1. The SPS Agreement and its provisions relating to scientific evidence
The SPS Agreement and Scientific Justification
Geneva, June 2000
The SPS Agreement and its provisions relating to scientific evidence
WTO
Slide 1

2. The SPS Agreement and Scientific Justification
Geneva, June 2000
Three “SPS Disputes”
“Hormones” EC - Measures Concerning Meat and Meat Products (Hormones)
“Salmon” Australia - Measures Affecting Importation of Salmon
“Varietals” Japan - Measures Affecting Agricultural Products
WTO
Slide 2

3. The SPS Agreement and Scientific Justification
Geneva, June 2000
“science”
Basic Rights and Obligations (Article 2)
Harmonization (Article 3)
Int’l org. (Article 12:3)
Risk Assessment (Article 5)
Expert advice (Article 11:2)
WTO
Slide 3

4. Basic Rights and Obligations (Article 2)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Basic Rights and Obligations (Article 2)
Article 2.1
“Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement”
WTO
Slide 4

5. Basic Rights and Obligations (Article 2)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Basic Rights and Obligations (Article 2)
Article 2.2
“Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.”
WTO
Slide 5

6. Basic Rights and Obligations
The SPS Agreement and Scientific Justification
Geneva, June 2000
Basic Rights and Obligations
Article 2.2
applied only to the extent necessary to protect human, animal or plant life or health
shall ensure:
is based on scientific principles
is not maintained without sufficient scientific evidence
except as provided for in paragraph 7 of Article 5.
WTO
Slide 6

7. Article 2:2 (Basic Rights and Obligations)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 2:2 (Basic Rights and Obligations)
Hormones
Salmon
Varietals
focus on risk assessment (Article 5)
WTO
Slide 7

8. Article 2:2 (Basic Rights and Obligations)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 2:2 (Basic Rights and Obligations)
Panel - Varietals
“In our view, for a phytosanitary measure to be ‘maintained without’ sufficient scientific evidence, there needs to be a lack of an objective relationship between, on the one hand, the phytosanitary measure at stake (in casu, the varietal testing requirement) and, on the other hand, the scientific evidence submitted before the Panel (in casu, in particular the six studies referred to by Japan)”.
Japan -Varietals, Panel Report, para
WTO
Slide 8

9. Article 2:2 (Basic Rights and Obligations)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 2:2 (Basic Rights and Obligations)
Panel - Varietals
The Panel reviewed the parties’ submissions and the advice from the scientific experts (entomology, fumigation) and concluded:
“it has not been sufficiently demonstrated that there is a rational relationship between the varietal testing requirement and the scientific evidence submitted to the Panel”
Japan -Varietals, Panel Report, para. 8.42
WTO
Slide 9

10. Basic Rights and Obligations
The SPS Agreement and Scientific Justification
Geneva, June 2000
Basic Rights and Obligations
Article 2.2
applied only to the extent necessary to protect human, animal or plant life or health
shall ensure:
is based on scientific principles
is not maintained without sufficient scientific evidence
except as provided for in paragraph 7 of Article 5
WTO
Slide 10

11. Article 2:2 (Basic Rights and Obligations)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 2:2 (Basic Rights and Obligations)
Panel - Varietals
“lack of an objective relationship”
“measure”
“the scientific evidence submitted before the Panel”
 Article 2.2 (?)
WTO
Slide 11

12. Article 2:2 (Basic Rights and Obligations)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 2:2 (Basic Rights and Obligations)
AB - Varietals
Upheld.
(with respect to apples, cherries, nectarines and walnuts)
Japan -Varietals, AB, para. 85.
WTO
Slide 12

13. The SPS Agreement and Scientific Justification
Geneva, June 2000
What about the exception to the rule of basing SPS measures on science? (Article 5.7)
Article 2.2
Article 5.7
“Article 5.7 operates as a qualified exemption from the obligation under Article 2.2 to maintain SPS measures without sufficient scientific evidence.”
Varietals, AB Report, para. 80
WTO
Slide 13

14. Basic Rights and Obligations
The SPS Agreement and Scientific Justification
Geneva, June 2000
Basic Rights and Obligations
Article 2.2
applied only to the extent necessary to protect human, animal or plant life or health
shall ensure:
is based on scientific principles
is not maintained without sufficient scientific evidence
except as provided for in paragraph 7 of Article 5
WTO
Slide 14

