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Private food standards and the World Trade Organization: some legal considerations

  • JAN WOUTERS (a1) and DYLAN GERAETS (a2)

Abstract

Private standards have increasingly become a contentious issue in the multilateral trading system. The ever increasing number of sector-specific standards developed by businesses, in particular in the food market, may have significant implications for developing countries in terms of market access. Some countries see private food standards as a particular form of non-tariff barriers. The World Trade Organization (WTO) deals with non-tariff barriers in the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and in the Agreement on Technical Barriers to Trade (TBT Agreement). This paper examines to what extent these agreements cover private standards, as they were originally intended to regulate standard-setting by public authorities. We find that there is an important difference between the SPS Agreement and the TBT Agreement in that the drafters of the latter realized the importance of the private sector in standard-setting. Finally, we discuss whether a ‘Code of Good Practice for the Preparation, Adoption and Application of Standards’, similar to that under the TBT Agreement, could be adopted under the SPS Agreement.

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1 Henson, S. J. and Reardon, T., ‘Private Agri-Food Standards: Implications for Food Policy and the Agri-Food System’, 30 Food Policy (2005) 2, at 244.

2 Gruére, G. P. and Sengupta, D., ‘GM-Free Private Standards and Their Effects on Biosafety Decision-Making in Developing Countries’, 34 Food Policy (2009) 5, at 401.

3 Henson, S. and Caswell, J., ‘Food Safety Regulation: An Overview of Contemporary Issues’, 24 Food Policy (1999) 6, at 589–603.

5 S. Henson and J. Humphrey, ‘The Impacts of Private Food Safety Standards on the Food Chain and on Public Standard-Setting Processes’, Paper prepared for FAO/WHO, May 2009, at 4.

6 WTO, Committee on Sanitary and Phytosanitary Measures, ‘Private Standards and the SPS Agreement, Note by the World Trade Organization Secretariat’, G/SPS/GEN/746, 24 January 2007, at 2.

7 Fulponi, L., ‘Private Voluntary Standards in the Food System: The Perspective of Major Food Retailers in OECD Countries’, 31 Food Policy (2006) 1, at 1–13.

8 Henson and Humphrey, supra note 5, at 14.

9 Henson, S. and Northern, J., ‘Economic Determinants of Food Safety Controls in the Supply of Retailer Own-Branded Products in the UK’, 14 Agribusiness (1998) 2, at 113–126.

10 WTO, G/SPS/GEN/746, supra note 6, at 4; WTO, Committee on Sanitary and Phytosanitary Measures, ‘Report by The Commonwealth of the Bahamas to the WTO-SPS Committee on Private Standards and the SPS Agreement: The Bahamas Experience’, G/SPS/GEN/764, 28 February 2007, at 2; WTO, Committee on Sanitary and Phytosanitary Measures, ‘Private and Commercial Standards, Statement by Ecuador at the Meeting of 27–28 June 2007’, 5 July 2007, at 2.

11 WTO, Committee on Sanitary and Phytosanitary Measures, ‘Private Industry Standards, Communication from Saint Vincent and the Grenadines’, G/SPS/GEN/766, 28 February 2007, at 1; WTO, Committee on Sanitary and Phytosanitary Measures, ‘Private Voluntary Standards and Developing Country Market Access: Preliminary Results, Communication from OECD’, WTO G/SPS/GEN763, 27 February 2007, at 1.

12 WTO, G/SPS/GEN/746, supra note 6, para. 11; see Hobbs, J. E., ‘Public and Private Standards for Food Safety and Quality: International Trade Implications’, 11 Journal of International Law and Trade Policy (2010) 1, at 147; G. Smith, Interaction of Public and Private Standards in the Food Chain, OECD Food, Agriculture and Fisheries Working Papers (2009) No. 15, OECD Publishing, at 30.

13 Maertens, M. and Swinnen, J. F. M., ‘Trade, Standards and Poverty: Evidence from Senegal’, 37 World Development (2009) 1, at 174; Ruben, R. and Zuniga, G., ‘How Standards Compete: Comparative Impact of Coffee Certification in Northern Nicaragua’, 16 Supply Chain Management: An International Journal (2011) 2, at 101.

14 Hobbs, supra note 12, at 147.

15 International Trade Centre (ITC), ‘The Impact of Private Standards on Global Value Chains: Literature Review Series on the Impacts of Private Standards – Part I’, Geneva (ITC), 2011, at 26.

