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Should the SPS Agreement Be Amended?
A Modest Proposal to Restore Public Support.
Bruce Silverglade, Director of Legal Affairs
Center for Science in the Public Interest

1998 Ceres Conference on Politicizing Science:
What Price Public Policy?

Center for Food and Nutrition Policy
Georgetown University Public Policy Institute

April 4, 1998

Good Morning. I am Bruce Silverglade, director of legal affairs of the Center for Science in the Public Interest (CSPI). As many of you know, CSPI is a non-profit consumer advocacy organization that works primarily on issues involving food safety and nutrition. We were founded in 1971 and are supported by more than one million subscribers to our Nutrition Action Healthletter and foundation grants. We accept no funds from government or industry.

CSPI operates in Canada and the United States and works with consumer organizations around the world. We have recently founded the International Association of Consumer Food Organizations (IACFO), which we intend to work with on global issues that affect domestic policies. The charter members of the IACFO are CSPI, the Food Commission (London) and the Japan Offspring Fund (Tokyo).

We have also become active in proceedings of the Codex Alimentarius (Codex) and have been recognized by Codex as an international non-governmental organization. We took those steps in light of the new role of Codex under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).

The U.S. government has been an enthusiastic supporter of the SPS Agreement. One of the primary purposes of the SPS Agreement in the area of food regulation is to encourage nations to support the development of international food safety and labeling standards and to adopt those standards as domestic requirements in order to ease the flow of food products across borders.

Article 3 of the SPS Agreement specifies that World Trade Organization (WTO) members shall "harmonize sanitary and phytosanitary measures" on the basis of standards, guidelines, or recommendations developed by "relevant international organizations and their subsidiary bodies, in particular the Codex Alimentarius Commission . . ."

The global economy is here to stay, and there is little question that regulatory requirements will be harmonized internationally. However, the question remains as to whether harmonization will lead to an upgrading of health standards to world class levels or the downgrading of standards to the lowest common denominator.

To the extent that international harmonization of regulatory requirements elevates health and safety regulations to a consistent level of excellence, consumers worldwide are well-served. However, if harmonization tends to reduce standards to a lower common denominator, then consumer health and safety may be jeopardized regardless of the economic benefits brought by increased trade.

We are concerned that the SPS Agreement, as it is being implemented, is in fact resulting in "downward harmonization" of health and safety standards. Significantly, this result is at odds with the Administration’s recent food safety initiatives and related consumer protection programs which seek to improve the safety and labeling of foods and dietary supplements.

For this reason, the Administration is in increasing danger of losing public support for international trade agreements such as the SPS. This trend was most recently evidenced by the failure of Congress to renew the President’s "Fast Track" negotiating authority. To ensure public support for the SPS Agreement, the Administration (and the food industry) should consider supporting technical amendments to the Agreement that will help ensure that it meets its original objectives of reducing unjustified trade barriers without lowering domestic health and safety protections.

Let me provide a little background for our concerns and then close with some modest recommendations for reform.

The Office of the United States Trade Representative (USTR) has stated that while harmonization of international standards contributes to the removal of unnecessary trade barriers, the SPS Agreement "makes clear that it does not require ‘downward harmonization’" of health and safety standards in order to meet that objective. While the U.S. has taken the position that no WTO member is required to adopt an international standard if doing so would result in a level of protection determined to be inappropriate by that member, commentators have widely recognized that there is a danger that whenever an international standard is less stringent than an existing U.S. regulation, American consumers face the risk that the domestic regulation will be lowered.

As one leading commentator has stated:

The Agreement on S&P Measures clearly has the potential for affecting some American regulations. For example, the standards for risk assessment established by American regulatory statutes vary widely, ranging from zero risk in the case of food additives covered by the Delaney Clause to more flexible limits for pesticide residues established by the EPA. Moreover, American nutritional labeling requirements are more extensive than the Codex voluntary food labeling guidelines. Clearly, much of the impact of the S&P Agreement will depend on precisely which of the American regulatory requirements that exceed those established by the Codex Commission are challenged in WTO dispute settlement proceedings and the way the Committee on S&P Measures interprets the various provisions of the agreement.

Another commentator has stated that "The danger lies in the fact that, whenever a Codex standard is more tolerant . . . than a national standard, consumers in that country face an increased risk that the national standard will be lowered to prevent a trade controversy."

These risks are more than just academic. In recent months, the U.S. has failed to persuade Codex and its committees to adopt positions favored by the Administration. For example, Codex has adopted, over strenuous objections by the U.S., standards and guidelines sanctioning:

  • Inspection systems operated by company employees rather than by government-paid officials;
  • Bottled mineral water with lower levels of minerals than those required by the FDA; and
  • Nutrient content claims not permitted by FDA food labeling regulations.