15. Where scientific evidence is insufficient (Article 5.7)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Where scientific evidence is insufficient (Article 5.7)
SPS Agreement, Article 5.7
“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.”
WTO
Slide 15

16. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
Panel - Varietals
Japan specifically invoked 5:7. It claimed that that its measure could be considered a provisional measure
The Panel found that four cumulative elements needed to be shown for a measure to be consistent with Article 5.7.
WTO
Slide 16

17. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
Panel - Varietals
Allowed to provisionally adopt a measure if: 1
the measure is imposed in respect of a situation where “relevant” scientific information is insufficient;
and 2
the measure is adopted “on the basis of available pertinent information”
WTO
Slide 17

18. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
Panel - Varietals
+ additional obligations: 3
“seek to obtain the additional information necessary for a more objective assessment of risk”; and,
and
“review the … phytosanitary measure accordingly within a reasonable period of time”. 4
WTO
Slide 18

19. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
Panel - Varietals
Panel examined only the third and fourth elements
no evidence that Japan had sought to obtain information necessary for a more objective assessment of the risk…
... and reviewed the measure accordingly within a reasonable period of time
…….
 Article 5.7
 Article 2.2
WTO
Slide 19

20. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
AB - Varietals
Upheld.
Confirmed that four requirements are cumulative
Agreed with the Panel that Japan had not sought to obtain additional information
Noted that the “reasonable period of time” had to be established on a case-by-case basis
WTO
Slide 20

21. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
Panel - Hormones
The EC did not invoke Article 5.7, it was explicitly stated that the import prohibition was not a provisional measure.
The EC invoked the “precautionary principle” as a general principle of law and argued that Articles 5.1 and 5.2 did not prevent Members from being cautious when setting health standards in the face of conflicting scientific evidence and uncertainty.
WTO
Slide 21

22. Article 5:7 “qualified exemption”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5:7 “qualified exemption”
AB - Hormones
Did not take a position on the status of the precautionary principle in international law.
Noted that the precautionary principle “found reflection in Article 5.7 of the SPS Agreement”.
Agreed with the finding of the Panel that the precautionary principle - to the extent it is not explicitly incorporated in Article did not override the provisions of Article 5.1 and 5.2 of the SPS Agreement.
WTO
Slide 22

23. The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5 - Risk Assessment “Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection”
Article 2.2
Article risk assessment
Article 5
Article 5.7 insufficient scientific ...
Article 5.5 consistency
WTO
Slide 23

24. Risk Assessment (Article 5.1 - 5.3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Risk Assessment (Article )
Article 5.1
“Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.”
WTO
Slide 24

25. Risk Assessment (Article 5.1 - 5.3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Risk Assessment (Article )
Article 5.2
“In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment”
WTO
Slide 25

26. Risk Assessment (Article 5.1 - 5.3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Risk Assessment (Article )
Article 5.3
“In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: the potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.”
WTO
Slide 26

27. Risk Assessment (Article 5.1 - 5.3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Risk Assessment (Article )
measure has to be based on a risk assessment
what to take into account (available scientific evidence, etc.)
for animal and plant health, what economic factors to take into account
Article 5.1
Article 5.2
Article 5.3
WTO
Slide 27

28. Article 5.1-5.3 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Focus on 2.2 “scientific evidence”
Hormones
Salmon
Varietals
food safety ( )
animal health ( )
WTO
Slide 28

29. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones
The definition of a risk assessment for food-borne risks
"the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs".
SPS Agreement, Annex A, Paragraph 4, second sentence
WTO
Slide 29

30. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones 1
“identify the adverse effects on human health (if any) arising from the presence of the hormones at issue when used as growth promoters in meat or meat products, and 2
“if any such adverse effect exists, evaluate the potential or probability of occurrence of these effects
WTO
Slide 30

31. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones
Existence of a risk assessment?
The EC had invoked several scientific reports that the experts advising the Panel considered to be risk assessments
For five of the hormones, the Panel assumed that the EC had demonstrated the existence of a risk assessment.
WTO
Slide 31

32. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones
However, the Panel found that the EC measure was not based on the scientific evidence submitted.
WTO
Slide 32

33. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones
“In our view, the scientific conclusion reflected in the EC measures in dispute, i.e., that the use of the hormones in dispute for growth promotion purposes, even in accordance with good practice, is not safe, does not conform to any of the scientific conclusions reached in the evidence referred to by the European Communities. ...”
EC-Hormones, Panel Report, para
WTO
Slide 33

34. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones
“ The EC import ban of meat and meat products from animals treated with any of the five hormones at issue for growth promotion purposes, allegedly necessary to protect human health, in so far as it also applies to meat and meat products from animals treated with any of these hormones in accordance with good practice, is, therefore, not based on the scientific evidence submitted to the Panel.”
EC-Hormones, Panel Report, para
WTO
Slide 34

35. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Hormones
Article 2.2
“lack of an objective relationship”
measure
the scientific evidence before the Panel
scientific conclusions reached in each of the studies
the scientific conclusion reflected in the measure
compared to
 Article 5.1
WTO
Slide 35

36. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
AB - Hormones
Upheld finding on 5.1.
lack of a “rational relationship” between measure and science
other points:
Article 5.2 not a closed list (risk related to control and other non-scientific factors could be considered)
Article 5.1 is not prescriptive on who does the risk assessment.
WTO
Slide 36

37. Article 5.1-5.3 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Article 2
Hormones
Salmon
Varietals
food safety ( )
animal health ( )
WTO
Slide 37

38. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Salmon
The definition of a risk assessment for pest or disease-borne risk
"the evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measure which might be applied, and of the associated potential biological and economic consequences".
SPS Agreement, Annex A, Paragraph 4, first sentence
WTO
Slide 38

39. Risk Assessment (Annex A - Definition)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Risk Assessment (Annex A - Definition)
The difference between the two definitions:
Food borne: evaluation of the potential for adverse effects on human or animal health
Disease or pest risk: an evaluation of the likelihood of entry, establishment or spread of a disease, and the associated potential biological and economic consequences
WTO
Slide 39

40. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Salmon 1
“identify the disease(s) whose entry, establishment or spread within its territory it wants to prevent as well as the associated potential biological and economic consequences 2
“evaluate the likelihood of entry, establishment or spread of these diseases, as well as the associated potential biological and economic consequences; and, 3
“evaluate the likelihood of entry, establishment and spread of these diseases according to the SPS measure which might be applied
WTO
Slide 40

41. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
Panel - Salmon
= no violation of Article 5.1
Consistent
24 diseases identified ...
No finding - assumed consistent
some elements of both possibility and probability
nevertheless surprised that Australia had not used a previous risk assessment
evaluates to some extent a series of risk reduction factors (five quarantine options) 1
“identify” 2
“evaluate the likelihood of entry 3
“… according to the SPS measure …”
WTO
Slide 41

42. Article 5.1-5.2 risk assessment
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article risk assessment
AB - Salmon
 Article 5.1
 Article 2.2 1
“identify”
Consistent (agreed with Panel)
Requirement not met (disagreed)
“some” evaluation of likelihood was not enough
referred to experts’ opinions that had agreed that an evaluation and expression of probability or likelihood, either quantitative or qualitative was crucial to a risk assessment.
“some” evaluation was not enough 2
“evaluate the likelihood of entry 3
“… according to the SPS measure …”
WTO
Slide 42

43. The SPS Agreement and Scientific Justification
Geneva, June 2000
summary so far
Risk Assessment (Article )
Risk Assessment (Article )
Scientific evidence (Article 2.2)
Hormones
Salmon
Varietals
Rational relationship between the measure and the science
The approach to a risk assessment:
food-borne: identify / evaluate potential
disease- or pest borne: identify / evaluate likelihood / according to measure applied
WTO
Slide 43

44. The SPS Agreement and Scientific Justification
Geneva, June 2000
Article 5 - Risk Assessment “Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection”
Article 2.2
Article risk assessment
Article 5
Article 5.7 insufficient scientific ...
Article 5.5 consistency
WTO
Slide 44

45. “consistency” (Article 5.5)
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5)
“With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade. Members shall cooperate in the Committee, in accordance with paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical implementation of this provision. In developing the guidelines, the Committee shall take into account all relevant factors, including the exceptional character of human health risks to which people voluntarily expose themselves”
WTO
Slide 45

46. “consistency” (Article 5.5)
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5)
“With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.
WTO
Slide 46