16 G. Stanton, ‘Food Safety Related Private Standards – The WTO Perspective’, in A. Marx et al., Private Standards and Global Governance, Cheltenham: Edward Elgar Publishing, 2012.

17 WTO, G/SPS/GEN/766, supra note 11, at 2.

18 WTO, Committee on Sanitary and Phytosanitary Measures, ‘Possible Actions for the SPS-Committee Regarding Private Standards, Note by the Secretariat’, G/SPS/W/247/Rev. 3, 11 October 2010.

19 WTO Appellate Body Report, EC–Hormones, WT/DS26/AB/R, adopted 13 February 1998, para. 177.

20 Prevost, D., ‘Private Sector Food-Safety Standards and the SPS Agreement: Challenges and Possibilities’, 33 South African Yearbook of International Law (2008), at 16; WTO, Committee on Sanitary and Phytosanitary Measures, ‘Third Review of the WTO SPS Agreement, Proposal by India’, G/SPS/W/236, 14 April 2009, at 3.

21 Bernstein, S. and Hannah, E., ‘Non-State Global Standard Setting and the WTO: Legitimacy and the Need for Regulatory Space’, 11 Journal of International Economic Law (2008) 3, at 578.

22 WTO, Committee on Sanitary and Phytosanitary Measures, ‘Summary of the Meeting Held on 29–30 June 2005, Note by the Secretariat. Revision’, G/SPS/R/37/Rev. 1, 18 August 2005; WTO, Committee on Sanitary and Phytosanitary Measures, ‘Possible Actions for the SPS Committee Regarding Private Standards, Note by the Secretariat’, G/SPS/W/247, 20 October 2009, at 6–7.

23 S. Henson, ‘The Role of Public and Private Standards in Regulating International Food Markets’ (2006), at 28, available at http://www.ilr1.uni-bonn.de/iatrc2006/iatrc_program/Session%204/Henson.pdf (accessed 3 March 2012).

24 Prevost, supra note 20, at 16.

25 WTO, G/SPS/GEN/746, supra note 6, para. 17.

26 WTO Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, circulated 31 March 1998, para. 10.328 (Panel Report, Japan–Film).

27 Ibid., para. 10.52.

28 Ibid., para. 10.56.

29 D. Gascoigne, ‘Private Voluntary Standards within the WTO Multilateral Framework’ (2007) Report for the United Kingdom Department for International Development, para. 66, in WTO, Committee on Sanitary and Phytosanitary Measures, ‘Private Voluntary Standards within the WTO Multilateral Framework, Submission by the United Kingdom’, G/SPS/GEN/802, 9 October 2007.

30 WTO, Committee on Sanitary and Phytosanitary Measures, ‘Report of the Ad Hoc Working Group on SPS-Related Private Standards to the SPS Committee’, G/SPS/W/256, 3 March 2011, at 8, Annex 1, para. 13. Diverging opinions on the meaning of ‘non-governmental’ entity still exist.

31 WTO, G/SPS/GEN/746, supra note 6, para. 27.

32 Prevost, supra note 20, at 26.

33 Prevost, supra note 20, at 29.

34 Livermore, M. A., ‘Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation and the Codex Alimentarius’, 81 New York University Law Review (2006), at 778; McCrea, ‘Codex Alimentarius − In the Consumer Interest?’, 7 Consumer Policy Review (1997) 4, at 132–138.

35 Gascoigne, supra note 29, para. 48–49.

37 WTO, G/SPS/W/256, supra note 30, at 10; For the EU submission see: WTO, Committee on Sanitary and Phytosanitary Measures, ‘Summary of the Meeting of 30–31 March 2011, Note by the Secretariat’, G/SPS/R/62, 27 May 2011, at 23, para. 139.

38 J. Wouters, A. Marx and N. Hachez, ‘Private Standards, Global Governance and International Tradethe Case of Global Food Safety Governance’, in A. Marx et al., supra note 16, at 25; Prevost, supra note 20, at 31.

39 Stanton, G. H. and Wolff, C., ‘Private Voluntary Standards and the World Trade Organization (WTO) Committee on Sanitary and Phytosanitary Measures’, 16 Fresh Perspectives (2008), at 2.

40 Wouters et al., supra note 38, at 24.

41 WTO, G/SPS/W/247/Rev. 3, supra note 18, at 14; WTO, G/SPS/R/62, supra note 37, at 23.

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