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European Communities restrictions on imports of beef treated with hormones—nontariff trade barriers—control of food additives—scientific basis for restrictions—WTO dispute settlement mechanisms—scope of review

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
David A. Wirth
David A. Wirth
Affiliation:
Washington and Lee University School of Law
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Extract

European Communities—Measures Concerning Meat and Meat Products. WTO Doc. WT/DS26/AB/R & WT/DS48/AB/R.

World Trade Organization Appellate Body, January 16, 1998.

This report of the Appellate Body of the World Trade Organization (WTO) is both the most recent development in a long-running trade battle between the United States and the European Communities and the first dispute to be addressed under a new Uruguay Round agreement concerning food safety measures.

Type
International Decisions
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 755 - 759
Copyright
Copyright © American Society of International Law 1998

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References

1 See U.S. Dep't of Agriculture, Foreign Agricultural Service, Chronology of the European Union's Hormone Ban, June 26, 1996, available in LEXIS, News Library, Arcnews File.

2 Apr. 15, 1994, Agreement Establishing the World Trade Organization, Annex 1A, in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Marrakesh, 15 April 1994, at 69 (1994) [hereinafter SPS Agreement].

3 WTO Doc. WT/DS26/R/USA (Aug. 18, 1997) ‹http://www.wto.org/wto/dispute/distab.htm› [hereinafter U.S. Panel Report].

4 WTO Doc. WT/DS48/R/CAN (Aug. 18, 1997) ›http://www.wto.org/wto/dispute/distab.htm.›

5 See generally David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell Int'l L.J. 818 (1994) (reprinted as United Nations Environment Programme, Environment and Trade Monograph No. 8).

6 SPS Agreement, supra note 2, Art. 3, paras. 1–3. The benefits of international standards from a trade point of view are relatively obvious: producers in one country readily obtain market access to any other country applying the same standards. There has been concern, however, that multilateral standards may reflect a least-common-denominator consensus responsive to those countries that are the least aggressive in protecting public health from food-related risks.

7 The Codex Alimentarius Commission was created in 1962 as a joint undertaking of the UN Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Membership is open to all FAO and WHO member states and now numbers more than 130. The Commission has a dual function: “protecting the health of the consumers and ensuring fair practices in the food trade.” Statutes of the Codex Alimentarius Commission, Art. 1, para, (a), reprinted in Codex Alimentarius Commission, Procedural Manual 4 (10th ed. 1997). To this end, the Commission is specifically charged with adopting advisory multilateral “good practice” standards on such matters as the composition of food products, food additives, labeling, food-processing techniques, and inspection of foodstuffs and processing facilities. As of 1993, the Codex Commission had evaluated 187 pesticides, 523 food additives, and 57 food contaminants, and established 3,019 maximum residue limitations for pesticides. See Roger W. Miller, This Is Codex Alimentarius (1993).

8 This action was taken by recorded vote—itself unusual—that was also noteworthy for being quite close: 33 in favor, 29 against, with 7 abstentions. See Dep't of Agriculture, supra note 1; U.S. Panel Report, supra note 3, para. 8.67.

9 WTO Doc. WT/DS26/AB/R & WT/DS48/AB/R, paras. 157–68, & 253(g), (h) (Jan. 16, 1998) ‹http://www.wto.org/wto/dispute/distab.htm› [hereinafter Appellate Body Report].

10 E.g., SPS Agreement, supra note 2, Art. 3, para. 3, Art. 5, paras. 3–6, & Annex B, para. 3(c). Noting that “[m]any Members … refer to this concept as the ‘acceptable level of risk,’ ” paragraph 5 of Annex A defines “[a]ppropriate level of sanitary or phytosanitary protection” as “[t]he level of protection deemed appropriate by the Member establishing a sanitary or phytosanitary measure to protect human, animal or plant life or health within its territory.”

11 The Agreement explains that

there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection.

SPS Agreement, supra note 2, Art. 3, para. 3 n.2.

12 Appellate Body Report, supra note 9, paras. 173–77 & 253(i).

13 Id., paras. 97–109 & 253(a). This ruling may be particularly important for regulatory schemes, such as those for food additives and human drugs in the United States, that require the manufacturer to demonstrate safety rather than the Government to demonstrate harm.

14 Id., paras. 210–46 & 253(m). In reaching this conclusion, the Appellate Body did, however, affirm the panels' finding that these differences in level of protection were “unjustifiable” within the meaning of the SPS Agreement. Id., para. 235.

15 SPS Agreement, supra note 2, Art. 5, para. 1. Paragraph 4 of Annex A to the Agreement defines “risk assessment” as follows:

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 measures which might be applied, and of the associated potential biological and economic consequences; or 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.

16 Appellate Body Report, supra note 9, para. 253(j). See also id., paras. 180–87. The Appellate Body noted:

In most cases, responsible and representative governments tend to base their legislative and administrative measures on “mainstream” scientific opinion. In other cases, equally responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from qualified and respected sources. By itself, this does not necessarily signal the absence of a reasonable relationship between the SPS measure and the risk assessment, especially where the risk involved is life-threatening in character and is perceived to constitute a clear and imminent threat to public health and safety.

Id., para. 194.

17 Id., paras. 180–91 & 253(k). This point is important because the “based on” standard, as well as the other obligations in the Agreement, applies to measures put in place before the SPS Agreement's entry into force. Id., paras. 126–30 & 253(d).

18 Id., paras. 192–93 & 253(l).

19 Uruguay Round Agreements Act, Statement of Administrative Action, reprinted in H.R. Doc. No. 103–316, at 656, 746 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4105:

It is clear that the requirement in the [SPS] Agreement that measures be based on scientific principles and not be maintained “without sufficient scientific evidence” would not authorize a dispute settlement panel to substitute its scientific judgment for that of the government maintaining the sanitary or phytosanitary measure. For example, by requiring that a measure be based on scientific principles (rather than, for instance, requiring that a measure be based on the “best” science) and not to be maintained without sufficient scientific evidence (rather than, for instance, requiring an examination of the “weight of the evidence”), the [SPS] Agreement recognizes the fact that scientific certainty is rare and many scientific determinations require a judgment among differing scientific views. The [SPS] Agreement preserves the ability of governments to make such judgments.

20 Appellate Body Report, supra note 9, paras. 100–19 & 253(b).

21 Id., para. 138.

22 Id., para. 139.

23 Id., para. 253(e).

24 Id., paras. 120–25 & 253(c).

25 See Testimony of Dana R. Hauk, Chairman, International Markets Committee, National Cattlemen's Beef Association, Review of the 1999 WTO Multilateral Negotiations on Agricultural Trade—Europe: Hearing Before the House Comm. on Agriculture, 105th Cong., 2d Sess. (Mar. 18, 1998), available in LEXIS, News Library, Curnws File.

26 See Gregory Viscusi, U.S. Wants Quick End to Europe's Hormone Beef Ban, Com. Appeal, Mar. 7, 1998, at B10, available in LEXIS, News Library, Curnws File (quoting Agriculture Secretary Dan Glickman as “frustrated” with EC response to Appellate Body's report).

27 See E. U. Sets New Studies on Beef Hormone Risk, J. Com., Mar. 12, 1998, at 4A.

28 See EC Measures Concerning Meat and Meat Products (Hormones), Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Doc. WT/DS26/ 15 & WT/DS48/13, paras. 39–42 (May 29, 1998) ‹http://www.wto.org/wto/dispute/distab.htm.›