International rules and Institutions on food - Unitus · International rules and Institutions on...

International rulesand Institutions on food

Paolo Borghi

IP Erasmus

Global Food Law and Quality (GFLQ)

Viterbo – February 4th, 2014

Origins of GATT, creation of the WTO,and general legal framework about food

IP ERASMUS ON GLOBAL FOOD LAW AND QUALITY – VITERBO, FEBRUARY 2014Paolo Borghi, International Rules and Institutions on Food

early intention of the first GATT (1947): finding a temporary, and not strictly binding, legal instrument for trade regulation

“Protocol of provisional application”, signed in Geneva on 30th

October, 1947 (but de facto in force for nearly 50 years)

negotiation “rounds” (foreseen by article XXVIII bis):8 rounds since 1947 to 1986‐1994 (named “GATT”, followed by the year of revision: e.g. “GATT 1964” )

1986‐1984: “Uruguay Round”

Uruguay Round (1986‐1994)

Punta del Este Declaration (1986): first aim = a complete reform of the multilateral trading system, previously based only on the general principles of GATT 1947

GATT (1947 and further) is partly integrated by a set of international agreements regulating international trade; e.g.:‐countervailing duties‐subventions‐sanitary and phytosanitary measures‐dispute settlement mechanismor a specific trade sector; e.g.:‐agriculture‐services‐textiles‐intellectual property rights, etc.


Uruguay Round (1986‐1994)

In the new legal context, GATT is just an agreement among the others

Its central role still depends on its contents: general principles

“General interpretative note to Annex 1A”in case of a conflict between a GATT 1994 rule and a provision of an agreement in Annex 1A to the WTO chart, the provision

of the special agreement shall prevailto the extent of the conflict.

Main general principle set by GATT:non‐discrimination


Central role of GATT still depending on its contents:general principles

A) Non‐discrimination = “most favored nation” clause (art. I): duty not to apply differential treatment to products originatingin (or destined for) different WTO countries

(with some express exceptions: preferential trade areas, free trade areas, customs unions like EU)

B) “national treatment clause” (art. III)duty not to apply to domestic product a treatment which is worse than the treatment applied to like products imported from another WTO country


Main innovation of WTO system: “Understanding on rules and procedures governing the settlement of disputes” (briefly Dispute Settlement Understanding, or DSU)

significant improvements to the former GATT mechanism

‐members of the Panel from countries not involved‐final report adopted by the WTO General Council (Dispute Settlement Body, or DSB) in order to become legally binding‐the DSB can decide, only by consensus, not to approve it‐right to appeal the report to an Appellate Body‐a final decision on the dispute,” recommendations” for the country which is found in default‐a legal duty of “prompt compliance‐in case of failed (or “impracticable”) promptcompliance : right for the country suffering thebreach to apply a predetermined “retaliation”


The Agreement on agriculture

‐ first special discipline ever of multilateral trade in agricultural and fisheries products

‐ application field: only products listed in its Annex 1 = chapters 1 to 24 of the customs Harmonized System (International Convention on the Harmonized Commodity Description and Coding System), plus some other products listed in the Annex itself

‐ lots of food and feed products: ex., meat and products thereof, crustaceans, mollusks, eggs, honey, edible vegetables and fruits (including dried fruits), coffee, tea and other spices, cereals and products of the milling industry, fats and oils, beverages and spirits, etc.


What’s the subject of this agreement, exactly?

Economic issues of agricultural trade: three “pillars”:a)market accessb)domestic supportc)export subsidies

A)MARKET ACCESS

=WTO members are obliged to grant other members’agricultural productions a certain level of access to theirown internal agricultural market by:‐converting all the barriers other than duties (non‐tariff barriers: e.g. quantitative import restrictions, or variable import levies, minimum import prices, discretionary import licensing, etc.) into fixed customs duties (“tariffication”) , according to parameters established under “Modalities” (a separate operational text)‐lowering existing (or converted) customs duties according to a negotiated “road‐map”


Exceptions to market access obligations:‐“special treatment” ex para. 2 of Article 4 (products matching some special requirements, exempted from tariffication; or primary agricultural products predominant in the traditional diet of a developing country)

‐“special safeguard clause” (members allowed to apply additional duties on imports exceeding a trigger, or when the price falls below a trigger)

B) DOMESTIC SUPPORT

= States members to the WTO are obligedto limit the internal support to farmersand to avoid some kind of support measuresReasons: an uncontrolled domestic support potentiallyinduces lowered prices, production surplus, etc., frustratingthe effects of tariff reductions


Domestic support measures divided into three categories:

1)green box = all the domestic support measures exempted from reduction commitments: inter alia, the totally decoupled measures, or having no, or at most minimal, trade‐distorting effects, or the measures justified by particular reasons (e.g. which are part of an environmental program, or which are necessary for social reasons, such as food security reasons, etc.)

