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Center for Science in the Public Interest

Diet & Health/Food Labelling & AdvertisingFunctional FoodsFood Safety StandardsIACFOCodex Alimentarius CommissionWorld Trade OrganizationNAFTAGeneration ExcessSafe Food International

Testimony on United States Trade Policies and Agricultural Disease: Safety, Economic, and Global Considerations

Benjamin Cohen
Senior Staff Attorney
Center for Science in the Public Interest
October 26, 1999
Subcommittee on International Economic Policy and Trade
Committee on International Relations
United States House of Representatives

The Center for Science in the Public Interest(1) (“CSPI”) appreciates this opportunity to present its views on the impact of trade agreements and trade policies on domestic food safety. This important hearing is especially timely, coming just five weeks before the World Trade Organization (“WTO”) Ministerial Conference is held in Seattle. At that conference the United States and the other major trading nations will try to agree on an agenda for negotiating changes in the international rules governing global trade.

Our testimony focuses on the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), which was negotiated as part of the Uruguay Round of Trade Agreements and approved by Congress in 1994.

Let me state at the outset that we support expansion of international trade and recognize the benefits to consumers that it may bring. We also recognize that international harmonization of food safety standards facilitates trade. The benefits of promoting trade through harmonization, however, must be balanced against the possible harm to consumers that harmonization entails.

The international harmonization process will only benefit consumers if national regulatory standards are harmonized in an upward manner that provides the public with the greatest degree of protection from unsafe foods and deceptive trade practices. Unfortunately, the SPS Agreement, as it has been interpreted and applied during the last five years by the WTO,(2) threatens United States regulatory requirements because it is leading to just the opposite, i.e., to “downward harmonization.”(3) We, therefore, support reforms to the SPS Agreement that would protect United States food safety and consumer protection regulations from being weakened in the name of facilitating international trade.

The SPS Agreement and the Codex Alimentarius Commission

Let me begin by summarizing the SPS Agreement. Under the SPS Agreement, the WTO may force a nation to choose between lowering its health standards for humans, animals, or plants or paying an international penalty. A national health standard is illegal under the SPS Agreement if the WTO decides that it is not “based on scientific principles and is...maintained without sufficient scientific evidence.”(4) In making this judgment, the WTO examines the extent to which the country has done a scientific assessment of the risk to “human, animal, or plant life or health.”(5)

One of the primary purposes of the SPS Agreement is to promote trade by encouraging countries to develop and rely on international regulatory standards for food. The SPS Agreement specifically refers to food standards set by a United Nations (“UN”) affiliated organization called the Codex Alimentarius Commission (“Codex”), which was established in 1962 by the UN World Health Organization and Food and Agricultural Organization.(6)

Prior to 1995, national governments were free to accept or reject Codex standards. However, with the ratification of the SPS Agreement, Codex’s role has changed greatly. Article 3.2 of the SPS Agreement provides that a country employing a Codex “standard, guideline or recommendation” is presumed to be in compliance with its WTO obligations. Article 3.3 of the SPS Agreement provides that a country with a regulatory requirement that results in a higher level of protection than a Codex “standard, guideline, or recommendation” is presumed to have erected a barrier to international trade unless the country can show that its standard has a “scientific justification.” Thus, the SPS Agreement — by encouraging WTO challenges to a national health standard only when it exceeds the Codex standard — has a bias leading to a downward harmonization of health standards. In fact, Codex standards should be a floor, not a ceiling.

A country that the WTO determines has erected such a barrier must either lower its regulatory requirement(7) or pay an international penalty. This penalty can take the form of either compensating the foreign government whose exports to the country have been limited or permitting that country to impose trade restrictions on imports from the country that maintained the higher food safety standard.

Codex has had three meetings since the SPS Agreement was ratified in 1994. In 1995 Codex — by a vote of 33 to 29 with seven abstentions — approved the use of growth hormones for cattle. This Codex decision helped the United States government win a legal battle at the WTO declaring that the European Union’s ban on beef hormones is illegal.(8)

Since that time the United States has fared even worse. At the 1997 Codex meeting the United States lost two key votes. Codex:

  • adopted — by a vote of 33 to 31 with 10 abstentions — an international safety standard for natural mineral waters that permits higher levels of lead and other contaminants than the Food and Drug Administration (“FDA”) now allows; and
  • adopted — by a vote of 46 to 16 with seven abstentions — an international standard for food safety inspection systems that permits self-evaluation by the companies or nongovernmental third-parties even though in the United States such food safety inspections are the responsibility of the United States Department of Agriculture (“USDA”), the FDA, and State governments.(9)

The United States avoided losing any recorded votes at this year’s Codex meeting by quietly acquiescing to six Codex standards that provide less protection to consumers than the United States now requires. At its June 1999 meeting Codex unanimously:

  • approved residue tolerance for methyl parathion (and other pesticides) even though in August 1999 the Environmental Protection Agency (“EPA”) — as mandated under United States law(10) — banned methyl parathion for fruits and vegetables because of its potential adverse effects on children;
  • approved an amended standard for natural mineral waters that still permits higher levels of lead and other contaminants than the FDA now allows;(11)
  • approved an international standard that does not require pasteurization of dairy products even though pasteurization of dairy products is generally required by the FDA;(12)

