Background Paper
CODEX AND THE WTO
Should disputes arise between member governments regarding the
application of agreements such as the SPS or TBT, parties have recourse
to the procedures for dispute settlement under the 1994 Dispute
Settlement Understanding (DSU) (Annex 2 to the General Agreement
on Tariffs and Trade 1994). Article 3 of the DSU outlines the function
of the dispute settlement system, which is to preserve the rights
and obligations of Members under the covered agreements and to clarify
the existing provisions of those agreements in accordance with customary
rules of interpretation of public international law. Thus, the source
of law under consideration in dispute settlement is the texts of
the agreements themselves, including any explicit references to
Codex guidelines, standards, or recommendations.
While the WTO itself is not responsible for developing food safety
standards, it does have the authority to place restrictions on the
use of food safety measures as unjustified or disguised barriers
to trade. The WTO accomplishes this task primarily through the SPS
Agreement, although the TBT Agreement also addresses food quality
requirements and other food safety issues not covered by the SPS
Agreement. As noted earlier, the trade implications of the development
of Codex guidelines or recommendations on biotech labeling depend
in part on the referenced role of Codex guidelines in the relevant
international food safety agreements.
The role of Codex standards, guidelines, and recommendations in
the application of SPS measures is referred to several times throughout
the Agreement. Perhaps most importantly, in Article 3, which addresses
the harmonization of phytosanitary standards, the SPS reads as follows:
To harmonize sanitary and phytosanitary measures on as wide a basis
as possible, Members shall base their sanitary or phytosanitary
measures on international standards, guidelines, or recommendations
where they exist, except as otherwise provided for in the Agreement,
and in particular, paragraph 3.[1]
Sanitary or Phytosanitary measure which conform to international
standards, guidelines, or recommendations shall be deemed necessary
to protect human, animal, or plant life or health, and presumes
to be consistent with the relevant provisions of this Agreement
and of GATT 1994.
International standards, guidelines, and recommendations for food
safety are further defined in Annex A to the SPS Agreement as “the
standards, guidelines, and recommendations established by the Codex
Alimentarius Commission relating to food additives, veterinary drugs
and pesticide residues, contaminants, methods of analysis and sampling,
and codes and guidelines of hygienic practice.”
Thus, if Codex were to adopt undefined and inconsistent standards
or guidelines, all Member nations would be given license to adopt
the same or similar standards as national law and implement those
standards, without risk of violating either the SPS or TBT Agreements.
The WTO will almost certainly rule in accordance with Codex standards
in any potential dispute settlement proceeding, regardless of the
validity or the value of the standard; whether its motive is scientific
or political, or whether or not the burdens on consumers, producers
and regulators are onerous or not.
An Overview of Some Codex Committees and Relevant Issues
Codex Committee on Food Labeling (CCFL)
Host Country- Canada
Next Meeting – May 6-10, 2002 Halifax
Bolivia Participation - None
Terms of Reference- a. To draft provisions on labeling applicable
to all foods;
To consider, and amend if necessary, and endorse draft specific
provisions on labeling prepared by the Codex Committees drafting
standards, codes of practice and guidelines;
To study specific labeling provisions assigned to it by the Commission;
To study problems associated with the advertisement of food with
particular reference to claims and misleading descriptions.
Trade Concerns: Existing international trade rules under the WTO
Agreement on Technical Barriers to Trade (TBT) prohibit technical
regulations (including labeling requirements) from creating unnecessary
obstacles to international trade. Such regulations may not be more
restrictive than necessary to fulfill certain identified legitimate
objectives, which include national security, prevention of deceptive
practices or protection of human health and safety.
CCFL Proposals Which Are TBTs:
Mandatory Country of Origin Labeling-
A recommendation was presented by the United Kingdom (UK) Government
to start new work to amend the General Standard for Prepackaged
Foods, to require detailed labeling of the country of origin of
prepackaged foods as well as their ingredients.
TBT Concern
The existing Codex general standard already requires country of
origin labeling in cases where its omission would mislead or deceive
the consumer. This requirement is appropriately focused on the objective
of preventing consumer deception. Most countries, including the
United States, already have in place regulatory requirements for
country of origin labeling of food products. Mandating country of
origin labeling across the board or expanding it to include ingredients
would be burdensome, impractical, and provide no additional benefit
to the consumer. Country of origin labeling has no relation to public
health or food safety, and conveys no useful information to the
consumer on health or safety.
Mandatory Quantitative Ingredient Declaration-
The consumer group IACFO recommended that CCFL amend the Codex General
Standard for Labeling of Prepackaged Foods to require mandatory
percentage labeling of all ingredients that represents more than
5 percent of the final product.
TBT Concern
Product composition is sufficiently declared through full ingredient
labeling in order of predominance by weight. Mandatory percentage
ingredient labeling as proposed requires the disclosure of proprietary
information (including revealing trademarked recipes,) distracts
from material information related to product safety and nutritional
content, and has the potential to confuse and mislead consumers
who have no numerical concept of the appropriate ingredient percentage
in packaged food products. This will be especially confusing in
international trade where cultural interest and expectations vary
widely.
The technical practicalities of accurate representation impose
a significant economic burden on the food industry while simultaneously
imposing onerous implementation and enforcement burdens on regulatory
authorities. The ongoing technical difficulties and cost inherent
in achieving accurate declarations will result in reducing the manufactures’
flexibility to respond to seasonal and market fluctuations for available
raw materials that will allow the highest quality product at the
lowest costs. Costs to consumers will be increased. In addition,
some manufacturers will remove products from markets requiring percentage
labeling to protect formula information and avoid “copy cat”
competition. This will reduce selection for consumers and market
competition without increasing safety quality or consumer confidence.
