W HAT IS AN SPS MEASURE ? Annex A.1 (paragraph 1) Focus on purpose: - - PowerPoint PPT Presentation

TRAINING PROGRAMME FOR THE GOVERNMENT OF INDONESIA

The SPS Agreement

Jogjakarta, Indonesia 26-29 March 2019

AGENDA

• 1. What is an SPS measure?
• 2. Main obligations under the SPS Agreement
• Risk assessment and sufficient scientific basis –

Articles 2.2, 5.1 – 5.3, 5.7

• Non-discrimination – Articles 2.3 and 5.5
• Least trade-restrictiveness – Article 5.6
• Harmonization – Article 3
• Regionalization – Article 6
• Efficient and transparent administration of control,

inspection and approval procedures - Article 8 and Annex C

• 3. Relationship between the SPS Agreement and the GATT

1994

WHAT IS AN SPS MEASURE?

Annex A.1 (paragraph 1) → Focus on purpose: Any measure applied to protect:

From risks arising from:

(a) the entry, establishment or spread of pests, diseases, disease- carrying organisms or disease- causing organisms (b) additives, contaminants, toxins

• r disease-causing organisms in

foods, beverages or feedstuffs (c) from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests

ARE THESE SPS MEASURES?

• A requirement that pineapples are free from fruit flies

to protect humans from viruses.

• A measure that bans cigarettes to protect human

life/health.

ARE THESE SPS MEASURES?

• A measure that bans apples to protect trees from Fire Blight.
• A measure that bans poultry products to protect animals from Avian

Influenza.

ARE THESE SPS MEASURES?

• A law passed by Parliament whereby the Poultry Inspection

Authority may not use any government funds to complete internal approval procedures to authorize the importation of poultry from China. The law was passed because Parliament is concerned about media reports that hygiene standards in China are poor.

CAN A LABEL BE AN SPS MEASURE?

Annex A.1 (paragraph 2): Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety.

CAN A LABEL BE AN SPS MEASURE?

• A measure imposing labelling on nutrition facts.
• A prohibition from using the label "Sardines" on sardines of

the varieties sardinops sagax from the Pacific Ocean.

LABELS THAT ARE NOT SPS MEASURES

Technical regulation: Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

MAIN OBLIGATIONS UNDER

THE SPS AGREEMENT

1 Risk assessment 2 Non-discrimination 4 Harmonization 5 Regionalization 3 Least trade- restrictiveness 6 Efficiency & Transparency Main obligations under the SPS Agreement

• 1. RISK ASSESSMENT
• Article 2.2: Members shall ensure that any SPS measure

“is based on scientific principles and is not maintained without sufficient scientific evidence”.

• Article 5.1: Members shall ensure that their SPS

measures "are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health".

WHAT IS A RISK ASSESSMENT?

Annex A, paragraph 4, of the SPS Agreement defines "risk assessment":

• Evaluation of the likelihood of entry, establishment or

spread of a pest or disease within the territory of an importing Member according to the sanitary

• r

phytosanitary measures which might be applied, and of the associated potential biological and economic consequences. OR

• Evaluation of the potential for adverse effects on human
• r animal health arising from the presence of additives,

contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.

This relates to risks arising from pests

• r diseases

This relates to food- borne risks

RISK ASSESSMENT

• Risk assessment need not to be conducted by the

regulating Member.

• It may be conducted, for example,

by an IO such as the WHO or FAO,

• r another Member, provided that

the risk assessment is relevant to the importing Member.

• The risk must be assessed "in the real world where

people live and work and die". (Appellate Body, EC – Hormones, para. 187).

ARE MINORITY VIEWS ACCEPTABLE?

• Minority science: "Article 5.1 does not require that the risk

assessment must necessarily embody only the view of a majority

• f the relevant scientific community" (Appellate Body Report,

EC – Hormones, para. 194).

Several studies that we have conducted demonstrate that substance X is safe to eat I have conducted a study that suggests that there is a risk from substance X

Government can choose which scientific opinion(s) to rely on, as long as each one is from a respected scientific source.

RELATIONSHIP BETWEEN RISK

ASSESSMENT AND SPS MEASURES

• "Based on": There must be a "rational relationship" between

the conclusions of the risk assessment and the SPS measure.

• Case law examples of inconsistency with Articles 5.1 and 2.2:

Russia – Pigs Japan – Apples

No risk assessment Total ban on imports Negligible risk of fire blight transmission through apple fruit List of burdensome import requirements "clearly disproportionate" to the risk

PROVISIONAL MEASURES

• Art. 5.7: Provisional measures without a risk assessment:
• Insufficient relevant scientific evidence
• Adopted on the basis of available pertinent information
• Seek to obtain the necessary additional information
• Review the measure within a reasonable period of time
• Japan – Apples: 5 years is not a reasonable

period of time, and Japan also did not seek additional information.

• 2. NON-DISCRIMINATION
• Article 2.3: Members shall ensure that their SPS measures "do not

arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members." SPS measures "shall not be applied in a manner which would constitute a disguised restriction

• n international trade".
• Article 5.5: each Member shall avoid arbitrary or unjustifiable

distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.

NON-DISCRIMINATION

• Case law examples of discrimination:

India – Agricultural Products Russia – Pigs

Imports must be free from both types of Avian Influenza (high and low pathogenic) No domestic control on low pathogenic Avian Influenza Imported pig products from areas free from African Swine Fever are banned Domestic pig products from areas free from African Swine Fever are allowed

NON-DISCRIMINATION

• Australia - Salmon

Australia was concerned about level of risk in salmon products, but not in other types of fish (e.g. herring used as bait and finfish where risk may have been even higher).