  • sanctioned the use of five food additives which, while presumably safe, have not been formally approved by the FDA for use in the United States;
  • approved an international standard for the labeling of a composite ingredient in prepackaged foods that permits it to be listed by a standardized name without declaring all its component ingredients if it is less than 5 percent of the food, even though the FDA requires these components to always be listed in order to protect consumers who suffer from hypersensitivities;(13) and

  • defeated attempts to strengthen current Codex nutrition labeling requirements to make them more akin to United States law.(14)

The United States presumably acquiesced to these weak Codex standards because it believed that it would not prevail if it insisted on a recorded vote.(15)

The United States’ acquiescence to these Codex standards means that it may be only a matter of time before current EPA, FDA, and USDA regulations are challenged as trade barriers by countries invoking the Codex standards as evidence that United States regulatory requirements are unreasonably high. This process is unacceptable. Food safety and consumer protection must not be sacrificed in the name of harmonizing regulatory requirements and facilitating trade.

Suggested Reforms to the SPS Agreement

Accordingly, at the WTO’s Ministerial Meeting in Seattle on November 30-December 3, 1999, two changes should be made to the SPS agreement so as to give the United States the ability to prevent a downward harmonization of food safety standards. First, Article 3 should be either interpreted(16) or renegotiated to provide that Codex decisions are the presumptive international food safety standard only if they are virtually unanimous. This would permit the United States to protect domestic regulatory requirements by insisting on a recorded vote even when its views are shared by only a minority of national governments.

Another portion of the SPS Agreement that should be changed is the provision dealing with those situations where there is uncertainty about the relevant scientific evidence. Article 5.7 of the SPS Agreement says

“In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.” (emphasis added).

At its meeting in Brussels, Belgium in April 1999, the Transatlantic Consumer Dialogue(17) (“TACD”) unanimously recommended that the word “provisionally” be deleted from Article 5.7.(18) “Provisionally” suggests a relatively short period of time. But it may take decades to collect enough data for a government to determine with certainty whether, say, a particular food additive or pesticide causes cancer in people. “Provisionally” should be replaced in Article 5.7 with “a reasonable period of time.”

In conclusion, almost five years of experience with the SPS Agreement indicates that it jeopardizes EPA, FDA, and USDA regulations protecting consumers from unsafe food and misleading trade practices. This Committee should take the lead in telling the Administration that the SPS Agreement should be changed to make it clear that food safety and consumer protection are not negotiable items in the quest for free trade.

1. CSPI, a nonprofit organization based in Washington, D.C., is supported by approximately one million members who subscribe to its Nutrition Action Healthletter. CSPI has been working to improve the nation’s health through better nutrition and safer food since 1971. CSPI has received no Federal government grants or contracts during the current fiscal year.

As a founding member of the International Association of Consumer Food Organizations — along with the Japan Offspring Fund and the Food Commission UK — CSPI participated as an observer at both the June 1999 meeting and the 1997 meeting of the Codex Alimentarius Commission.

2. In all three cases involving the SPS Agreement, the WTO has struck down a national health regulation. In January 1998 the WTO sustained complaints by the United States and Canada against the European Union’s ban on imported beef produced from cattle treated with growth hormones even though the ban also applies to domestic beef. In October 1998 the WTO sustained a complaint by Canada against Australia’s ban on imported uncooked salmon. In February 1999 the WTO sustained a complaint by the United States against Japan’s tests of certain imported fruits to see if they are free of codling moths.

3. As President Clinton put it in a speech to the WTO last year, “We should level up, not level down.”

4. See Articles 2.2 and 5.7 of the SPS Agreement.

5. See Article 5 of the SPS Agreement.

6. For animal health and zoonoses, the SPS Agreement refers to standards developed by the International Office of Epizootics; for plant health the SPS Agreement refers to standards developed by the Secretariat of the International Plant Protection Convention.

7. In two cases (not involving the SPS Agreement) the United States has elected to change its regulations after losing a WTO decision. The Environmental Protection Agency changed its Clean Air Act regulations for oil refineries after Venezuela successfully challenged them. The Administration is now considering changes in the Endangered Species Act’s regulations to protect sea turtles when shrimp are caught after India, Malaysia, Pakistan, and Thailand successfully challenged them.

8. The United States’ legal victory at the WTO has not, of course, led to any United States exports of hormone-fed beef to the EU. The United States has rejected EU offers of either expanding exports of non-hormone fed beef or having a label on the beef saying that it is from hormone-fed cattle. The EU has rejected the United States’ offer to label the beef as coming from the United States. In July 1999 the United States announced it would impose 100 percent tariffs on $117 million of food imports from Europe because the EU refused to repeal its ban. These higher tariffs have, in turn, led to higher prices for United States consumers and social unrest in France, where farmers have retaliated by damaging McDonald’s restaurants.