2)blue box = in between the amber and the green: e.g. partly decoupled support measures (to be allowed only during a transition period)

3)amber box = all the domestic support measures coupled with production and/or with price ( able to affect the competition between member States): subject to mandatory reduction


C) REDUCTION OF SUPPORTED AGRICULTURAL EXPORTS

by an average 36% of their value (compared to the average global value of supported exports in 1986‐1990), and by an average 21% of volume

non‐supported exports fall outside the scope of the Agreement, and aren’t subject to any reduction commitments

exports for the purpose of food aid todeveloping (or to least developed)countries aren’t subject to any reductioncommitments (allowed, provided thatthey’re not applied in a manner whichresults circumvention of export subsidycommitments)


The Agreement on Sanitaryand Phytosanitary Measures (SPS agreement)

some “non‐tariff” measures are established and/or maintained by WTO members for sanitary (including veterinary) and/or phytosanitary reasons

if the justification is genuine exempted from tariffication

if the alleged reasons are false protectionism is their real disguised justification (same protectionist effects as the ordinary customs duties, thus frustrating the trade liberalization which is the aim of the WTO system)

Formerly, only Article XX GATT … BUT …


XX GATT: too broad and general, not so suitable for the food sector (science‐based and safety‐based forms of disguised protection)

Application field of the SPS agreement: not applied to very general categories of products (foods, beverages or feeds)

need for a definition of “SPS measures”:

aimed at protecting animal or plant life or healthfrom risks arising from pests, diseases, organisms etc.

applied to protect human or animal life or health arising from additives, contaminants, toxins ordisease‐causing organisms in foods, beverages or feedstuffs

intended to protect human life or health from risks arising from diseases carried by animals, plants or products thereof, or from pests


“SPS measure” = substantial definition: the form is not relevant

laws, decrees, regulations, mandatory requirements and procedures (including end product criteria)

prescriptions about processes and production methods, or about testing, inspection, certification and approval procedures, quarantine treatments, packaging and labelling requirement directly related to food safety

purpose of SPS agreement?

to regulate the right of the WTO members to apply legitimate and non trade‐distorting, or at least justified, SPS measures to its food imports (and to imports of raw materials intended for food production)


FUNDAMENTAL PRINCIPLES: SPS measures must be1) based on sound science2) necessary

role of sound science:‐to identify if the measures can really address a certain risk

‐to verify whether an SPS measure hasbeen adopted in the correct way(i.e. scientifically justified) or not

‐to check its proportionality, etc.


“necessary” = (Article 5.6 SPS) Members shall ensure “that such measures are not more trade‐restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection” that no less restrictive, but equally effective, SPS measure is available, or technically or economically practicable

(Article 2.2 SPS) Members are requested to implement health measures “only to the extent necessary to protect human, animal or plant life or health”

Harmonization (Article 3 SPS): presumption of legitimacy

= of necessity= of scientific justification= of proportionality


“harmonized measure” = in full compliance with the standards developed by major international organizations

‐ as of food safety, standards, recommendations and guidelines of the Joint FAO/WHO Codex Alimentarius commission

‐ as of animal health, standards of the IOE (International Office of Epizootics)

‐ as of plants’ health, rules issued by the Secretariat of the IPPC (International Plant Protection Convention)(Annex A, Section 3, of the SPS Agreement)

the measure is presumed to be compliant with the SPS obligations of the importing member exemption from any burden of proving the measure is “necessary” or is “based on sound science”


1950: The first session of the Joint FAO/WHO Expert Committee on Nutrition stated:

"Food regulations in different countries are often conflicting and contradictory. Legislation governing preservation, nomenclature and acceptable food standards often varies widely from country to country. New legislation not based on scientific knowledge isoften introduced, and little account may be taken of nutritionalprinciples in formulating regulations" (FAO/WHO, 1950)

for a decade: some joint FAO and WHO meetings of experts, to collect and review standards concerning specific issues (e.g., food additives)