47. “consistency” (Article 5.5)
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5)
Not an issue
Hormones
Salmon
(Varietals)
Three pronged test Q1 Q2 Q3
WTO
Slide 47

48. “consistency” (Article 5.5)
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5)
Are the differences in levels of protection “arbitrary or unjustifiable”? Q2 Q1
Do the differences result in “discrimination or a disguised restriction on international trade?” Q3
Are the situations comparable? Are there different levels of protection?
Panel AB
WTO
Slide 48

49. Article 5.5 - “consistency”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article “consistency”
Panel - Hormones
SITUATIONS 1
Different treatment for: administered natural hormones for growth promotion compared to (i) those occurring endogenously in meat and other foods; …. 2
Different treatment for: synthetic hormones for growth promotion compared to natural hormones occurring endogenously in meat and other foods 3
Different treatment for: hormones used for growth-promotions purposes and carbadox (anti-microbial growth-promoter used as a feed additive in swine production)
WTO
Slide 49

50. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION 1
Different treatment for: administered natural hormones for growth promotion compared to those occurring endogenously in meat and other foods Q1 Q2 Q3
Comparable? (Yes)
Yes. Same potential adverse health effect (carcinogenicity)
Different levels of protection? (Yes)
Yes. “No residue” allowed level as opposed to unlimited residue level.
WTO
Slide 50

51. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION 1
Different treatment for: administered natural hormones for growth promotion compared to (i) those occurring endogenously in meat and other foods; Q1 Q2 Q3
AB: Reversed
Are the differences in levels of protection “arbitrary or unjustifiable”? (Yes.)
The potential for adverse effects are the same (either for administered or endogenous).
The total residue level of natural hormones in meat from treated animals falls well within the physiological range of levels found in meat from untreated animals, which levels vary according to sex and age of the animal
The residue level of natural hormones in many natural products (such as eggs and soya oil) is much higher than the level of residues of these hormones administered for growth promotion - as well as the total residue level of these hormones - in treated meat
Significant difference in levels of protection
WTO
Slide 51

52. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION 1
Different treatment for: administered natural hormones for growth promotion compared to (i) those occurring endogenously in meat and other foods; Q1 Q2 Q3
“We do not share the Panel's conclusions that the above differences in levels of protection in respect of added hormones in treated meat and in respect of naturally-occurring hormones in food, are merely arbitrary and unjustifiable. To the contrary, we consider there is a fundamental distinction between added hormones (natural or synthetic) and naturally-occurring hormones in meat and other foods.”
Hormones, AB Report, para. 221.
AB: Reversed
WTO
Slide 52

53. Article 5.5 - “consistency”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article “consistency”
Panel - Hormones
SITUATIONS 1
Different treatment for: administered natural hormones for growth promotion compared to (i) those occurring endogenously in meat and other foods; (ii) those used for therapeutic or zootechnical purposes 2
Different treatment for: synthetic hormones for growth promotion compared to natural hormones occurring endogenously in meat and other foods 3
Different treatment for: hormones used for growth-promotions purposes and carbadox (anti-microbial growth-promoter used as a feed additive in swine production)
WTO
Slide 53

54. The SPS Agreement and Scientific Justification
Geneva, June 2000 2
Different treatment for: synthetic hormones for growth promotion compared to natural hormones occurring endogenously in meat and other foods Q1 Q2 Q3
Are the differences in levels of protection “arbitrary or unjustifiable”? (Yes.)
Panel found that there was no evidence that synthetic hormones were inherently more dangerous than natural hormones, or that they were unsafe.
No justification for a significant difference in levels of protection.
AB: Reversed
WTO
Slide 54

55. Article 5.5 - “consistency”
The SPS Agreement and Scientific Justification
Geneva, June 2000
Article “consistency”
Panel - Hormones
SITUATIONS 1
Different treatment for: administered natural hormones for growth promotion compared to (i) those occurring endogenously in meat and other foods; (ii) those used for therapeutic or zootechnical purposes 2
Different treatment for: synthetic hormones for growth promotion compared to natural hormones occurring endogenously in meat and other foods 3
Different treatment for: hormones used for growth-promotion purposes and carbadox (anti-microbial growth-promoter used as a feed additive in swine production)
WTO
Slide 55