9. This 1997 Codex decision may partially explain why the United States Department of Agriculture (“USDA”) has been permitting imports of meat and poultry from 32 foreign countries even though the USDA does not yet have enough information to determine whether the foreign salmonella testing systems provide a level of safety “equivalent” to that provided by the salmonella testing requirements with which large United States meat and poultry plants have had to comply since January 1998. USDA’s regulations, announced in July 1996, require that in the United States salmonella samples be taken by government inspectors and analyzed in government laboratories. In many foreign countries — including the five (Canada, Australia, New Zealand, Denmark, and Brazil) that account for about 94 percent of our imported meat and poultry — these salmonella tests are done by private, non-governmental parties.

On June 8, 1999 the House of Representatives adopted, by voice vote, Representative Meek’s floor amendment to H.R. 1906, the FY 2000 appropriations bill for the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies, that cuts off USDA funds for the processing of imports of meat and poultry from any foreign country for which USDA has not decided by March 1, 2000 that the foreign meat and poultry inspection system provides a level of safety equivalent to that provided by the domestic meat and poultry inspection system. This provision was deleted in conference, and the conferees agreed that the USDA should submit quarterly reports to Congress on its enforcement of the laws governing the safety of imported meat and poultry.

10. See section 405 of the Food Quality Protection Act of 1996, P.L. 104-170, amending section 408(b) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 346a(b).

11. Codex approved a level for lead of .01 mg/l, a level for nitrate of 50 mg/l, and a level of 3 mg/l for nitrite. The FDA’s ceilings are .005 mg/l for lead, 10 mg/l for nitrate, and 1 mg/l for nitrite. 21 C.F.R. 165.110(b)(4)(iii)(A).

12. The Codex provision applies to butter, milk fat products, evaporated milks, sweetened condensed milk, milk powders and cream powders, cheese, whey cheese, and cheeses in brine. The FDA requires pasteurization for milk and all milk products sold in interstate commerce unless the FDA has by regulation exempted the product from pasteurization. 21 C.F.R. 1240.61. The FDA has exempted certain cheeses — such as asiago fresh and soft, blue, brick, caciocavallo siciliano, cheddar, colby, edam, gorgonzola, gouda, and hard — from pasteurization. 21 C.F.R. 133.102, 133.106, 133.108, 133.111, 133.113, 133.118, 133.138, 133.141, 133.142, and 133.150.

13. See 21 C.F.R. 101.4(b)(2).

14. The current Codex standard on nutrition labeling requires that when nutrition labeling is provided, the amount of calories, fat, protein, and carbohydrates be listed. The United States proposed that saturated fat, sugar, sodium, and fiber be added to the list to make the Codex standard more compatible with United States requirements. Several governments objected to this proposed amendment, and it was not adopted.

15. For example, the United States had lost a recorded Codex vote (33 to 31 with 10 abstentions) on mineral water standards in 1997 and had lost the pasteurization issue in a Codex committee.

16. As a technical matter, this could be done in a way suggested this month by the Chairman of the WTO’s General Council in his October 11 draft declaration for the Ministerial Meeting. He suggested that the phrase “international standards, guidelines or recommendations” in Article 3 of the SPS Agreement “needs to be revised so that a differentiation is introduced between mandatory international standards and voluntary international guidelines/recommendations.” “Standards” would presumably refer only to those decisions made by a virtually unanimous Codex. Other Codex decisions would be considered as “guidelines/recommendations.” The precise vote required for a Codex decision to be a mandatory standard would be negotiated among the WTO’s Members. The European Union has, for example, suggested a two-thirds vote would be necessary. Currently, Codex “standards, guidelines or recommendations” can be adopted by a plurality vote, and all are actionable under the SPS Agreement.

17. The TACD was established in 1998 to provide consumer input into United States-European Union trade relations in various areas, including food and agriculture policy, and to counterbalance the work of the Transatlantic Business Dialogue. About 60 consumer leaders from 16 countries — including CSPI — agreed on 20 resolutions that could affect critical trade issues. On October 15, 1999 the TACD issued a statement calling for the WTO Ministerial Conference to change specific parts of the SPS Agreement because the current SPS Agreement “undercuts governments’ ability to establish and maintain legitimate, non-discriminatory food safety and food-related consumer information labeling policies.”

18. There is only one WTO decision interpreting Article 5.7, and it did not deal with the issue of what “provisional” means. Japan — Measures Affecting Agricultural Products (February 22, 1999). Instead, in that decision the WTO Appellate Body focused on the phrase “reasonable period of time” in Article 5.7 and said (at 25) that “what constitutes a ‘reasonable period of time’ has to be established on a case-by-case basis and depends on the specific circumstances of each case, including the difficulty of obtaining the additional information necessary for the review and the characteristics of the provisional SPS measure.” (emphasis in original). The WTO held that Japan had not reviewed within a reasonable period of time its 1987 varietal testing requirements for imported apples, cherries, peaches, walnuts, apricots, pears, plums, and quince that Japan asserts are designed to protect Japan from the codling moth.