CSPI International
Center for Science in the Public Interest

Diet & Health/Food Labelling & AdvertisingFunctional FoodsFood Safety StandardsIACFOCodex Alimentarius CommissionWorld Trade OrganizationNAFTAGeneration ExcessSafe Food International

December 23, 1997

Dr. Edward Scarbrough, Ph.D.
Manager, U.S. Codex
United States Department of Agriculture
Food Safety and Inspection Service
Room 4861 South Building
Washington, D.C. 20250

Re: U.S. Position on Codex Draft Medium-Term Plan for 1998 to 2002

The Center for Science in the Public Interest (CSPI) submits these comments regarding the United States' position on the Codex Draft Medium-Term Plan for 1998 to 2002. We urge the U.S. to ensure that: (l) consumer groups are adequately represented in all Codex proceedings; (2) the consumer's right-to-know is treated as a legitimate factor in Codex decisions; (3) food safety and labeling standards are "harmonized" in an upward fashion; and (4) the relationship between Codex and the World Trade Organization (WTO) is clarified to prevent Codex from becoming a battleground for trade disputes. We also urge the U.S. to support the specific actions in the areas of food additive regulation, equivalency agreements, and food labeling described herein.

I. Consumers must be adequately represented in all Codex proceedings.

We support the objective for "[i]mproved guidelines for participation of international non-government organizations" in Codex proceedings. These guidelines, however, should specifically promote the participation of non-government organizations representing consumer interests.

The need for greater consumer representation was recognized at the June 1997 meeting of the Codex Alimentarius Commission. The Commission's report concluded that participation of non-government organizations (NGOs) should be encouraged, particularly independent consumer NGOs. CSPI specifically recommends that consumer organizations meeting the following criteria should be eligible for observer status: organizations must be independently financed groups and must not accept funding from either government agencies or the food industry. The organizations should address the interests of consumers in a particular region, or internationally, and must have an established record of representing consumers on food-related issues at recognized national and international forums.

We are troubled that Codex has stated that strengthening public participation is excluded from consideration as a medium-term objective. If Codex fails to take affirmative steps to increase public participation, Codex standards will lose their credibility and legitimacy with the public. The Commission must, therefore, assume direct responsibility for increasing public participation in the standard-setting process.

II. The U.S. should support the consumer's right-to-know as a legitimate factor in Codex decisions.

Codex has the dual responsibility of protecting consumer health and promoting fair trade practices. An essential element of the latter aspect of Codex's mission is ensuring the consumer's "right to know." In his landmark message to Congress in March 1962, the same year that the Codex Alimentarius was founded, President Kennedy defined this right as not only encompassing the right of the consumer "to be protected against fraudulent, deceitful, or grossly misleading information, advertising, labeling and other practices," but also the right "to be given the facts he needs to make an informed choice."

Each subsequent U.S. president has endorsed the "consumer's right to know." For example, in his address marking National Consumer Week 1994, President Clinton recognized the importance of the consumer's right-to-know. He stated: "What has come to be called the Consumer Bill of Rights has evolved as our marketplace has evolved. At present, it includes: 'The Right to Information' -- the right to have full and accurate information upon which to make free and considered decisions and to be protected against false or misleading claims."

The consumer's right to know and to choose is an essential part of furthering world trade. If consumers are not given adequate information, then they cannot make informed purchasing decisions, and producers cannot respond with the types of products that consumers want to purchase. For example, in the United States, the provision of full nutrition information on food labels has had a profound effect on the marketplace, leading to the development of thousands of new low and reduced fat foods. The provision of analogous information concerning production processes, percentages of ingredients, and other factors of importance to consumers would likely have similar effects on both consumer and producer marketplace behavior in a variety of areas. For example, consumers may wish to know whether a food is organic, natural, or irradiated so they can "vote" with their pocketbooks and encourage production of products that meet their preferences.

Codex has recognized the consumer's right to know how foods are produced. For example, Codex has recently approved a standard for the term "Halal." The U.S. should support such continued efforts by Codex that promote fair trade practices by ensuring that the consumer's right-to-know is fulfilled.

III. "Harmonization" should be defined as raising standards for food safety and fair trade to the highest common denominator.

The Draft Medium-Term Plan calls for the issuance of guidelines on harmonization. To the extent that international harmonization of food standards elevates regulatory requirements worldwide to a consistent level of excellence, consumers will be well-served. But if harmonization merely means regulating food standards to the lowest common denominator of acceptability, then the welfare of consumers will be jeopardized. Unfortunately, recent actions taken by the Codex Commission have led to the latter result. For example, Codex has adopted standards sanctioning:

  • Inspection systems operated by company employees rather than by government-paid officials. In contrast, the U.S. Department of Agriculture (USDA) has required government inspection of meat and poultry since 1907.
  • Bottled mineral water with lower levels of minerals than those required by the FDA.
  • Nutrient content claims not permitted by FDA food labeling regulations.
In addition, Codex Committees have advanced standards that:

