WTO news: what’s been happening in the WTO


15–16 March 2000

SPS Committee completes draft on risk "consistency"

National authorities could soon be given WTO guidelines to help them treat risk consistently in their measures on food safety and animal and plant health. After five years of deliberation on this difficult topic, the chairperson of the WTO Sanitary and Phytosanitary (SPS) Measures Committee concluded in the committees’ 15-16 March 200 meeting that there was "fairly general agreement" on draft guidelines.

Among the issues the committee discussed at the 15-16 March meeting were: Back to top

1. Draft guidelines on consistency completed

The committee completed a final draft for guidelines on dealing with "consistency", removing remaining square brackets (signifying parts of the text which had not been agreed). Some members said they need time to look at this final draft. It will be considered for adoption at the next meeting in June.

The guidelines are not legally binding. They are intended as tools to help officials follow SPS Article 5.5 when they make decisions on levels of health protection, and adopt and implement measures on food safety, or animal or plant health.

Art. 5.5 requires countries to be consistent when they deal with risk over a range of measures and products, so as to avoid disguised protectionism for specific products. The key is the concept of the "level of protection" which measures provide for food safety, and animal and plant health. Clearly, these levels are not easy to specify, measure and compare.

The guidelines suggest means for authorities to try to deal with these difficulties. For example it suggests that when new measures are introduced or existing measures modified, the authorities could as a matter of course compare these with other measures they have adopted.

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2. EU paper on precautionary principle G/SPS/GEN/168 (See summary of points at end)

The EU presented its discussion document, which was adopted in Brussels 2 February 2000 and addressed to the EU Council and Parliament. It said this is not the last word, but a contribution to a debate that has arisen because of a need to clarify certain issues. It underscored that the principle should not be used to justify arbitrary measures.

Commenting countries:

(1) welcomed the transparency — the fact that the EU was sharing its discussion with WTO members

(2) expressed concern that this might weaken WTO rules by reducing the certainty and predictability of the rules, upset the "balance of rights and obligations" struck in the Uruguay Round (the negotiation which led to the current set of rules), and could allow every country to use precaution as an excuse for protectionism.

(3) stressed that the precautionary principle already exists in Article 5.7 of the SPS Agreement and some questioned the legal status of the EU’s interpretation.

Speakers included Hong Kong China, Australia, Canada, US, Bolivia, Chile, Brazil, Argentina, Mexico.

The EU concluded by stressing that it did not see its white paper as adding to or detracting from the SPS Agreement.

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3. Specific SPS measures and issues

Several countries informed the committee of latest developments: EU on African swine fever and avian influenza; Chile on its status as free from Classic Swine Fever and expressed optimism at discussions with the EU, US and others on recognition of this; the EU on the Belgian dioxin contamination problem (the EU said it had been cleared up and urged countries which still have restrictions to lift them).

Brazil said it is close to agreement with the EU on gelatin (BSE-related). Canada and the EU complained about Indian restrictions on bovine semen, arguing there is no scientific evidence that BSE is transmitted by semen.

Thailand welcomed the recent change in Mexico’s restrictions on Thai rice (G/SPS/N/MEX/153) but questioned why certain conditions seemed to discriminate against Thai rice (certification and fumigation at port of entry).

Argentina sought confirmation about Iceland’s market opening for some kinds of meat (G/SPS/N/ISL/1).

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4. Developing countries’ concerns

The committee agreed that its next meeting in June will include substantial discussion of the first of a list of developing countries’ concerns — the implementation of the SPS Agreement’s provisions on special and differential treatment for developing countries.

The next meeting will be on 21-22 June 2000.

NOTE: This news report has been prepared for public understanding of the work of the WTO. While all efforts have been made to ensure it is accurate, it is not an official record of the meeting.

Summary points: EU white paper on precautionary principle

(Taken from the highlighted boxes in G/SPS/GEN/168)
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  • Although the precautionary principle is not explicitly mentioned in the [EU] Treaty except in the environmental field, its scope is far wider and covers those specific circumstances where scientific evidence is insufficient, inconclusive or uncertain and there are indications through preliminary objective scientific evaluation that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the chosen level of protection .
  • Bearing in mind the very origins of the precautionary principle and its growing role in international law, and notably in the agreements of the World Trade Organisation, this principle must be duly addressed at international level in the various areas in which it is likely to be of relevance.
  • Following the example set by the other members of the WTO, the Commission considers that the Community is entitled to prescribe the level of protection, notably as regards environmental protection and human, animal and plant health, that it considers appropriate. Recourse to the precautionary principle is a central plank of Community policy. The choices made to this end will continue to influence its positions at international level, and notably at multinational level, as regards the precautionary principle.
  • Recourse to the precautionary principle presupposes:
    • identification of potentially negative effects resulting from a phenomenon, product or process;
    • a scientific evaluation of the risk which because of the insufficiency of the data, their inconclusive or imprecise nature, makes it impossible to determine with sufficient certainty the risk in question.
  • The appropriate response in a given situation is thus the result of an political decision, a function of the risk level that is "acceptable" to the society on which the risk is imposed.
  • Recourse to the precautionary principle does not necessarily mean adopting final instruments designed to produce legal effects, which are subject to judicial review.
  • The implementation of an approach based on the precautionary principle should start with a scientific evaluation, as complete as possible, and where possible, identifying at each stage the degree of scientific uncertainty.
  • An assessment of the potential consequences of inaction and of the uncertainties of the scientific evaluation should be considered by decision-makers when determining whether to trigger action based on the precautionary principle.
  • All interested parties should be involved to the fullest extent possible in the study of various risk management options that may be envisaged once the results of the scientific evaluation and/or risk assessment are available and the procedure be as transparent as possible.
  • Measures should be proportional to the desired level of protection.
  • Measures should not be discriminatory in their application.
  • Measures should be consistent with the measures already adopted in similar circumstances or using similar approaches.
  • The measures adopted presuppose examination of the benefits and costs of action and lack of action. This examination should include an economic cost/benefit analysis when this is appropriate and feasible. However, other analysis methods, such as those concerning efficacy and the socio-economic impact of the various options, may also be relevant. Besides the decision-maker may, in certain circumstances, by guided by non-economic considerations such as the protection of health.
  • The measures, although provisional, shall be maintained as long as the scientific data remain incomplete, imprecise or inconclusive and as long as the risk is considered too high to be imposed on society.
  • Maintenance of the measures depends on the development of scientific knowledge, in the light of which they should be reevaluated. This means that scientific research shall be continued with a view to obtaining more complete data.
  • Measures based on the precautionary principle shall be reexamined and if necessary modified depending on the results of the scientific research and the follow up of their impact.
  • Measures based on the precautionary principle may assign responsibility for producing the scientific evidence necessary for a comprehensive risk evaluation. Back to top
Risk and precaution Back to top

(From background briefing notes prepared for the 1999 Seattle Ministerial Conference)

The recent debate surrounding some food safety and animal health issues — including disputes in the WTO over the use of hormones in beef production and over regulations for salmon — raises the question of whether the SPS Agreement’s preference for scientific evidence goes far enough in dealing with possible risks for consumers and producers.

A phrase that has emerged in the debate is the "precautionary principle", a kind of "safety first" approach to deal with scientific uncertainty. To some extent, Article 5.7 of the SPS Agreement addresses this, but some governments have said outside the WTO that they would like the principle strengthened. However, at the time of writing no proposal had been received. It is also unclear whether this would be handled under the SPS Agreement or through some other means.

Article 5, paragraph 7 of the SPS Agreement Back to top

"In cases where relevant 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."