Operating the SPS notification authority

2.2 Making an SPS notification

What to notify

SPS measures and regulations¹

The SPS Agreement states that countries should notify changes to their SPS measures. The subject areas covered by the term “SPS measure” are defined quite specifically (SPS Agreement, Annex A, paragraph 1, see also Box 3). SPS measures are any measure applied:

1. to protect human or animal life or health from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;
    
2. to protect human life or health from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests;
    
3. to protect animal or plant life or health from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; or
    
4. to prevent or limit other damage from the entry, establishment or spread of pests.
     

The agreement states that:

“Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety.”

In Annex B of the SPS Agreement the term “regulation” is also used. The scope of what constitutes a regulation is quite broad. SPS regulations are defined as “sanitary and phytosanitary measures such as laws, decrees or ordinances that are applicable generally” (SPS Agreement, Annex B, footnote 5).

The SPS Agreement requires countries to notify the WTO of proposed new sanitary and phytosanitary regulations or modifications to existing regulations whenever:

1. either an international standard, guideline or recommendation does not exist, or;
     
2. the content of a proposed SPS regulation is not substantially the same as the content of an international standard, guideline or recommendation,
    
3. and, in both cases, if;
     
4. the regulation may have a significant effect on trade of other countries.
     

For the sake of improved transparency, some countries also notify regulations which conform to international standards, a practice which is welcomed.

All proposed SPS measures which fit the above-mentioned criteria, including generic standards and measures affecting bilateral or plurilateral trade, should be notified to the WTO. An example of a measure affecting only bilateral trade is contained in a notification from Colombia on restrictions of fresh fruit from Brazil.

When a regulation contains both SPS or TBT elements, it should be notified according to both the SPS and TBT Agreements, preferably with an indication of which parts of the regulation fall under SPS (e.g., a food safety measure) and which parts fall under the TBT Agreement (e.g., quality or compositional requirements). An illustration of the distinction between SPS and TBT measures is contained in Box 3.

The TBT Agreement is similar to the SPS Agreement in its content and format. Both agreements promote the use of international standards (harmonization) and the principle of equivalence in the development of non-tariff measures. In implementing these measures, both agreements promote the concepts of non-discrimination and the avoidance of unnecessary obstacles to trade. The transparency provisions are also very similar. The difference between the agreements is primarily one of coverage and the underlying basis for the application of a measure. In general terms, under the TBT Agreement a measure has to be based on a legitimate objective. For example, governments may impose special requirements on imports of armaments (national security) or restrict imports of endangered species (environment), or mandate that labels on cigarette packs should warn consumers of the hazards of the smoking (human health). These are all examples of legitimate objectives which governments use as a basis for requirements on imported products. These measures would not fall within the scope of the SPS Agreement as they do not meet the definition of an SPS measure as set out in Box 3.

 

International standard, guideline or recommendation

What constitutes an “international standard, guideline and recommendation” is also quite specifically defined (SPS Agreement, Annex A, paragraph 3):

For food safety:

1. the standards, guidelines and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice;

For animal health and zoonoses:

2. the standards, guidelines and recommendations developed under the auspices of the Office International des Epizooties (the OIE);

For plant health:

3. the international standards, guidelines and recommendations developed under the auspices of the Secretariat of the International Plant Protection Convention (IPPC) in cooperation with regional organizations operating within the framework of IPPC.

No other standard-setting bodies have yet been recognized by the SPS committee for matters not covered by the above organizations, although this possibility is allowed under the agreement.

Note that the criterion for notification relating to international standards, guidelines or recommendations is whether the content of a proposed SPS regulation is substantially the same as the content of an international standard, guideline or recommendation. So even if the health objective, or level of protection achieved, is the same as that delivered by the standard, if the measures required are not substantially the same as those in the international standard it still has to be notified.

 

Significant effect on trade

The concept of “significant effect on trade of other Members” may refer to the effect on trade:

1. of one sanitary or phytosanitary regulation only or of various sanitary or phytosanitary regulations in combination;
    
2. in a specific product, group of products or products in general; and
     
3. between two or more countries (so strictly bilateral SPS regulations must still be notified if they meet other criteria).
     

The concept of a significant effect on trade of other countries includes both import-enhancing and import-reducing effects on trade, as long as such effects are significant. This means that SPS regulations that facilitate trade must also be notified.

When assessing whether the SPS regulation may have a significant effect on trade, countries should take into account, using relevant information that is available, such elements as:

1. the value or other importance of imports in respect of the importing and/or exporting country countries concerned, whether from other countries individually or collectively;
     
2. the potential development of such imports, and;
     
3. difficulties for producers in other countries to comply with the proposed SPS regulations.
     

If you are not certain whether a proposed SPS measure will affect international trade it is recommended that you notify the measure, for the sake of increased transparency.

1. The SPS Agreement uses the terms “measures” and “regulations” somewhat interchangeably. Readers should note that regardless of the term used, the Agreement is referring to any sanitary or phytosanitary measure such as laws, decrees, or ordinances applied to protection human, animal or plant life or health as defined under paragraph 1 of Annex A to the SPS Agreement. back to text