The SPS Agreement and its Implementation

1
The SPS Agreement and its Implementation

• Victor Mosoti
• Legal Officer
• Development Law Service
• FAO Legal Office

2
Three main points on accession procedures

• That accession to the WTO is conducted in an
  atmosphere of practically no rules Art. XII of
  the Marrakech Agreement terms to be agreed
• That accession implies adopting and implementing
  extensive WTO disciplines
• Article XVI4 of Marrakech Agreementeach Member
  shall ensure conformity of its laws, regulations
  and administrative procedures
• Legal reforms up to 40 of the laws sometimes
• Institutional reforms
• That accession (being a give and take) opens up
  foreign markets to domestic producers, with
  foreign producers also benefiting from host
  country markets.

3
Legal Framework for WTO Accession

• As with most other international organizations, a
  new member must pay a fee in order to
  joinhowever
• Accession to the WTO is unique because
• It involves very extensive commitments (fees)
• Joining implies economic openness and rule of law
• Of its binding dispute settlement system.
• The rules for joining the WTO are summed up in
  Article XII.

4
Key Features of Article XII

• Article XII is remarkable only in its brevity!
• The key feature is
• on terms to be agreed between it and the
  WTO.
• The implicit message in Article XII is countries
  get what they are able to negotiate!

5
Why are standards important to agric. trade?

• Influences marketability of agricultural
  products meeting consumer expectations
  important.
• SPS measures are applied to lower or eliminate
  the risk posed to human, animal or plant life or
  health by pests, diseases, various food additives
  or contaminants.
• Link with Agriculture negotiations SPS
  standards issues entered the UR negotiations
  when it was realized that non-tariff barriers
  would be replaced by bound tariffs fear that
  sanitary and phytosanitary measures would become
  a disguised barriers.
• The SPS and AoA are therefore complementary.

6
The Scope of the SPS Agreement

• Sanitary measures deal with human and animal
  health phytosanitary measures deal with plant
  health.
• The agreement applies to all sanitary and
  phytosanitary measures that may affect trade
  either directly or indirectly.
• Examples of such measures could be
• requiring products to come from disease-free
  areas
• quarantine regulations
• certification or inspection procedures
• health related labeling e.g. GMO Maximum
  Residues Levels (MRLs) etc.

7
Definitions Sanitary/Phytosanitary Measures

• Any Measure applied to Protect Animal or Plant
  Life or Health from Risk related to the
  establishment or spread of
• Pests or diseases
• Disease-carrying organisms
• Disease-causing organisms

8
Definitions Sanitary/Phytosanitary Measures

• Any measure applied to Protect Human and Animal
  Life or Health from Risks from
• improper use of food additives
• contaminants
• toxins
• disease causing organisms in foods, beverages or
  feedstuffs

9
Definitions Sanitary/Phytosanitary Measures

• Any Measures Applied to Protect Human Life or
  Health from diseases carried by
• animals
• plants
• animal/plant products

10
Definitions Sanitary/Phytosanitary Measures

• Any Measure Applied to Prevent or Limit Damage
  from
• the entry of Pests
• the establishment of Pests
• the spread of Pests

11
Scope of the SPS Agreement

• The agreements covers four scenarios
• (SPS Measures)
• First Protection of human or animal life or
  health, from risks arising from additives or
  contaminants, toxins or disease-causing organisms
  in their food.
• Examples Pesticide levels (MRLs) on fruits and
  flowers poultry contaminated with salmonella
  restrictions on the use of veterinary drugs and
  hormones on certain livestock

12
Scope of SPS Agreement

• Second Protection of human life from plant or
  animal carried diseases.
• Examples banning the import of livestock
  products because of incidence of foot-and-mouth

13
Scope of the SPS Agreement

• Three Protection of animal or plant life from
  the introduction of pests, diseases or
  disease-causing organisms.
• Example restrictions on fruit from areas plagued
  by fruit fly
• Four Protection of a country from damage caused
  by the entry, establishment or spread of pests.
• Example protection from the undesired
  importation of certain weeds and pests.

14
Nature of the SPS Agreement

• Unlike the AoA which has specific reduction
  commitments, the SPS imposes no quantitative and
  legally binding schedules of concessions.
• It is simply a set of rules, principles and
  benchmarks to ensure that any SPS measures are
  justified and are not disguised trade barriers.

15
Key Provisions in the Agreement

• Art. 3 Harmonization encourages the
  establishment, recognition and application of
  common SPS measures by different Members.
• Use of international standards, guidelines and
  recommendations based on scientific evidence is
  encouraged.
• Standard setting organizations provide these
  benchmarks Codex, IPPC, OIE. The adoption of
  their standards is voluntary.
• Problem of participation in standard setting
  bodies has often been raised FAO/WHO trust fund

16
Key SPS provisions

• Adoption of international standards is voluntary
  but such adoption is deemed compliance with SPS
  Agreement.
• Countries are allowed to impose stricter
  standards if they have scientific justification.
• Countries can decide not to use international
  standards but must be based on a defensible and
  proper risk assessment.

17
Other Key Provisions

• Art. 4 Equivalence Countries are encouraged to
  recognize others procedures as offering
  equivalent protection levels. Bilaterally
  negotiated.
• Art. 5 Risk Assessment Should be systematic and
  scientifically sound. This can be expensive as it
  requires equipment and laboratories.
• Art. 7 Transparency (i) requirement to
  designate a national notification authority (ii)
  national enquiry point.

18
Article 7 Transparency

• Publication of regulations provide lead time for
  comment
• Enquiry Point established
• Notification procedures followed
• General Reservations (related to Confidential
  information)

19
Article 3Harmonization

• Members shall base Sanitary and Phytosanitary
  Measures on international standards, guidelines
  and recommendations
• Measures which conform to international standards
  are consistent with Agreement
• Higher level of protection may be used

20
Article 4Equivalence

• Members shall accept other Member measures as
  equivalent, if final results are the same
• Members shall consult to achieve bilateral and
  multilateral agreement (Equivalence Agreement,
  MOU)

21
Article 5Risk Assessment

• SPS Measures are to be based on an assessment of
  the risks to Human, Animal and Plant life and
  health using internationally accepted Risk
  Assessment Techniques

22
Article 5Risk Assessment

• Risk Assessment should take into account
• available scientific evidence
• relevant processes and production methods
• inspection/sampling/testing methods
• prevalence of specific diseases or pests
• existence of pest/disease free areas
• ecological/environmental conditions
• quarantine or other treatment

23
Article 5Risk Assessment

• Risk Assessment for animal and plant life or
  health should take into account economic factors
  such as
• Cost of control or eradication
• Potential damage-loss of production/sale
• Cost effectiveness of alternative approaches

24
Article 13Implementation

• National governments are responsible for
  observance of agreement by other than central
  government bodies

25
Implementation and transition periods

• Prioritize key sectors such fruit and vegetables
• Transition periods. Note depends on
  negotiations, can range from 3-10 years.
• Strengthening and better coordination of the food
  technology and quality control administration and
  plant protection services both at the national
  and local levels
• Strengthening the national laboratories both
  human resources and equipment.
• Implementation of Codex and OIE standards
• Join IPPC

26
SPS Notification Requirements

• Annex B para. 5 proposed SPS laws and
  regulations or changes not the same as
  international standards and have a significant
  trade effect.
• Annex B para. 3 enquiry points to answer all
  questions and provide relevant documents to
  trading partners.
• Annex B para. 10 National notification
  authority one government agency responsible for
  notifications.