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Background Paper
THE IMPORTANCE OF CODEX TO THE WORLD FOOD TRADE
Although the Codex Alimentarius Commission has functioned as part
of the United Nations’ Food and Agriculture Organization since
1962, its activities have been of little more than occasional interest
to the international food trade until recent years. However, with
the advent of the World Trade Organization (WTO) and the establishment
of the North American Free Trade Agreement and other regional trading
blocs, the deliberations of Codex have become significantly more
important to the international trade interests of governments.
Increased interest in the elaboration of Codex standards, guidelines,
and recommendations may be attributed to increased international
awareness of two very practical functions of the Commission and
its numerous committees. First, developing countries lacking both
the expertise and financial resources to fully develop food regulatory
structures adequate for the protection of public health and the
free flow of goods within their own borders have become aware that
the guidance and information needed to fill in these regulatory
gaps is often made available in the Codex activities and deliberations
of delegates from more industrialized nations. Second, both producer
and consumer groups have become aware of the role that Codex has
been given in the WTO Agreements as the means by which disputes
over trade in food products may be resolved.
Increased awareness of the practical functions of Codex activities
in shaping national legislation and establishing international trade
standards has strengthened Codex’s role as the focal point
of efforts to achieve internationally harmonized food standards.
However, as the Commission’s work has continued in recent
years, many international regulatory gaps show signs of being filled
by legislation that imposes burdens on industry without demonstrable
benefits to public welfare. In their most troublesome manifestations,
some of these measures, especially recent regulations concerning
biotech food labeling, could be viewed as technical barriers to
trade.
Such an outcome would cause severe trade dislocation, even if effected
on a piecemeal basis. The creation of a maze of conflicting and
confusing regulatory certification documents and labeling requirements
in the more than 150 jurisdictions around the globe that serve to
do little more for food safety than provide at great cost, time
and expense that which the world’s food manufacturers already
do on their own initiative: test and self-certify the safety of
their products. They are bound by an enforcement mechanism far more
effective than the disapproval of one regulatory agency or another:
strict liability in tort for harm resulting from misbranded, mislabeled
or unsafe food products. Rather than add additional layers of regulation,
consumers, producers and regulators would be better served by the
development of reliable and seamless self-certification or third-party
certification mechanisms designed to provide real, tangible evidence
of proper production and handling of food to consumers.
In such a context, the economic and trade implications of the adoption
of a Codex guideline or recommendation on biotech food labeling
are numerous, given the questions of scope, application, traceability,
and documentation that are to be addressed by the drafting group.
However, the controversy surrounding many of these issues and the
corresponding likelihood of trade disputes arising based on labeling
concerns is not limited to the possible creation of non-tariff barriers
to trade. The elaboration of new Codex guidelines and recommendations
may also impact the application of international food safety agreements,
such as the WTO Agreement on the Application of Sanitary and Phytosanitary
(SPS) Measures.
For example, by accepting the Agreement Establishing the World
Trade Organization (WTO Agreement), WTO member governments agree
to be bound by the rules in all of the multilateral trade agreements
attached to it, including the SPS Agreement and the Agreement on
Technical Barriers to Trade (TBT). Codex texts are particularly
relevant to the application of the SPS and TBT agreements because
the agreements specifically direct member governments to utilize
texts in taking decisions under the agreements.
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.
These factors are vital in our collective consideration, as we
approach the next round of Codex discussions regarding Food Labeling,
where the shape of future standards in a number of critical areas
may well be decided, for better or for worse. Those who are entrusted
with the making of such decisions must be mindful of the fact that
the recent outbreaks of BSE and foot-and-mouth disease, as well
as other food safety crises of recent years, are ample evidence
that there are real threats which warrant the time and energy of
regulators and activists. These should be the focal point of Codex’s
activity in the future, and in doing so, Codex would nobly fulfill
its mission to ensure the safety of the global food supply, an open
trading system.
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