  • Do not require pasteurization of dairy products.
  • Permit food additives not approved by FDA regulations.
  • Permit fruit juices, milk, and other foods to contain lead at levels exceeding U.S. standards.
Unfortunately, the Medium-Term Plan as currently drafted will lead to a further downward harmonization of standards. We are particularly disturbed by the language "Consideration of special or more flexible conditions which may apply to developing countries in the acceptance and application of standards." This creates a double standard for developing countries. Consumers who were sickened by ingesting contaminated Guatemalan raspberries, Mexican cantaloupes, Peruvian carrots, and Thai coconut milk cannot seek solace in the fact that the exporting nations may be developing countries. Clearly, the U.S. must support a basic paradigm shift in the development of Codex standards. For example, instead of acquiescing to weaker standards for developing countries, the U.S. should support international aid to help such nations meet world class standards. The U.S. should take the lead in such efforts to ensure that harmonization leads to higher, not lower international standards.

IV. The relationship between Codex and WTO needs to be clarified.

The Draft Medium-Term Plan calls for the "clarification of the relationship between the Commission and the World Trade Organization's Committees on Sanitary and Phytosanitary Measures (SPS Committee). . . especially insofar as notification of the use of standards is concerned."

The U.S. should also support efforts by Codex to clarify the impact of Codex standards, recommendations, and guidelines under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). Such action was recommended by the Commission. In its June 1997 report, the Commission "decided to request the SPS Committee through the Secretariat to clarify how the SPS Committee would differentiate 'standards, guidelines and other recommendations' in relation to the implementation of the SPS Agreement by WTO Members."

As currently drafted, the SPS Agreement does not differentiate between the effect of international standards, guidelines, or recommendations. Unless the SPS Committee clarifies that there is a distinction between these regulatory categories, guidelines or recommendations never intended to have the effect of law will become binding under WTO procedures and the flexibility that guidelines and recommendations are intended to convey will become lost. To avoid this outcome, the U.S. must ensure that "guidelines" and "recommendations" retain their traditional meanings. If the SPS Committee determines otherwise, then the U.S. should support amendments to the SPS Agreement. Failure to do so would likely mean that Codex will become a battleground for trade disputes as opposed to serving as an international health agency to improve consumer welfare.

V. Food additives not approved in the U.S. must not be adopted.

The Draft Medium-Term Plan states that "Completion of the General Standard for the Use of Food Additives" will be an objective. As indicated in comments filed earlier this year, CSPI strenuously opposes the adoption of those portions of the General Standard that pertain to additives, or uses of additives, that have not been approved by the FDA. Thus, the U.S. should qualify its support of this goal.

VI. Equivalency agreements should only be negotiated where there are mandatory government safety standards and meaningful enforcement of those standards.

The draft also states that "equivalence and mutual recognition of harmonization of testing procedures" should be an objective. As part of this objective, the draft states that Codex should consider "[r]ecommendations on optimising control systems by ...voluntary quality assurance schemes." As indicated in comments we filed earlier this year, food safety objectives cannot be assured through voluntary quality assurance schemes alone. Rather, mandatory approvals and mandatory government inspections are often necessary. Therefore, the U.S. should maintain the position that "voluntary quality assurance schemes" cannot be relied on to provide an appropriate level of public health protection.

VII. Nutrition labeling should not be the subject of Codex standards.

The Draft Medium-Term Plan calls for the "Review of the basis for nutrition requirement[s] and food labelling requirements in light of scientific evidence and risk analysis." Nutritional requirements and risks vary from region to region because of differences in diets, nutrient consumption levels, diet-related health problems, and nutritional health priorities. Therefore, as stated in comments we previously submitted, a global nutrition labeling standard is not appropriate for Codex consideration. In addition, the U.S. has not had sufficient experience with permitting health claims on food labels. Thus, as stated in comments we submitted earlier this year, the U.S. should not advocate a Codex standard permitting health claims.

VIII. Administrative proposals on utilizing electronic technology to increase the flow of information should be adopted.

We support transfer of the contents of the Codex Alimentarius to the World Wide Web. The World Wide Web is playing an increasingly important role in information dissemination, and it is essential that Codex take advantage of this new, increasingly effective and low-cost method of information dissemination. We also support the transfer of Codex archives to electronic form.

IX. Conclusion

For the foregoing reasons, CSPI respectfully requests that the United States support changes in the Codex Medium-Term Plan to ensure that: (l) consumers are adequately represented at all Codex proceedings; (2) the consumer's right-to-know is considered a legitimate factor in Codex decisions; (3) harmonization becomes a means of raising the level of health and consumer protection standards; and (4) the SPS Committee of the WTO acknowledges differences between the effect of Codex guidelines, recommendations and standards under WTO procedures. The relationship between Codex and the WTO must also be clarified to prevent Codex from becoming a battleground for trade disputes.

Respectfully submitted,

Bruce Silverglade
Legal Director

Ilene Ringel Heller
Senior Staff Attorney