Codex Alimentarius


Codex alimentarius

1961: the 11th session of the Conference of FAO approved the resolution to establish the Codex Alimentarius

1963: the 16th World Health Assembly approved the establishment of the Joint FAO/WHO Food Standards Programme with the Codex Alimentarius Commission as its main organ

Codex Commission creates and maintains the broader collection, continuously updated, of standards, recommendations and guidelines about food production, handling, trade, etc. for decades it has constituted the reference point for food businesses and lawmakers worldwide


Codex alimentarius

Structure of the Codex: “Volumes”

Volume 1A ‐ General requirementsVolume 1B ‐ General requirements (food hygiene)Volume 2A ‐ Pesticide residues in foods (general texts)Volume 2B ‐ Pesticide residues in foods (maximum residue limits)Volume 3 ‐ Residues of veterinary drugs in foodsVolume 4 ‐ Foods for special dietary uses (including foods for infants andchildren)Volume 5A ‐ Processed and quick‐frozen fruits and vegetablesVolume 5B ‐ Fresh fruits and vegetablesVolume 6 ‐ Fruit juicesVolume 7 ‐ Cereals, legumes and derived products and vegetable proteinsVolume 8 ‐ Fats and oils and related productsVolume 9 ‐ Fish and fishery productsVolume 10 ‐Meat and meat products; soups and broths


Codex alimentarius

Structure of the Codex: “Volumes”

Volume 11 ‐ Sugars, cocoa products and chocolate and miscellaneous productsVolume 12 ‐Milk and milk productsVolume 13 ‐Methods of analysis and sampling

Example: Volume 1A ‐ General Requirements1. General Principles of the Codex Alimentarius2. Definitions for the Purpose of Codex Alimentarius3. Code of Ethics for International Trade in Foods4. Food Labelling5. Food Additives ‐ including the General Standard for Food Additives6. Contaminants in Food ‐ including the General Standard for Contaminants and Toxins in Foods7. Irradiated Foods8. Food Import and Export Food Inspection and Certification Systems


Codex alimentarius

Structure of the Commission: Committees

General Subject Committees: relevance for all Commodity Committees and, since this work applies across the board to all commodity standards, General Subject Committees are sometimes referred to as "horizontal committees". There are nine such committees:General Principles, hosted by FranceFood Labelling, hosted by CanadaMethods of Analysis and Sampling, hosted by HungaryFood Hygiene, hosted by the USPesticide Residues, hosted by the Netherlands

Food Additives and Contaminants, hosted by the Netherlands

Import/Export Inspection and Certification Systems, hosted by AustraliaNutrition and Foods for Special Dietary Uses, hosted byResidues of Veterinary Drugs in Food, hosted by the US


Codex alimentarius

Structure of the Commission: Committees

Commodity Committees: responsibile for developing standards for specific foods or classes of food (often referred to as "vertical" committees).There are 16 such committees:Fats and Oils, hosted by the United KingdomFish and Fishery Products, hosted by Norway

Milk and Milk Products, hosted by New Zealand

Fresh Fruits and Vegetables, hosted by Mexico

Cocoa Products and Chocolate, hosted by Switzerland

Sugars, hosted by the United KingdomProcessed Fruits and Vegetables, hosted by the USVegetable Proteins, hosted by CanadaCereals, Pulses and Legumes, hosted by the United StatesProcessed Meat and Poultry Products, hosted by Denmark

Soups and Broths, hosted by Switzerland

Meat Hygiene, hosted by New Zealand

Natural Mineral Waters, hosted by Switzerland


Codex alimentarius

Statutes:Revision of Codex standards: The Commission and its subsidiary bodies are committed to revision of Codex standards and related texts as necessary to ensure they are consistent with and reflect current scientific knowledge.

