The Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS)
The SPS Agreement has particular relevance to the
trade in foods: it deals with issues related to food safety and animal
and plant health laws. The Agreement recognises the rights of
governments to protect human, animal or plant life or health based on
sound principles and scientific evidence and that the measures are not
used as a pretext for erecting technical barriers to protect domestic
markets. It should not discriminate between member states with similar
or identical conditions prevailing. The Agreement states that members
must base their SPS measures on international standards, guidelines and
recommendations if they exist.
While the WTO agreements are based on relevant
international standards, it is not always defined who or what should be
the body which sets the international standards, thus creating
opportunities for industry led self regulation.
Though the SPS Agreement explicitly mentions some
international benchmarks, there is a danger that commercially driven
voluntary standards and codes of conduct which are lower than the
standards of international regulatory agencies will be used
(Koivusalo:1999) This will have serious implications for health.
The international standards used in WTO disputes and
as the basis of international standards in food matters are the Codex
Alimentarius (CA). The CA is defined by the Food and Agriculture
Organisation (FAO) and the WHO and has acquired new importance with
trade liberalisation under the WTO regime. However there are concerns
that the CA has been dominated by commercial interest. Between 1989-91,
96 percent of the non-governmental participants or national delegations
represented industry and Nestle sent 38 representatives to Codex
committee meetings, which is more than most countries. In the committee
on pesticide residue levels, 33 percent of participants came from agro
chemical and food corporations. This raises questions concerning the
objectivity and impartiality of the Codex in scientific assessment
(Koivusalo: 1999).
For example in the 1990s Codex allowed residues of
DDT on numerous foods in sharp contrast to the US ban on DDT imposed in
the 1970s (Goldman & Wagner 1999). Forty two percent of the Codex
standards for pesticides are lower than US EPA & FDA standards and
fifty times more DDT may be used on or left in residual amounts on
peaches, bananas; and thirty three times more DDT may be applied on
brocolli (Goldsmith 1996:90).
In the beef hormone case, the EU challenged the CA
standard. The Joint FAO-WHO Expert Committee on Food Additives which is
an advisory body to the CA Commission had concluded in 1988 that ‘residues
resulting from the use of (these substances) as growth promoters in
accordance with good animal husbandry practice are unlikely to pose a
hazard to human health’ (WHO 1988). This evaluation had provided the
basis for the relevant CA standard. The dispute settlement panel and the
AP both found that the EU’s ban was inconsistent with the relevant
articles of the SPS Agreement. In other words, that the EU had not
conducted appropriate risk assessment or provided scientific evidence to
support its ban (Kinnon 1998).
We have seen how the guidelines of other
international scientific bodies have been ignored for example in the
beef hormone dispute, IARC studies were considered irrelevant. The beef
hormone case clearly shows that risk assessment has been defined in
highly quantitative and scientific terms measuring specific exposures
generated by specific products and the effect on human health or
mortality. This excludes low level exposures which are technically
impossible to measure and does not allow scope for the application of
the Precautionary Principle thus opening up areas for future disputes
for instance in the recent dispute with the EU, Canada challenged the EU’s
standards for exposure to asbestos which are more stringent. While
asbestos is acknowledged as a carcinogen, the carcinogenicity of
asbestos at low exposure is very hard to show, even when a known risk
exists.
Narrowing the intepretation of risk assessment in
such a manner ensures weak and loose regulatory standards (Koivusalo
1999). The fact that the DSB panels comprising individuals with
competence in trade laws and policies are given the authority to judge
the legitimacy of national regulations such as health in which they have
no expertise; in the absence of any transparent or open process and
public scrutiny goes against all rules of fairplay and justice. Even
worse, the decisions made by the DSB can pose a threat to public health
and safety.
Given that the overarching aim of the WTO is to
facilitate trade, the guiding principles for food safety measures is
towards ‘downward harmonisation’ of health and environmental
standards, risks assessment supported by scientific evidence and
equivalence. This will pose a major challenge to international standards
in health protection currently being developed eg WHO’s International
Framework Convention on Tobacco Control; as well as others like the International
Code of Marketing of Breastmilk Substitutes (Koivusalo 1999); The
Revised Drug Strategy and The Cartegena Protocol on Biosafety.
There are other grey areas which hold the potential
for future disputes. These are issues where scientific uncertainty is
large or where regulatory measures currently in place are not geared to
assessments of specific products, that is, they are not very exact in
their assessments of the risks of specific products, but geared more to
addressing risky or problematic practices, misuse or abuse. These could
cover the following issues based on Koivusalo’s (1999) research and
analysis:
-
substances with potential hormonal or
carcinogenic impacts; bioaccumulative substances;
-
substances with population-level associations
with chronic diseases;
-
substances in relation to which prior knowledge
of related substances suggests caution e.g stabile organo-chlorine
compounds or hormone derivatives.
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