56. The SPS Agreement and Scientific Justification
Geneva, June 2000 3
Different treatment for: hormones used for growth-promotions purposes and carbadox (anti-microbial growth-promoter used as a feed additive in swine production) Q1 Q2 Q3
Do the differences result in “discrimination or a disguised restriction on international trade?” (Yes.)
significant difference in levels of protection
no plausible justification for this difference
leads to an import ban
+ objectives other than health (reducing beef surplus)
+ the ban on administered hormones favoured consumption of domestic meat over US meat
EU pork meat sector is without surpluses - competitiveness a higher priority
AB: Reversed
WTO
Slide 56

57. The SPS Agreement and Scientific Justification
Geneva, June 2000 3
Different treatment for: hormones used for growth-promotions purposes and carbadox (anti-microbial growth-promoter used as a feed additive in swine production) Q1 Q2 Q3
“We are unable to share the inference that the Panel apparently draws that the import ban on treated meat and the Community-wide prohibition of the use of the hormones here in dispute for growth promotion purposes in the beef sector were not really designed to protect its population from the risk of cancer, but rather to keep out US and Canadian hormone-treated beef and thereby to protect the domestic beef producers in the European Communities.”
Hormones, AB Report, para. 245.
AB: Reversed
WTO
Slide 57

58. “consistency” (Article 5.5) - summary -
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5) - summary - Q1 Q2 Q3 1
Violation of 5:5
AB: Reversed 2 3
WTO
Slide 58

59. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION
3&4
Canadian adult, wild ocean-caught salmon for human consumption is restricted while, on the other hand, whole frozen herring for use as bait and live ornamental finfish are allowed access. Q1 Q2 Q3
Comparable? (Yes)
In both situations there is at least one common disease of concern
The consequences associated with disease can be presumed to be at least similar (pest- or disease-borne risk)
Different levels of protection? (Yes)
Salmon is effectively prohibited. Other aquatic animals allowed in (without control for bait, and with control for ornamental finfish)
AB: Upheld
WTO
Slide 59

60. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION
3&4
Canadian adult, wild ocean-caught salmon for human consumption is restricted while, on the other hand, whole frozen herring for use as bait and live ornamental finfish are allowed access. Q1 Q2 Q3
Are the differences in levels of protection “arbitrary or unjustifiable”? (Yes.)
Panel argued that since the level of protection for salmon is higher, one would expect a higher risk for salmon than for the other fish. Yet the evidence was to the contrary.
Canada had raised a presumption that bait / ornamental fish posed a higher risk which Australia had not rebutted.
AB: Upheld
WTO
Slide 60

61. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION
3&4
Canadian adult, wild ocean-caught salmon for human consumption is restricted while, on the other hand, whole frozen herring for use as bait and live ornamental finfish are allowed access. Q1 Q2 Q3
1st warning signal
2nd warning signal
3rd warning signal
1st additional factor
2nd additional factor
3rd additional factor
 Article 5:5
WTO
Slide 61

62. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION
3&4 Q3
Arbitrary character in the differences in the levels of protection (bait/ornamental finfish can be presumed to represent a higher risk)
Substantial differences in levels of protection.
AB: emphasis on the degree of difference
Violation of Article 5.1 and 2.2
AB: non-existence of a risk assessment a strong indication that the measure was not really concerned with the protection of health
Same measure to products which can be presumed to represent the same risk
AB reversed: Same as first warning signal.
Lack of sufficient (scientific) explanation for the change in conclusions between the 1995 Draft Report and the 1996 Final Report - inspired by domestic pressures to protect Australian salmon industry
Internal movement restrictions not as severe
AB: Panel’s doubts do not carry much wait but can be taken into consideration
WTO
Slide 62

63. The SPS Agreement and Scientific Justification
Geneva, June 2000
SITUATION
3&4
Canadian adult, wild ocean-caught salmon for human consumption is restricted while, on the other hand, whole frozen herring for use as bait and live ornamental finfish are allowed access. Q1 Q2 Q3
1st warning signal
2nd warning signal
3rd warning signal
1st additional factor
2nd additional factor
3rd additional factor
 Article 5:5
AB: Upheld
WTO
Slide 63

64. “consistency” (Article 5.5) - summary -
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5) - summary - Q1 Q2 Q3
3&4
Violation of 5:5
WTO
Slide 64