Similarly, Codex committees have advanced requirements that:

  • Fail to require mandatory pasteurization of dairy products;
  • Permit food additives not approved by FDA regulations; and
  • Permit fruit juices, milk, and other foods to contain lead at levels exceeding U.S. standards.

Some of these Codex standards were "approved" by only slight majority votes and thus do not represent sound science. Others advanced through committees in the absence of true international consensus.

Nonetheless, these actions by Codex will carry a presumption of validity in trade disputes, and it may be just a matter of time before the U.S. government must decide whether to accept imports of these products or face trade sanctions. Ultimately, we fear that Congress and the Administration may capitulate and accept imports of food products currently not permitted to be sold here in deference to the interests of U.S. agricultural exporters who do not want to see the U.S. government rock the boat and suffer retaliatory trade measures from abroad. Worse yet, domestic producers may then argue, not unreasonably, that FDA and USDA regulatory requirements should be lowered to similar levels so as to not discriminate against domestic producers.

In light of the fact that many Codex requirements do not reflect sound science, do not reflect actual international consensus, and do not provide the same level of protection as U.S. health and safety regulations, it is in the interest of the United States to ensure that there is a mechanism that limits the frequency that Codex standards, recommendations and guidelines can be used to support complaints brought before the WTO.

In its June 1997 report, the Codex Commission "decided to request the SPS Committee through the Secretariat to clarify how the SPS Committee would differentiate ‘standards, guidelines and other recommendations’ in relation to the implementation of the SPS Agreement by WTO Members." Draft Medium-Term Plan, at 2 6. As currently drafted, the SPS Agreement does not differentiate between the effect of Codex standards, guidelines, or recommendations. 493(5) (1994).

In March, the SPS Committee proposed to respond to this request by merely tossing the question back to Codex. The SPS Committee planned to inform Codex that the Agreement "makes no distinctions between standards, guidelines and recommendations," that "The Committee cannot formally interpret the provisions of the SPS Agreement," and that "The Committee considers it to be an internal decision of the Codex Alimentarius Commission regarding the type and context of the texts it develops to address issues before it." Thus, barring action by the WTO Ministerial Conference or General Council, Codex guidelines and recommendations that were never meant to be binding and that are often adverse to the interests of the United States may be utilized as the basis of complaints brought before WTO dispute resolution panels.

As Tip O’Neil, the former Speaker of the U.S. House of Representatives, was fond of saying, "All politics are local," and this observation is true even in an era of globalization. The American public simply will not accept the lowering of public health and safety protections in order to further international trade goals. Thus, it is imperative, from the standpoint of both consumer protection and free trade advocates, that the U.S. support amendments to the SPS Agreement that clarify that Codex guidelines and recommendations have no effect in the context of WTO proceedings.

Before closing, let me make some other suggestions for amendments to the SPS Agreement.

First, the burden of proof in SPS disputes should be codified in the Agreement as determined by the appellate panel in the growth hormones case.

The appellate panel’s decision places the burden of proof squarely on the challenger where it belongs and is more in line with the law of the United States. The Administration should thus support technical amendments to the Agreement which codify this aspect of the decision.

Second, the U.S. should make efforts to clarify Article 10 of the SPS Agreement, which provides that "Members shall take account of the special needs of developing country Members, and in particular of the least-developed country Members," when drafting international standards.

Article 10, as it is presently being implemented by Codex, creates a double standard for developing countries. To correct this problem, the U.S. should oppose attempts to lower international standards to levels that are acceptable to developing countries and instead beef up efforts to meet the goals of Article 10 by organizing international aid to help developing nations meet "world class" standards. By assuming a leadership role in such efforts, the Administration can give credence to its assertion that the SPS Agreement does not require downward harmonization of health and safety standards.

Third, the U.S. should ensure that the WTO and its committees adopt procedures that reflect fundamental notions of due process and transparency by providing interested members of the public with notice and an opportunity to comment.

The U.S. must insist that the WTO make its proceedings more transparent. For example, in the recent WTO decision regarding growth hormones, non-governmental organizations representing the public were prohibited from participating -- they couldn’t even file an amicus brief. Such practices offend universal notions of due process and transparency, and thus perpetuate the impression that the WTO dispute resolution process will inevitably erode the rights of consumers to high levels of health and safety protection. This result is not in the interests of advocates of free trade.

If I can leave you with just one closing thought, it is that the U.S. government and food industry should support modest amendments to the SPS Agreement to ensure that the removal of trade barriers does not erode domestic public health standards. Such steps will not only protect consumers, but will also help maintain public support for international trade agreements. This result is in the interest of both consumer protection advocates and advocates of free trade.