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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.
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[1] Article 3.3. permits Members the opportunity to introduce measures that result in a higher level of SPS protection than would otherwise be achieved by measures based on the relevant standards, guidelines, or recommendations if there is a scientific justification or if the member finds the level of protection appropriate in accordance with (1) and (2) above. Codex standards and guidelines come into play again under the definition of “scientific justification,” which requires that a member determined, based on an examination and evaluation of available scientific information, that the relevant international standard, guideline, or recommendation does not provide sufficient SPS protection.
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3/16/2010
Science Forum
Washington, DC
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4/7/2010
Consumer Complaints Conference
Washington, DC
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4/7/2010
Foodborne Illness Litigation Conference
Washington, DC
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4/13/2010
Food Labeling Workshop: Complying with Regulatory Requirements for the Labeling of Packaged Foods
Washington, DC
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6/8/2010
Food Labeling Workshop: Complying with Regulatory Requirements for the Labeling of Packaged Foods
Minneapolis, MN
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