65. “consistency” (Article 5.5) key points
The SPS Agreement and Scientific Justification
Geneva, June 2000
“consistency” (Article 5.5) key points
Both the Panel and the AB used the same three pronged test to show a violation of Article 5.5.
Do the differences result in “discrimination or a disguised restriction on international trade?” Q3
Separate requirement of discrimination
Comparable situations, a broad concept
WTO
Slide 65

66. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
“To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3”
WTO
Slide 66

67. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
"the relevant international organizations"
food safety
CODEX
plant health
IPPC
animal health
OIE
WTO
Slide 67

68. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.3
“Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5.3 Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.”
WTO
Slide 68

69. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.3
… higher level … if ...
there is a scientific justification
as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate ... or
Notwithstanding
shall not be inconsistent with any other provision of this Agreement
WTO
Slide 69

70. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.2
“Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994.
WTO
Slide 70

71. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
Article 3.2
Article 3.3
shall base ...
conform to ... consistent
higher level
Hormones
Salmon
Varietals
no claims
started with Article 5 and then found that there was no need to go further
WTO
Slide 71

72. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
Article 3.2
Article 3.3
shall base ... measures on international standards
conform to ... consistent
higher level
Does an international standard exist? Yes, for five.
Three natural hormones (unnecessary to establish ADI or MRL)
Two synthetic: Codex Standards apply.
WTO
Slide 72

73. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
Article 3.2
Article 3.3
shall base ... measures on international standards
conform to ... consistent
higher level
What is the meaning of “based on”?
The Panel equated “based on” with “conform to”. For a measure to be based on and international standard, it needed to be reflect the same level of sanitary protection as the standard.
AB: Disagreed
WTO
Slide 73

74. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
AB - Hormones
“Under Article 3.1 of the SPS Agreement, a Member may choose to establish an SPS measure that is based on the existing relevant international standard, guideline or recommendation. Such a measure may adopt some, not necessarily all, of the elements of the international standard. The Member imposing this measure does not benefit from the presumption of consistency set up in Article 3.2”
EC-Hormones, AB Report, para. 171
WTO
Slide 74

75. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
Article 3.2
Article 3.3
shall base ... measures on international standards
conform to ... consistent
higher level
Is the EC measure based on the international standard? (No).
The level of protection is significantly different (higher) than for Codex standards for both the natural and the synthetic hormones.
WTO
Slide 75

76. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
Article 3.2
Article 3.3
shall base ... measures on international standards
conform to ... consistent
higher level
When can Article 3.3 be invoked?
Two conditions (either or)
Regardless of the two conditions, the measure nevertheless has to comply with the other conditions of the SPS Agreement.
Is there a violation?
Measure can only be justified under Article 3.3 if the measure meets, inter alia, the requirements imposed by Article 5. 
Examine Article 5 first.
WTO
Slide 76

77. Harmonization (Article 3)
The SPS Agreement and Scientific Justification
Geneva, June 2000
Harmonization (Article 3)
Article 3.1
Article 3.2
Article 3.3
shall base ... measures on international standards
conform to ... consistent
higher level
AB: Agreed with Panel’s conclusion
Agreed with the Panel’s finding that EC is required by Article 3.3 to comply with the requirements of Article 5.1.
Stressed that the right of a Member to determine its own appropriate level of protection is an important right
Stated that the right of a Member to establish its own level of protection under Article 3.3 is an autonomous right and not an “exception” from a “general obligation” under Article 3.1.
WTO
Slide 77

78. The SPS Agreement and Scientific Justification
Geneva, June 2000
Some key issues
Rational or objective relationship between the measure and the science
Approach by Panel and AB to risk assessment (food-borne and pest- or disease-borne risk)
The use of precaution in situations where there is insufficient scientific evidence (5.7)
Approach by Panel and AB when showing for discrimination (5:5)
WTO
Slide 78

79. The SPS Agreement and Scientific Justification
Geneva, June 2000
Internet: “
“Hormones” (two) EC Measures Concerning Meat and Meat Products (Hormones) WT/DS26 and 48/ ...
“Salmon” Australia - Measures Affecting Importation of Salmon WT/DS18/ ...
“Varietals” Japan - Measures Affecting Agricultural Products WT/DS76/ ...
WTO
Slide 79

80. The SPS Agreement and its provisions relating to scientific evidence
The SPS Agreement and Scientific Justification
Geneva, June 2000
The SPS Agreement and its provisions relating to scientific evidence
WTO
Slide 80