The Impact of the TBT and SPS Agreements on Food
Labeling and Safety Regulations
I. Food Labeling
Food labels are an essential source of information for consumers to enable them to have
effective control and choice over what they eat -- whether it is for health, safety, religious, or
ethical reasons. Current labeling initiatives favored by consumers are quite varied. For example,
the Transatlantic Consumer Dialogue ("TACD"), a coalition of more than 60 consumer
organizations in the United States and Europe, has recently recommended both mandatory
labeling for all genetically engineered foods and ingredients and mandatory nutrition labeling for
all food products.
The United States ("US") and the European Union ("EU") have each claimed that such
food labeling requirements could be illegal trade barriers under the current rules of the World
Trade Organization ("WTO").(1) Depending on its rationale, a mandatory food labeling regulation
could be held by the WTO to be illegal under the Agreement on Technical Barriers to Trade
("TBT Agreement") and/or the Agreement on the Application of Sanitary and Phytosanitary
Measures ("SPS Agreement"):
- The TBT Agreement deals with food labels (and other national requirements)
established for reasons other than to protect the life or health of people, animals,
or plants.(2) Article 2 of the TBT Agreement provides that such a labeling
requirement -- even if does not treat imports differently than domestic products --
is illegal if it restricts international trade more than is "necessary to fulfill a
legitimate objective, taking account of the risks non-fulfillment [of that objective]
- The SPS Agreement deals with food labels (and other national requirements)
designed to protect the life or health of people, animals, or plants. Under Article 2
of the SPS Agreement such a labeling requirement -- even if it does not treat
imports differently than domestic products -- is illegal if it is maintained "without
sufficient scientific evidence," and Article 5 provides that "Members shall ensure
that such measures are not more trade-restrictive than required to achieve their
appropriate level of sanitary or phytosanitary protection, taking into account
technical and economic feasibility."(3)
Both agreements can be used by governments to attack labeling requirements that address
the concerns of consumers. For example, the United States Trade Representative ("USTR") told
Congress that the 1998 requirement of the EU for labeling of foods containing genetically
modified corn or soybeans is a barrier to international trade because "the United States believes
that such labeling is unnecessary, in the absence of an identified and documented risk to safety or
health."(4) Meanwhile, United States consumer groups testified in favor of mandatory labeling for
genetically modified foods at recent Food and Drug Administration hearings.
In a similar case, EU officials asserted that the mandatory nutrition labeling required by
the US is a trade barrier and violates the TBT Agreement.(5) The US requirement(6) was instituted
to help Americans improve their diets and reduce their risk of heart disease and cancer, and it
was supported by the American Heart Association, the American Cancer Society and 20 other
national health and consumer organizations -- practically no members of the food industry
supported the legislation when it was introduced in Congress. Nonetheless, the European
Commission has claimed that the US labeling law favors US producers and violates the TBT.
Meanwhile, European consumer groups are seeking mandatory nutrition labeling in the EU.
II. Safety Regulation
As explained above, under Article 2 of the SPS Agreement, a food safety measure -- even
if it does not treat imports differently than domestic products -- is illegal if it is maintained
"without sufficient scientific evidence." Article 5 of the SPS provides that "Members shall
ensure that such measures are not more trade-restrictive than required to achieve their appropriate
level of sanitary or phytosanitary protection, taking into account technical and economic
While the WTO has decided only one case involving the SPS Agreement as it pertains to
food safety and human health (the EU's ban on beef hormones), governments may threaten
action under the SPS Agreement as a way of pressuring another country to accept imports. This
type of informal activity, often invisible to public scrutiny, may represent a more insidious threat
to a nation's food safety standards than an actual WTO challenge, which is at least subject to
some established rules.
For example, the USTR, seeking to promote United States sales of antibiotics and meat
and poultry, wrote in the summer of 1999 to the European Commission that the EU's ban on the
use in livestock feed of human-use antibiotics might be illegal under the SPS Agreement because
the EU had failed to notify the United States of its actions and had not done a "proper risk
assessment." The USTR made this statement even though: (1) the United States Centers for
Disease Control had concluded that the EU ban is "scientifically justifiable" and "protects the
public health," (2) the World Health Organization had recommended in 1997 that antibiotics
used to treat humans should not also be used to promote animal growth, and (3) the United States
National Academy of Sciences had concluded in 1998 that "there is a link between the use of
antibiotics in food animals, the development of bacterial resistance to these drugs, and human
In applying the SPS and TBT Agreements, the WTO extensively relies on decisions by
the Codex Alimentarius Commission ("Codex"). Article 3 of the SPS Agreement provides that a
national health standard for food is presumptively legal if it conforms to a standard, guideline, or
recommendation established by Codex. A national standard that provides a greater level of
protection than Codex is a "trade barrier" unless the WTO decides that the stricter national
standard is based on a proper "risk assessment" that demonstrates that the Codex standard,
guideline, or recommendation does not provide sufficient protection or that the country
maintaining the stricter standard has other scientific justification. Article 2.4 of the TBT
Agreement provides that countries shall use Codex or other international standards "except when
such international standards or relevant parts would be an ineffective or inappropriate means for
the fulfilment of a" legitimate objective.
