World Trade Organisation Sanitary and Phytosanitary Agreement

(4) In determining the appropriate level of sanitary or phytosanitary protection, Members should take into account the objective of minimising the negative impact on trade. Sanitary and phytosanitary measures can naturally lead to trade restrictions. All governments accept that certain trade restrictions may be necessary to ensure food safety and the protection of animal and plant health. However, governments are sometimes under pressure to go beyond what is necessary to protect health and use sanitary and phytosanitary restrictions to protect domestic producers from economic competition. This pressure is likely to increase as other trade barriers are removed as a result of the Uruguay Round agreements. A sanitary or phytosanitary restriction, which is not really necessary for health reasons, can be a very effective protectionist means and, because of its technical complexity, be a particularly misleading obstacle and difficult to complain about. The SPS Agreement increases the transparency of sanitary and phytosanitary measures. Countries should establish SPS measures based on an appropriate assessment of the actual risks and, upon request, communicate the factors they have taken into account, the assessment procedures they have used and the risk they have found acceptable. Although many governments already apply risk assessment in their management of food safety and animal and plant health, the SPS Agreement encourages the wider application of systematic risk assessment by all WTO member governments and for all products concerned. 16 J Knight, “Advance Australia Fair? The Anatomy and Pathology of an 84-Year Trade Dispute” (2005) 5(2) Journal of Public Affairs 112.b) Members disclose confidential information that would impede the application of sanitary or phytosanitary law or prejudice the legitimate business interests of certain companies. 5. With a view to achieving a consistent application of the concept of an adequate level of sanitary or phytosanitary protection against risks to human or animal life or health or to human and plant health, each Member shall avoid arbitrary or unjustified differences in the levels it deems appropriate in different situations where such differences lead to disguised discrimination or restriction. international trade.

Members shall cooperate within the Committee referred to in Article 12(1), (2) and (3) to develop guidelines for the practical implementation of this provision. When developing the guidelines, the Committee shall take into account all relevant factors, including the exceptional nature of the risks to human health to which persons voluntarily expose themselves. Due to climatic differences, existing pests or diseases or food safety conditions, it is not always appropriate to impose the same sanitary and phytosanitary requirements on food, animal or plant products from different countries. As a result, sanitary and phytosanitary measures sometimes vary depending on the country of origin of the food, animal or plant product concerned. This is taken into account in the PLC agreement. Governments should also recognize disease-free zones that may not respect political boundaries and adapt their needs accordingly to the products of those areas. However, the agreement addresses unjustified discrimination in the application of sanitary and phytosanitary measures, whether in favour of domestic producers or foreign suppliers. 1 In this Agreement, the reference to Article XX, let. b, also includes the chapeau of this Article. (back to text) 2 For the purposes of Article 3, paragraph 3, a scientific justification shall be provided where, on the basis of a review and evaluation of the available scientific information in accordance with the relevant provisions of this Convention, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its adequate level of sanitary or phytosanitary protection.

(back to text) 3 For the purposes of Article 5(6), a measure shall not be more trade-restrictive than necessary, unless there is another measure reasonably available, taking into account technical and economic feasibility, which achieves an adequate level of sanitary or phytosanitary protection and significantly reduces trade. (back to text) 4 For the purposes of these definitions, the term “animal” includes fish and wildlife; the plant includes forests and wild flora; Pests include weeds; and contaminants include pesticide and veterinary drug residues, as well as foreign substances. (return to text) 5 Sanitary and phytosanitary measures such as laws, regulations or ordinances of general application. (back to text) 6. Where nationals are designated in this Agreement, in the case of a separate customs territory which is a member of the WTO, the term shall be defined as natural or legal persons domiciled or having a real and effective industrial or commercial establishment in that customs territory. (back to text) 7 Control, inspection and approval procedures include, but are not limited to, sampling, testing and certification procedures. (back to text) 27 Natural Resources Institute, “SPS measures and their implications for trade in forest products” (Ethical Trade Policy Watch Brief, Issue 2, United Kingdom, March 2000) (last accessed 14 March 2003). In the Context of the Tokyo Round of Multilateral Trade Negotiations (1974-79), an Agreement on Technical Barriers to Trade was negotiated (THE TBT Agreement, 1979 or “Code of Standards”) (see note 2). Although this agreement was not developed primarily to regulate sanitary and phytosanitary measures, it included technical requirements arising from food safety and animal and phytosanitary measures, including limit values for pesticide residues, inspection and labelling requirements. Governments that were members of the 1979 TBT Convention have agreed to apply relevant international standards (such as food safety standards developed by Codex) unless they consider that such standards would not adequately protect health. They also agreed to communicate to other Governments, through the GATT Secretariat, all technical regulations that are not based on international standards.

The 1979 TBT Agreement contained provisions for the settlement of trade disputes arising from the application of food safety and other technical restrictions. The Agreement on Sanitary and Phytosanitary (SPS) Measures builds on previous GATT rules to limit the use of unjustified sanitary and phytosanitary measures for trade protection. The fundamental objective of the SPS Agreement is to defend the sovereign right of each government to ensure the level of health protection it deems appropriate, but to ensure that these sovereign rights are not abused for protectionist purposes and do not lead to unnecessary obstacles to international trade. TBT Technical barriers to trade covered by the WTO Agreement on Technical Barriers to Trade. .