Risk of fish disease in salmon products

… WORRY!

Risk of the same disease in herring used as bait and finfish– NO WORRY! SAME GOVERNMENT

• 3. LEAST TRADE-RESTRICTIVENESS
• Article 2.2: Members shall ensure that any SPS

measure "is applied only to the extent necessary to protect human, animal or plant life or health".

• Article 5.6: "Members shall ensure that such measures

are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility".

LEAST TRADE-RESTRICTIVENESS

• The Appellate Body has observed that Article 5.6 of the SPS

Agreement must be read together with footnote 3.

• A measure is more trade-restrictive than required if there is an

alternative measure:

• Reasonably available taking into account technical and

economic feasibility;

• Achieves the appropriate level of SPS protection; and
• It is significantly less restrictive to trade.

Korea – Radionuclides: testing for radioactive material vs. total ban

SCIENTIFIC REQUIREMENTS AND NON-DISCRIMINATION IN A NUTSHELL

Article 2.1 SPS - right to take SPS measure consistent with the Agreement

• Art. 2.2
• Arts. 5.1,

5.2, 5.3

• Arts. 5.4,

5.5, 5.6

• Art. 2.3

SPS Measures must be based on scientific principles and is maintained with sufficient scientific evidence Exception: Art. 5.7 SPS Measures must not arbitrarily or unjustifiably discriminate, they must not be more trade restrictive than necessary to achieve ALOP

• 4. HARMONIZATION
• Article

3.1: "Members shall base their sanitary

• r

phytosanitary measures on international standards, guidelines

• r recommendations, where they exist".
• Article 3.2: SPS measures which "conform to international

standards … shall be … presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994".

• Article 3.3: Members may introduce or maintain SPS measures

which result in a "higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines

• r

recommendations, if there is a scientific justification".

HARMONIZATION

Article 3.2 (conformity) OPTION Presumed consistency with the SPS Agreement and the GATT ▪ Annex A.3: Relevant International Standards → Codex Alimentarius Commission; World Organization for Animal Health (OIE); International Plant Protection Convention Article 3.1 (based on) OBLIGATION Close relationship and no contradiction Article 3.3 (higher level) OPTION Scientific justification needed INTERNATIONAL STANDARD

• 5. REGIONALIZATION
• Article 6.1: Members shall ensure that their [SPS] measures are

adapted to the sanitary or phytosanitary characteristics of the area … from which the product originated and to which the product is destined.

• Article 6.2: Members shall, in particular, recognize the concepts
• f pest- or disease-free areas and areas of low pest or disease

prevalence.

• Article 6.3: Exporting Members claiming that areas within their

territories are pest- or disease-free areas … shall provide the necessary evidence thereof in order to objectively demonstrate to the importing Member that such areas are, and are likely to remain, pest or disease-free areas …

REGIONALIZATION

• Do not impose blanket bans on entire countries if only certain regions are

affected e.g. by an animal pest.

• India – Agricultural Products: avian

influenza.

• Two obligations:

➢ Recognize concept of pest-free areas. ➢ Allow

• ther

Members to demonstrate that particular areas are pest-free (often, there are standards/findings e.g. by the World Organization for Animal Health).

• 6. EFFICIENCY AND TRANSPARENCY
• Article 8: Members shall observe Annex C
• Annex C: Procedures to to "check and ensure the fulfilment of

sanitary or phytosanitary measures", e.g. sampling, testing and certification procedures.

• Shall be undertaken and completed "without undue delay" and in

"no less favourable manner for imported products than for like domestic products"

• Focus: SPS requirement. Approval cannot hinge upon other

requirements, such as halal compliance. See Indonesia – Chicken.

APROVAL PROCEDURES (ANNEX C)

• Publication of processing period of each procedure is published or

communicated upon request.

• Prompt examination of applications.
• Confidentiality of information in a way no less favourable than for

domestic products and in such a manner that legitimate commercial interests are protected.

• Requirements for control, inspection and approval of individual

specimens of a product are limited to what is reasonable and necessary.

• Any fees imposed for the procedures on imported products are

equitable in relation to any fees charged on like domestic products

• r products originating in any other Member and should be no

higher than the actual cost of the service.

NOTIFICATION REQUIREMENTS (ANNEX B)

• Annex B: Publication (transparency), Enquiry Points

(answer questions, provide access to documents) and Notification Procedures.

• Article 7 SPS: Members shall notify changes in their

SPS measures and shall provide information on their SPS measures in accordance with Annex B.

• SPS Committee: Recommended Procedures for

Implementing the Transparency Obligations of the SPS Agreement contained in G/SPS/7/Rev.3.

RELATIONSHIP BETWEEN THE SPS AGREEMENT AND THE GATT 1994

GATT 1994:

• Obligations → no discrimination (Articles I and III) and no trade

restrictions (Articles II and XI)

• General exceptions → Article XX(b):

"Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any [Member] of measures: (b) necessary to protect human, animal or plant life or health"

RELATIONSHIP BETWEEN THE SPS AGREEMENT AND THE GATT 1994

SPS Agreement:

Preamble: "Desiring … to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)” Article 2.1 of the SPS Agreement: Members have the right to take sanitary and phytosanitary measures … provided that such measures are not inconsistent with the provisions of this Agreement. Article 2.4 of the SPS Agreement: SPS measures which conform to the relevant provisions of the SPS Agreement “shall be presumed to be in accordance with the … GATT 1994 … in particular the provisions of Article XX(b)".

RELATIONSHIP BETWEEN THE SPS AGREEMENT AND THE GATT 1994

GATT 1994 SPS Agreement SPS measures as an exception (burden on the respondent) SPS measures as a right (burden on the complainant)