US, which had the burden of proof.
upheld the Panel’s finding on Article 7 and Annex B, agreeing that the measure should have been published.

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