Mandatory Biotechnology Labeling (Based on Process Production Method)
CCFL has, for the past five years, deliberated without consensus
regarding the issue of mandatory labeling of biotech food products.
Trade Concerns
PPM Labeling is a technical barrier to trade.
The debate has taken place in an environment, for several years,
that has effectively eliminated any opportunity for sensible discussion
of practical issues, such as cost to developing countries, difficulty
of enforcement, potential harm to the future of biotechnology and
loss of its benefits to developing nations, barriers to trade or
any of the other myriad disadvantages to those countries least able
to afford them.
Codex has willfully ignored clear and incontrovertible evidence
that biotech corn and soy actually save lives, because they are
far more resistant to life-threatening mycotoxins, aflatoxins and
fusairium than conventional varieties. These issues have never once
been raised in the labeling discussion, either by the countries
promoting labeling, or by the activist groups that are spurring
them on.
As they are presently described in the CCFL Labeling Task Force
guidelines document, Codex standards for the labeling of foods produced
from biotechnology, absent some objective, affordable and accurate
mechanism for testing and identity preservation, will cause confusion
in the international food trade. This is because a set of optional,
or menu-style standards or guidelines, provide no standard or guidance
at all.
In addition, the cost and burdens will be distributed from one
end of the food chain to another, around the globe, with the greatest
impact upon developing nations without the resources or capacity
to enforce.
No increase either in food safety or in consumer information will
result from any of the labeling proposals set forth in the Task
Force Document. Nor have global consumers demonstrated that they
are willing to pay as much as 10% more for food bearing such labels.
Deviating from the long-held and scientifically justifiable standard
of substantial equivalence will result in irrevocable damage, not
only to the future viability of agricultural biotechnology, it risks
serious disruption of the global trade in food and commodities.
Straying from science-based standards will exact a cost in human
life. If the market for biotech products dries up as a result of
the misinformation and fear that will inevitably result from these
rash and unnecessary labeling devices, and if farmers seek growing
biotech grain in response, many lives will be lost that could have
been saved, in parts of the world where the need for safe and wholesome
food is the greatest.
Codex Committee on General Principles (CCGP)
Host Country- France
Next Meeting- April 15-19, 2002 Paris
Bolivia Participation - Yes
Terms of Reference- To deal with such procedural and general matters
as are referred to it by the Codex Alimentarius Commission.
Trade Concerns- This Committee is a “catch all” of many
Codex issues that cannot or have not been resolved in other Committees.
The EU members use this Committee very successfully to export some
of their trade barriers internationally and to “legitimize”
many of their barriers to trade. Some of the most trade contentious
issues that have been introduced at CCGP are the so called “Precautionary
Principle,” considerations of factors other than science in
Codex decision making (i.e. animal welfare, socioeconomic factors)
and the EU’s concept of traceability.
Codex Alimentarius Executive Committee Meeting
Next Meeting – June 26-28, 2002 Rome
Host Country - rotates between Rome and Geneva
Terms of Reference-This is a deliberative body comprising of member
governments, only (no NGO observers). Consumer NGOs have strongly
urged the Commission to open the meeting to NGOs, while industry
NGOs have preferred the meeting to operate government to government
only for the sake of open dialogue and expedient decision making
which would be other wise hindered with NGO intervention and observation.
Codex Alimentarius Commission
Next Meeting – June 30-July 5 Rome
Host Country - rotates between Rome and Geneva
Bolivia Participation - Yes
Terms of Reference-The decision making body of the Codex Alimentarius.
Codex standards proposed for adoption go to the Commission for final
adoption. Other proposals go to the Commission for reference to
other Committees or decision for new work.
Trade Concerns-As evidenced by the recently concluded 2001 Meeting,
the EU members attempted to advance many Codex standards with no
basis on sound science at this meeting. Among those were additive
and contaminant levels which conflicted with scientific review and
recommendations; the advancement of the so called “precautionary
principle”; attempt to usurp Codex role in establishing international
food standards by referencing the Biosafety Protocol and “relevant
multilateral organizations” into Codex decision making.
Ad Hoc Intergovernmental Task Force on Biotechnology
Next Meeting – March 4-8, 2002 Kyoto
Host Country –Japan
Bolivia Participation - No
Terms of Reference - Its mandate is to develop standards, guidelines
or recommendations, as appropriate, for foods derived from biotechnology.
It will coordinate, and closely collaborate, as necessary, with
appropriate Codex Committees within their mandate as relates to
foods derived from biotechnology. It will take full account of existing
work carried out by national authorities, FAO, WHO, other international
organizations and other relevant international fora. The Task Force
shall complete its work within four years.
Trade Concerns-The EU concept of “traceability” was
introduced at this Task Force.
Codex Committee on Food Import and Export Inspection and Certification
Systems (CCFICS)
Next Meeting – February 25 – March 1, 2002 Perth
Host Country – Australia
Bolivia Participation - No
Terms of Reference –To develop principles and guidelines for
food import and export certification systems with a view to harmonizing
methods and procedures which protect the health of consumers, ensuring
fair trading practices and facilitate international trade in foodstuffs;
To develop principles and criteria with respect to format, declarations
and language of such official certificates as countries may require
with a view towards international harmonization.
Trade Concerns –This Committee does a pretty good job of facilitating
trade by harmonizing import and export certificates and ensuring
mutual international acceptance.
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