private sps standards in wto context iv international workshop on conformity assessment - december...
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Private SPS StandardsPrivate SPS Standardsinin WTO context WTO context
IV International Workshop on Conformity AssessmeIV International Workshop on Conformity Assessmentnt - December 08 - 09, 2008 - December 08 - 09, 2008 Rio de Janeiro, Brazil Rio de Janeiro, Brazil
Marinus Huige Chairman of the WTO Committee on
Sanitary and Phytosanitary Measures
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Location: Geneva, Switzerland
Established: 1 January 1995
Membership:
153 countries (July 2008)
Budget: 182m Swiss francs, 2007
Secretariat staff: ~650
Head: Pascal Lamy (director-general)
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• Negotiate trade rules
• Implement trade agreements
• Resolve trade disputes
• Review national trade policies
What is the WTO?What is the WTO?
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WTO Members 2008WTO Members 2008(153)(153)
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%
20071947
?NTBstariffs
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Non-tariff measuresNon-tariff measures
TBT measures
SPS meaures
Trade in services
Government purchase
Quantitative restrictions
Subsidies
Other
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The right to protecthuman, animalor plant lifeor health
Avoiding unnecessary barriers to trade
Agreement on the Application of Sanitary Agreement on the Application of Sanitary and Phytosanitary Measures and Phytosanitary Measures
(SPS Agreement)(SPS Agreement)
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Human or risks arising from additives,
animal health contaminants, toxins or disease
organisms in food, drink, feedstuff
from
SPS Measures -SPS Measures - ExamplesExamplesDefinition - Annex ADefinition - Annex A
A measure taken to protect:
limits on residues in fish &shellfish
limits on aflatoxin residuesin nuts
HACCP to limit risks from salmonella
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SPS Measures -SPS Measures - ExamplesExamplesDefinition - Annex ADefinition - Annex A
Human life plant- or animal-carried diseasesfrom
A measure taken to protect:
requirement that susceptible animals be vaccinated against rabies
avian influenza measures
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SPS Measures -SPS Measures - ExamplesExamplesDefinition - Annex ADefinition - Annex A
A measure taken to protect:
Animal or pests, diseases, disease-causing
plant life organismsfrom
measure toprevent introductionof FMD
measure toprevent introductionof fruit flies
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A country other damage caused by entry,
establishment or spread of pestsfrom
SPS Measures -SPS Measures - ExamplesExamplesDefinition - Annex ADefinition - Annex A
A measure taken to protect:
measure toprevent introductionof zebra musselsthrough ballast water of ships
seed regulationto avoidintroductionof exotic weeds
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Key Provisions of the SPS Key Provisions of the SPS AgreementAgreement
1. Non-discrimination
2. Scientific justification • harmonization
• risk assessment
• consistency
• least trade-restrictiveness
3. Equivalence
4. Regionalization
5. Transparency
6. Technical assistance/special treatment
7. Control, inspection and approval procedures
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Country ACountry B
Country C
Non-discriminationNon-discriminationArticle 2.3Article 2.3
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Members shall
ensure that any
SPS measure
is:
Scientific justificationScientific justification Article 2.2Article 2.2
applied only to the extent necessary to protect human, animal or plant life or health (least trade restrictive)
based on scientific principles
not maintained without sufficient scientific evidence
except as provided for in Article 5.7
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Members shall ensure that their SPS measures are based on
– an assessment, as appropriate, of the risks to human, animal or plant life or health,
– taking into account risk assessment techniques developed by the relevant international organizations.
Scientific justificationScientific justification Risk AssessmentRisk AssessmentArticle 5.1Article 5.1
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Scientific JustificationScientific Justification Articles 3 & 5 Articles 3 & 5
OR
International standards
Risk assessment
Measures must be based on
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Standard-setting organizations
food safetyCODEX
plant healthIPPC
animal healthOIE
Codex = Joint FAO/WHO Codex Alimentarius CommissionOIE = World Organization for Animal HealthIPPC = International Plant Protection Convention (FAO)
Scientific justificationScientific justification HarmonizationHarmonizationArticle 3Article 3
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Scientific justificationScientific justification ConsistencyConsistencyArticle 5.5Article 5.5
Members shall
avoid arbitrary distinctions
in appropriate level of SPS protection (ALOP) considered in different situations
if distinctions result in discrimination or disguised restrictions on trade
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Scientific justificationScientific justification Least trade restrictiveLeast trade restrictiveArticle 5.6Article 5.6
Once have determined the NEED for
an SPS measure
AND
Have determined the LEVEL of protection needed
must select
Least-trade restrictive measure to achieve ALOP
(technically and economically feasible)
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EquivalenceEquivalenceArticle 4Article 4
Members shall
accept SPS measures of other Members as equivalent
If the exporting country objectively demonstrates that its measures achieve the ALOP of the importing country
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Pest- or disease-free areasPest- or disease-free areas Article 6 (Regionalization)Article 6 (Regionalization)
Members shall ensure that their SPS measures are adapted o the SPS characteristics of an
“area”
all of a country part of a country all or parts of several countries
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TransparencyTransparencyArticle 7 & Annex BArticle 7 & Annex B
Members shallestablish an Enquiry Point
ANDdesignate a Notification Authority
notify other Members of new or changed SPS regulations when
no international standard exists OR
the new regulation is different than the international standard
regulation may have significant effect on trade
AND
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Special & Differential Treatment and Special & Differential Treatment and Technical AssistanceTechnical Assistance Articles 9 & 10Articles 9 & 10
Members...
