the sps and tbt agreements and public health - who · sps agreement: a carefully crafted balance...
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The SPS and TBT The SPS and TBT Agreements and Public Agreements and Public
HealthHealth
Training Course on the Public Health Implications of Training Course on the Public Health Implications of Multilateral Trade AgreementsMultilateral Trade Agreements
University of Lausanne (UNIL), 14University of Lausanne (UNIL), 14--18 June 200418 June 2004
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WTO rules governing technical barriers to trade applied WTO rules governing technical barriers to trade applied for human health protection are covered by:for human health protection are covered by:
SPS Agreement:• Negotiated in parallel to
UR negotiations (1986-94) on AoA
• Concern countries might turn to the use of NTBs to protect domestic agricultural sectors that would negate benefits from reducing tariffs and subsidies
TBT Agreement:• TBT first addressed in
Tokyo Round negotiations (1973-79) “Standards Code” (1980)–Plurilateral Agreement- 46 countries adhered
• New TBT Agreement binding on all Members and contains more stringent obligations
Health is considered a legitimate objective for restricting trade but both Agreements require that such measures do not unnecessarily restrict trade
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SPS Agreement: a carefully crafted balance
Members have theright to take sanitaryand phytosanitarymeasures necessaryfor the protection ofhuman, animal and plant life or health….. (Article 2.1)
Members shall ensure that any sanitary or
phytosanitary measure is applied
only to the extent necessary to protect human, animal and
plant life or health (Article 2.2)
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Science provides the balance
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TBT Agreement: Creation of a Framework for TBT Agreement: Creation of a Framework for the use of technical regulations & standardsthe use of technical regulations & standards
– Increasing number of technical regulations and standards
– Proliferation of conformity assessment procedures
– Evolution in consumer demand – Impact on trade
Balance between legitimate political imperatives and trade facilitation
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Rights and Obligations:SPS Agreement:• Right to restrain trade
to protect health• Measures based on
scientific principles• Non-discriminatory• No disguised
restrictions
TBT Agreement:• Right to restrain trade when
legitimate objective (+illustrative list)
• Technical regulations take into consideration inter aliaavailable scientific and technical information
• Non-discriminatory• No disguised restrictions
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Definition of an SPS Measure:
risks arising from additives, contaminants, toxins or disease-causing organisms in their food, beverages, feedstuffs;
damage caused by the entry, establishment or spread of pestsa country
human life or health
plant- or animal-carried diseases (zoonoses);
human or animal life or
health
pests, diseases, or disease-causing organisms;
animal or plant life or health
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Important Footnote:
“animal” includes wild fauna and fish“plants” include forests and wild flora“parasites” includes weeds“contaminants” include pesticide residues, veterinary drug residues and extraneous matter
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SPS measures: laws, decrees, regulations… including:
• end product criteria• processes and production methods• testing, inspection, certification approval
procedures, etc.• quarantine treatments• animal transport• packaging and labelling requirements directly
related to food safety
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Legitimate Objectives under the TBT Agreement:
• Protection of human health or safety
• The protection of animal or plant life or health
• The protection of the environment
• National security interests
• Prevention of deceptive practices
• Etc...
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The TBT Agreement has a wider scope
• It applies to all:– technical regulations– standards– conformity assessment procedures
but…• its provisions do not apply to SPS
measures
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TBT Agreement some definitions:Technical Regulation• "Document which lays down product characteristics or
their related processes and production methods...with which compliance is mandatory.”
Standard• Document, approved by a recognized body that provides, for
common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory
Conformity assessment procedure• Any procedure used, directly or indirectly, to determine that
relevant requirements in technical regulations or standards are fulfilled
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TECHNICAL BARRIERS TO TRADE (TBT)
TBTTBTSPSSPS
SANITARY AND PHYTOSANITARY MEASURES (SPS) SPS does not Apply only ToAgricultural products but may also apply to industrial products
TBT Applies To:All Industrial And Agricultural Products
TBT Does Not Apply To: SPS Measures
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Health protection measures• Cigarette package
labelling signalling health risks:
• SPS Measure?
• No! TBT Measure!
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Health protection measures
• Regulation requiring that all milk products, with the exception of cheese, be pasteurized.
• TBT Measure?
No! SPS measure!
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Methods of production & inspection - Codex Code of Hygiene for meat(SPS)
Product description Codex standards(TBT)
Packaging in direct contact with the meat (SPS)
Contaminants - Codex standards for:
-pesticides residues -veterinary medicines-contaminants(SPS)
Quality specifications (age, % fat, colour, species)(TBT)
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SPS or TBT?additives, contaminants
or poisonous substances in food or drink
residues of veterinary drugs or pesticides in food or drink
certification: food safety, animal or plant health
processing methods with implications for food safety
labelling requirements directly related to food safety
plant/animal quarantine
declaring areas free from pests or disease
etc …
labelling of food, drink & drugs
quality & packaging requirements for fresh food
packaging & labelling for dangerous chemicals and toxic substances
regulations for electrical appliances
textiles & garments labelling
testing vehicles & accessories
regulations for ships & ship equipment
safety regulations for toys
etc...
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Other types of measures...