Each member of the Commission is responsible for identifying and presenting to the appropriate committee any new scientific and other relevant information that may warrant revision of existing Codex standards or related texts.

voluntary applicationas an effect of the WTO Agreements (namely, of the SPS and the TBT Agreements) almost legally binding


basic right of WTO members:to determine their own level of health protection

counterbalance: duty to minimize negative trade effects, when determining their own appropriate level of SPS protection (Article 5.4 SPS)

indications of a possible SPS non‐compliance of a measure:

a)the importing country adopts different “appropriate levels”of health or life protection in relation to different countriesb)the different levels are “arbitrary and unjustifiable”c)such measures result in a “discrimination or a disguised restriction on international trade”

(Article 5.5, based on the non‐discrimination principle)


milestones of the above SPS rules:a legitimate measure means a science‐based onescience can always determine whether a SPS measure is justified or not

unfortunately, science is seldom so sure about its own resultsscientific knowledge is mostly relativeno scientific result can be considered as absolute and/or finalthe only correct statement about a certain product (from a scientific point of view) is that “a risk has been proved” or that “no risk has still been proved”

(see US law perspective: at most, a product is “generally regarded as safe”)


what if the science is groping in the dark?

scientific uncertainty (about a certain productand/or a certain risk) is a quite normal “impasse”in the evolution of the human knowledge

see Article 5.7 SPS: “precaution” = a basis for some members’rights and faculties, when scientific certainty is lacking, to enact the same SPS measures as if they were scientifically demonstrated as necessary

“enhanced protection” of the concerned assets and values

attempt to preserve a value even before a possible injury occurs (better, when it is not certain that it will occur)


“enhanced protection” … in what sense?

attempt to defend the endangered value even if the prospect is uncertain, and no damage may result in the end

for policy‐makers: a hypothetic comparison between action and inaction, in view of the likely consequences, asking themselves if they can bear the risks of inaction?

scientific justification of a measure right to adopt it

scientific uncertainty about the justification of a measure right to adopt it

no difference?


in case of uncertainty …

‐measures must be temporary, provisional

‐measures are accompanied by a duty‐to‐research (a legal duty to try to find scientific evidence)

‐measures must be removed if the risk, after a reasonable period, has not been confirmed by new scientific data, or by a significant review of the previously available ones

‐after the precautionary measures are removed the importing member has finally to accept the exporter’s food safety standards (“equivalence”, Article 4 SPS)

‐otherwise: automatic breach of the SPS Agreement


studies and jurisprudence (WTO Panels): trying to examine the juridical notion of “risk”, of “relevant risk”

(e.g., by excluding the relevance of the s.c. “theoretical risk”)

EC ‐Measures concerning meat and meat products (Hormones), Report of the Appellate Body, 16th January 1998 (WT/DS26/AB/R, WT/DS48/AB/R)

EC ‐Measures affecting asbestos and asbestos‐containing products, Report of the Appellate Body, 12th March 2001 (WT/DS135/AB/R)

EC ‐Measures affecting the approval and marketing of biotech products, Report of the Panel, 29th September 2006 (WT/DS291/R, WT/DS292/R, WT/DS293/R)



scientific uncertainty does not mean a merely “theoretical” risk

scientific uncertainty is not equal to a mere hypothesis of risk

making them equal would result in pretending that a product is absolutely safe: a proof of absolute safety would be required, instead of the absence of a proof of risk (which is the only scientifically correct perspective)

making them equal would result in pretending a “zero‐risk”standard, which is not possible



scientific uncertainty = a state of the scientific knowledge where:a)some scientific information concerning the existence of a risk is resulting from studies and from experimental datab)some kind of proof has been found by scientistsc)a relatively “final” confirmation is currently searched by the worldwide scientific communityd)the results of such researches are not univocal, or are denied by a relevant part of the scientific community, on earnest scientific and experimental basis

scientific uncertainty = different from hypothetical risk


The Agreementon Technical Barriers to Trade (TBT agreement)

what do we mean by saying “technical barriers”?mainly, technical mandatory requirements for products

since they’re mandatory, product’s compliance can condition its presence on the marketplace

Examples:‐mandatory dimensions of packaging‐use of allowed materials or substances in packaging‐types of packaging‐compliance with some voluntary harmonized rules (such as ISO norms, which means quality certifications, etc.)‐labeling and its mandatory contents, fixed by law


very frequently applied on foods a relevant matter for the food sector

significant differences among WTO countries obstacles to trade

possible introduction despite they’re not justifiable simply to hinder trade

aim of the TBT Agreement:to limit the use of specious requirements, starting from the statement of the basic right of WTO members to adopt

technical standards whenever they deem them as appropriate to ensure their own safety level applied


Article 2.1 TBT:“Members shall ensure that in respect of technical regulations, products imported (…) shall be accorded treatment no less favorable than that accorded to like products of national originand to like products originating in any other country”

a non‐discrimination principle (a “national treatment” duty)

•no technical barrier can be upheld when the reasons for their adoption no longer exist (… a scientific justification rule)

•no technical barrier can be upheld when the same circumstances (or objectives) can be addressed (or pursued) by less restrictive technical rules (… a “necessity” rule)

•duty to harmonize national legislation basing on international standards (e.g. Codex Alimentarius)


Finally … the names!

