JOURNAL OF FOOD COMPOSITION AND ANALYSIS 12, 5—7 (1999)Article No. jfca.1999.0810Available online at http://www.idealibrary.com on

Invited Commentary: Codex—Seizing the WTO Challenge

Joan Wright1

Regulatory Policy Manager for the New Zealand Dairy Board, 25 The Terrace, Wellington, New Zealand

In 1994, the World Trade Organisation (WTO) threw down a challenge toCodex Alimentarius System (Codex), expressly with respect to Sanitary andPhytosanitary standards (SPA) and implicitly for Technical Barriers to Trade stan-dards (TBT). As a result, this organization of more than 30 years, and its members,have been given unprecedented authority and potency that many within the interna-tional community of Codex participants have yet to grasp. Under WTO, a Codexstandard is considered a yardstick for determining whether or not a similar standardof a member state is an unjustified restraint on international trade. Ironically, manyCodex standards themselves represent unnecessary barriers to trade and are unde-serving of the status given to them by the WTO. An example can be seen in the dairyindustry in the extraordinarily prescriptive individual cheese standards (CodesAlimentarius Vol. 12).

Codex is responding to the challenge. The recently expounded requirements thatthe principle of sound scientific analyses and evidence and the use of accepted riskassessment be the bases of decision-making are important steps towards addressingsome of the problems. (Reasserted by the Codex Committee on General Principles atthe 13th Session in Paris, September 7—11 1998 as reported in A¸INORM 99/33). Inthe May 1998 meeting of the Codex Committee on Milk and Milk Products, 14 of theindividual cheeese standards were revoked. However, it is going to be a hard task totransform this unwieldy, slow moving, organization into a respected generator ofexemplary food standards.

To protect the reputation of the Codex Alimentarius system, members must committhemselves to a rigorous timetable for reviewing Codex standards. To bring a sense ofurgency to the work of this cumbersome institution, measures developed prior to thecompletion of the 1994 GATT round should be sunsetted or otherwise devalued asa yardstick for the WTO purposes unless reviewed, and revised or revalidated.

Moreover, priority in terms of time and effort must be given to finding a solution forissues affecting health and safety. Food product regulators should be focusing prim-arily on ensuring an acceptable level of safety in food rather than on non-safety issues.The notion of safety in this context relates to exposure to potentially harmful levelsof residues, genetic material, contaminants, microbiological organisms and theirtoxins, and additives with technological or nutritive functions. Measures developed tomeet the safety objectives must be justified on a cost/benefit basis.

Some members of Codex have yet to recognize they have a collective responsibilityto develop good defensible international standards. For example, it is disturbing tosee those like the Draft Revised Standard for Honey currently at Step 6 carryingprovisions prohibiting ‘‘objectionable’’ flavour and aroma. These are matters ofquality which consumers can easily manage for themselves without governmentinterference.

1The opinions expressed here by the author are her own and not necessarily those of the New ZealandDairy Board.

0889—1575/99/010005#03 $30.00/0 ( 1999 Academic Press

6 J. WRIGHT

Within the various committees, a good chairperson and a clear understandingamong members of guiding principles and how they must operate are important. Atthe Commission level, these components backed by a true commitment to thoseprinciples are absolutely essential.

While on personal safety issues, the community cannot afford, economically orsocially, to leave the task of avoiding harm to consumers and thus appropriateproscriptive and restrictive measures are inevitable, on quality and non-safety issues,other non-governmental mechanisms are more fitting.

The world of consumers’ desires, motivation and rationale for choice is too complexfor a single regulatory response. For non-health associated food issues, individualconsumers are best placed to determine what attributes are valuable to them and theextent of that value in terms of opportunity costs. It is consumer diversity thatmitigates against regulators finding a satisfactory solution in regulation but it isproduct diversity that obviates the need for regulation. Those proposing prescriptiveregulation appear to ignore the wide choice of products available to consumers.Manufacturers are constantly looking for the marketing ‘‘edge’’, the valued attribute,be it cost, high and low, ‘‘organically’’ grown, old fashioned, natural, non-irradiated,without genetic modification, consistency in quality, year-round availability, envir-onmentally sound, convenience, healthy, stylish, taste, flavour, texture, familiarity orthe bizarre. They will raise consumer awareness by promoting that attribute. Con-sumers need not buy a product that does not meet their reasonable needs. Theirdisapproval can be heard through the sound of their departing footsteps, their queriesor complaints to store managers, or on the toll-free numbers or internet addressesprovided by manufacturers and producers. Manufacturers are very sensitive to thesemessages.

There are a range of issues that should not be permitted to engage the valuable timeand effort of standard makers. For example, standards that try to regulate the manu-facturing process by which products are made without justification on grounds ofsafety are anti-innovation, anti-choice and impose unwarranted burdens on bothconsumers and manufacturers. Consumers who want the ‘‘original’’ or traditionalprocess are quite capable of seeking out those products and will flag their true interestin those attributes by paying a premium. Those consumers who value other attributesmore highly, e.g., low cost, consistency of product will reflect that in their choice.Consumers who demand mandatory declaration of or adherence to their chosenattributes are showing considerable disregard for those who must bear the cost of thatmeasure without due benefit.

On another tack, a mandatory nutrition information panel in the absence ofnutrient or health claims cannot be justified. (Currently, Canada is considering fol-lowing the United States’ prescriptive approach.) Those consumers who value thatinformation can refrain from purchasing products which are not displaying it. There isno purchase that is so urgent it cannot wait another day. Nor will the odd purchasemade without the consumer being privy to nutrition information make significantdifference to his or her general health status. If consumers are sufficiently interested,they can seek information from the supplier. The explosion in the ‘‘healthy’’ foodmarket around the world is evidence of manufacturers’ awareness of and response toconsumers’ heightened interest in these matters. Of course, if a manufacturer choosesto take on the role of providing health or nutrition information in the form of a claimit cannot complain if it is required to provide a rounded message in the form of anutrition information panel. However, an onerous requirement for an extended list ofnutrients is not warranted. It is pleasing to see the European Union ConsumerCommissioner recognizing that detailed information could be accessed in ways otherthan by labelling, e.g., through the internet. It is notable too that she has highlighted

INVITED COMMENTARY 7

the need for consumers to take ‘‘some’’ responsibility in protecting their own interests(Eº Food ¸aw, No. 83, November 1998).

This is not a call for removal of all non-health-related prescriptive measures. Insome cases, retaining the status quo may be the best outcome. For example, here tostay is the ingredient declaration list that emerged as mandatory when the food trademoved away from easily recognized homestyle products and consumers lost theirability to judge for themselves the composition of the food products they were offered.However, the ingredient list’s power as a moderator on manufacturers is not acknow-ledged, or effectively exploited, by some regulators. It is the greatest incentive formanufacturers to minimize additive use—consumers’ clear aversion to ‘‘artificial’’ingredients works better than any proscription. Indeed, logic dictates that regulators’efforts are better spent on ensuring consumers are not harmed by overconsumption ofnutrients and those ingredients that consumers view as ‘‘healthy’’.

This appeal is for a more targeted approach to standard making especially at Codexlevel—health and safety first and foremost, justification of mandatory measures onlegitimate grounds, and awareness that there is usually more than one way to achievean objective. Over-protection weakens consumers’ important instinct for self-preser-vation, encourages indifference and denies them the opportunity to assert theirsovereignty in the way that best reflects their needs.

E. Joan WrightJanuary 12, 1999