Protection of theenvironment per se
Consumer interestsother than health
Animal welfare
are not coveredby the SPS Agreement…… but may beTBT measures
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Key Principles of the SPS and TBT Agreements:
1. Scientific Justification 2. Harmonization3. Consistency4. Equivalence 5. Disease-free areas-
Regionalization6. Transparency7. Technical Assistance8. S&D Treatment9. Dispute Settlement
HarmonizationEquivalence/MRAsTransparencyRecognition of CAPs
• Technical Assistance• S&D Treatment• Dispute Settlement
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Scientific Justificationof SPS measures
Measures based on a risk assessment(Art. 5 and Art. 2)
Measures conform tointernational standards
(Art. 3)
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Scientific Justification SPS measures must be based
Scientific methodology
•Risk assessment (Advanced work by 3 sister organizationsAvailable scientific evidence;Processes & production methods;Inspection, sampling & testing methodsetc.
•Art.5
•Economic factors (in assessing risk to animal or plant life or health & determining measure to be applied)
Raised often in SPS Committee Specific Trade Concerns Raised often in SPS Committee Specific Trade Concerns (G/SPS/GEN/204/Rev.4) & major issue of SPS Disputes(G/SPS/GEN/204/Rev.4) & major issue of SPS Disputes
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Number of New Issues Raised
05
1015202530354045
1995 1997 1999 2001 2003
no.
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Participation of Developing Countries
0 20 40 60 80 100 120 140
Members Raising theIssue
Supporting Members
Members Maintaining theMeasure in Question
Number of issues raisedDeveloped Countries Developing Countries Least-Developed Countries
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Trade Concerns by Subject
Plant Health29%
Food Safety27%
Other Concerns
3%
Animal Health & Zoonoses
41%
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SPS - Risk management
•Appropriate measure
•Minimize negative trade effects
•Not more trade-restrictive than required
•Technical and economic feasibility
Art.5.4- 5.6
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Precaution in the SPS Agreement
Right to take provisional measures in case of insufficient scientific evidence
Obligation:Seek additional informationreview the measure accordinglywithin a reasonable period of time
Art. 5.7
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International HarmonizationSPS & TBT
• Encouragement to use international standards
• Conformity presumption• Right to be more stringent, but...
• SPS requires scientific justification or risk assessment
• TBT only requires indication that fundamental legitimate objectives cannot be met
•Art.3
•Art.2.4
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International Harmonization
• Food safety• CODEX
• Animal health• OIE
• Plant protection• IPPC
• Relevant international standards
••SPSSPS ••TBTTBT
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SPS - Monitoring International Harmonization
••NonNon--utilisation?utilisation?
••Inappropriate?Inappropriate?
••NonNon--existent?existent?
•WTO Member•Apply standard
••““Three sisters”•Review old•Create new
11 issues raised in the SPS Committee since the implementation of the procedure
Articles 3.5 and 12.4
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Consistency
• Consistency (objective)
• Avoid distinctions ALOP if they result in discrimination or a disguised restriction on int. trade
• Guidelines adopted (G/SPS/15)
• No further work in Committee
• Often issue in disputes
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•Art.2.7
•Art.6.3
Equivalence/MRAsSPS TBT
• Acceptance of equivalent measures
• Exporter to demonstrate• Access to importer• Bilateral and multilateral
agreements• Guidelines adopted and
clarified (G/SPS/19/Rev.1)
• New format for notifications
• Acceptance of equivalent regulations
• Condition: adequately fulfill the objective of the importer
• Agreements mutual recognition conformityassessment procedures
•Art.4
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SPS - Regionalization•Adaptation of measures to risk profile
•Pest- or disease-free areas
•FMD;… BSE•Art.6
•Exporter: burden of proof(…reasonable access)
• Proposal for development of Guidelines (Chile, EC, Canada)
•Advanced work in animal health and plant protection
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SPS - Transparency - TBT
Notifications•Normal
•EmergencyNo international standardDeviation international standard
Significant effect on trade
When?
Enquiry Points
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SPS Notifications Circulated (1995-2003)
0
200
400
600
800
1000
1995 1996 1997 1998 1999 2000 2001 2002 2003
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Members NotifyingSPS Measures (1995- 2003)
0
20
40
60
80
100
120
140
160
Developedcountries
Developingcountries
LeastDevelopedCountries
Total
Num
ber o
f Mem
bers
Not NotifiedNotified
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SPS Notifications by Region (1995-2003)
Asia 29%
North America 28%
Latin America 25%
Central and Eastern
Europe 4%
Western Europe 11%
Africa 2% Middle East 1%
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SPS - Committee - TBT
Implementation of the Agreement
- Trade problems- Information by Members
Discussion of notifications
•Monitoring•Consistency
•Review Agreement
SPS•Standards
•Technical regulations•Conformity assessment
TBT
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•Technical Assistance •Technical Assistance
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Technical assistance
•Reinforcement services•Establishment regulatory bodies•Advice, credits, donations, grants
•Bilateral •“Three sisters”
•TBT •SPS•IT
C•FAO
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Special and differential treatment
Take into account special needs of LDCSpecified, time-limited exceptions upon requestFacilitate active participation LDC in international organizations
TBT & SPS
TBT Flexibility international standards
No flexibility international standardsDelayed application
SPS
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Dispute settlement
• WTO unified dispute settlement procedures
• Possibility technical experts (group)• SPS: right to resort to dispute
settlement mechanisms of other IO
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For more information, contact:
Maria Perez-EsteveAgriculture and Commodities Division
tel: 022 739 55 46fax: 022 739 57 60
E-mail: [email protected]