“What’s in a name?That which we call a rose, and by any other name would smell as sweet.”(W. Shakespeare, Romeo and Juliet)

Shakespeare was an incredible writerand poet …but a very, very bad trader

in trading experience, names are veryimportant, since they can be fundamental to attract customerstrademarks, geographical indications …generally

IP rights


The TRIPS Agreement(Trade‐Related aspects of IP rightS)

some very general principles of IP rights in Part I

among those principles:

‐WTO members may implement in their law more extensive protection than required by the TRIPs (de minimis standard)

‐definitions of different kinds of IP rights (e.g.: trademarks, geographical indications, patents, etc.)

‐the legal protection granted to IP rights by previous international agreements (such as “Paris Convention (1967)”, “Berne Convention (1971)”, and “Rome Convention”) is binding for WTO members also under TRIPS


Since it protects IP rights already protected also by a series of previously existing international conventions …what’s the value‐added innovation of TRIPS?

“enforcement tools”

Article 42 TRIPS: WTO members are obliged to make civil judicial procedures concerning the enforcement of IP rights equally available to all (domestic and foreign) right holders

Article 41.2 TRIPS: procedures concerning the enforcement of IP rights must be fair and equitable, and not unnecessarily complicated or costly, nor entail unreasonable time‐limits or unwarranted delaysbut, most of all …


“enforcement tools”

according to previous conventions in force, regulating IP rights, they were endowed only with the ordinary international law sanctions (e.g. unilateral retaliation)

as an effect of the formal recognition of the protection:they’re now subject to the WTO dispute settlement mechanism, and to all its legal instruments

many WTO members: different kinds, techniques and levels of protection:necessity to establish a base of common principles concerning IP protection, to reduce some of the difficulties arising from those differences


peculiarity of food marketing strategies, used worldwide mostly on wines and spirits: ad hoc discipline of geographical indications (GIs) (Article 22 TRIPS)

Differences among WTO members:‐some have laws specifically designed for Gis (ex. EU)‐others apply their trademark rules, as such, to Gis (ex.: US)‐some have established a public register of protected names‐others prefer a judicial case‐by‐case approach

both EU definitions of PDOs and of PGIs fall within the TRIPs definition of Gis Article 22.1 TRIPS: “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”


In general, for food other than wines and spirits, WTO members are expected to prevent any fraudulent use of GIs on food, and forced to:a)introduce disciplines that do not permit such use, where there is an actual and practical risk of misleading consumersb)punish, by means of an effective system, whoever makes such a illicit use

Articles 22 and 23 TRIPS:additional protection for wines and spirits

for those products, WTO members shallprevent any misleading use of GIs, evenwhen the risk of consumer deception ismerely theoretical and abstract


for wines and spirits

the use of expressions such as “kind”, “type”, “style”, “imitation” and similar, clearly warning a careful consumer that he is not purchasing the “original” product is forbidden

the use of such expressions on the label of a food product other than wines and spirits is allowed

as an effect: full protection of Gis only for wines and spirits

moreover …

‐commitment for negotiations aimed at increasing the protection of individual geographical indications “under Article 23”(see e.g. the project of a multilateral register of Gis, proposed by the EU, currently discussed in the framework of the WTO Doha round, but de facto stalled: many WTO countries seem more interested in a less regulated framework )


Article 24.4 TRIPS: designations already protected as a trademark by the legislation of a WTO member can’t be protected as GIsGIs that have become the common name of a product in the territory of a member can’t be protected as GIs

in the TRIPS, GIs are perhaps the most controversial IP rights:‐unfinished discussion in the context of the multilateral trade negotiations‐matter of an important WTO dispute

conclusions: EU had to review its former discipline on PDOs and on PGIs, by adopting EC Regulation No. 510/2006, especially with regard to rules on GIs for products imported from third countries


and finally …

LET’S GO FOR A DINNER!

… hoping our food doesn’t require any SPS measure!


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