• ...shall take account of the special needs of developing countries
• ...should accord longer time frames for compliance
• ...agree to facilitate provision of Technical Assistance
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Private Standards – Main driversPrivate Standards – Main drivers
Food safety crisis (BSE, E-coli, Salmonella, H1N5, dioxin) Retailers legal responsibility for due diligence / STANDARDS as
liability firewall between retailer and rest of the chain “Corporate Social Responsibility” and “Reputational Risks” Consumer have increasing expectations of retailers are better
informed, more health conscious more concerned and more vocal and organised
Globalisation of retail and production / more global sourcing Vertical integration between suppliers and retailers
Estimation of over 400 private schemes (UNCTAD)
Trade Creation Potential Vs. Trade BarriersTrade Creation Potential Vs. Trade Barriers
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Forms of Private StandardsForms of Private Standards
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Key Concerns Related to Private StandardsKey Concerns Related to Private Standards
1. Market access
2. Developmental implications
3. Legal aspects
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Market Access – Possible Market Access – Possible ImplicationsImplications
Private Standards going beyond official food safety requirements (e.g., lower maximum pesticide residue levels - MRLs)
Becoming de facto market access requirements- “Blurring” of private and official requirements
Proliferation of different schemes- Overlap and/or contradictions- Lack of harmonization - No equivalence
Access to higher-priced markets Less competition in markets
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Costs associated with private standards– Costs of compliance– Certification costs– Lack of price premium
Impact on small- and medium- sized farmers and enterprises
Driving supply chain modernization and investments
Faster upgrading Correcting underlying hygienic problems
Developmental ImplicationsDevelopmental Implications
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Applicability of SPS Agreement– Art. 1.1 and Annex A(1)– Art. 13– Scientific basis– Equivalence– Transparency
Mechanism/forum to address concerns Mechanism/forum to resolve disputes
Legal AspectsLegal Aspects
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Legal coverage: does it extend to Legal coverage: does it extend to private standards ? No private standards ? No consensus...consensus...
• Applies to all SPS measures affecting international trade
• Article 13 (SPS) :“Members are fully responsible under this Agreement for the observance of all obligations... Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of this Agreement by other than central government bodies. Members shall take such reasonable measures as may be available to them to ensure that non-governmental entities within their territories, as well as regional bodies ..., comply with the relevant provisions of this Agreement... Members shall ensure that they rely on the services of non-governmental entities for implementing SPS measures only if these entities comply with the provisions of this Agreement.”
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WTO/SPS Discussions on Private StandardsWTO/SPS Discussions on Private Standards
June 2005: St. Vincent and the Grenadines raised concern in SPS Committee about EurepGAP certification for bananas
October 2006: Information session with participation of EurepGAP and UNCTAD
June 2007: UNCTAD/ WTO joint information session on private standards
June 2008: WTO/STDF information session on facilitating compliance with private standards
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SPS Committee – next stepsSPS Committee – next steps
• Undertake study to compare private standards with international and official requirements (based on products / markets / standards/ data from WTO members)
• Encourage information sharing on studies regarding SPS-related private standards
• Organize ad hoc information sessions with private standards bodies and others
(G/SPS/W/230 - agreed, with changes, 9 October 2008)
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TBT CommitteeTBT Committee
Substantive provisions in CGP Substantive provisions in CGP main body of TBT main body of TBT AgreementAgreement
non-discrimination avoidance of
unnecessary barriers to trade
use / participation international standards
transparency / consultation
Obligations on non-governmental bodies
TBT Committee: July 2007• Kenya, Chile and Egypt: requested agenda item• Brazil, EC disagreed: Business-to-business standards outside scope of the TBT agreement• Doesn’t preclude future consideration
Marinus P.C. HuigePermanent Representation of
the Kingdom of the Netherlands, Geneva Switzerland
Tel: +41 (0)22 7481822email: [email protected]
email: [email protected]
website: www.wto.org