Recent Codex decisions may reflect political compromises designed to promote
international trade, not the best science designed to protect consumers. For example, at its June
1999 meeting, Codex approved by consensus a tolerance for residues of methyl parathion (and
other pesticides) even though two months later the United States Environmental Protection
Agency (as mandated under United States law) banned methyl parathion for fruits and vegetables
because of its potential adverse effects on children. Similarly, Codex approved by consensus a
maximum level for aflatoxin -- a naturally occurring carcinogen produced by a mold that grows
on peanuts -- of 15 ug/kg. That level was higher than the level sought by the EU and represented
a compromise with the United States, which permits greater amounts of aflatoxin in peanuts for
III. Recommendations of the TACD
In October 1999, the TACD released a paper entitled On the Proposal to Launch a New
Round of Trade Negotiations at the Seattle Ministerial Conference. In that paper, the TACD
stated "given the troubling pattern of WTO use as a tool against domestic food safety, health and
other consumer concerns, we call for the Seattle Ministerial Declaration to announce a
moratorium on new WTO challenges to prima facie non-discriminatory environmental, health
and safety measures, such as EU labeling of genetically modified organisms, until a speedy and
thorough review [of the SPS and TBT Agreements] has been completed." (emphasis in original).
With regard to the SPS Agreement, the TACD stated in October (at 2.8) that the SPS Agreement
"undercuts governments' ability to establish and maintain legitimate, non-discriminatory food
safety and food-related consumer information labeling policies."
The TACD's specific recommendations for reforming the SPS Agreement were deletion
of the word "provisional" in Article 5.7 of the SPS Agreement, reconsideration of the current
rules relating to the burden of proof to demonstrate a product is safe, and changes to Article 3
(dealing with the legal significance of decisions by Codex), Article 4 (dealing with equivalence
of national health measures), and Article 5.7 (dealing with incomplete scientific evidence to
support a nation's protective measure). The TACD also called for greater consumer
participation in the work of Codex and the WTO and called on Codex to utilize the precautionary
principle, and include, along with science, social and ethical factors, animal welfare, and
environmental protection factors in its decisions.
The TACD's specific recommendations for changing the TBT Agreement also included
making it easier for a country to have a national standard that gives more protection than an
existing or imminent international standard.
IV. Future Steps
During the WTO ministerial meeting, the streets of Seattle were filled with tens of
thousands of protesters, many of whom were concerned about the impact of trade agreements on
consumer health and safety. Similar demonstrations occurred in parts of the EU. It should be
clear from such incidences of civil disobedience that current trade agreements are raising serious
concerns among significant segments the public and hence should be reformed. Consideration
should be given to extending the TACD's previous recommendations to more basic fundamental
reforms of the TBT and SPS Agreements.
While the Seattle Ministerial Conference failed to agree on an agenda for another round
of WTO trade negotiations, international negotiations regarding the SPS and TBT agreements
could still begin this year because Article 20 of the 1994 WTO Agreement on Agriculture
provides that further negotiations on agricultural trade, which have now begun, shall take "into
account...non-trade concerns, including food security and the need to protect the environment."
This forum provides an opportunity to seek review of the TBT and SPS Agreements.
In order to build consumer confidence in the WTO:
1) The EU and the US should announce they will not make any formal challenges at the
WTO to each other's food labeling and safety requirements during which time;
2) The TBT Agreement and the SPS Agreements should be subjected to a public and
transparent review, with the full involvement of all stakeholders including consumer non-governmental organizations. The WTO SPS and TBT Committees should be opened to
observers from non-governmental organizations.
3) During such review, the EU and the US should support the specific recommendations
for reform of the SPS and TBT Agreements as previously recommended by the TACD;
4) Consideration should be given to determining whether the SPS and TBT Agreements
should be fundamentally reformed so that a national food safety or labeling requirement would
be deemed an illegal trade barrier only if it treats imports differently than domestic products.
1. When a country violates a portion of the WTO agreement, that country must either
change its policy or pay a penalty. For example, when the EU refused to rescind its ban on beef
from cattle treated with growth hormones after the WTO decided the ban was illegal, the WTO
permitted the United States to impose in 1999 a 100 percent ad valorem tariff on $117 million of
goods imported from the EU.
2. For example, a bipartisan bill introduced by US Congressman Dennis J. Kucinich with
18 cosponsors, H.R. 3377, requires labeling of genetically modified foods in the United States
based on consumers' right to know, not on the basis that such foods are unsafe.
3. The SPS Agreement explains that this latter provision means that a measure is illegal if
"there is another measure, reasonably available taking into account technical and economic
feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is
significantly less restrictive to trade."
4. USTR, 1999 National Trade Estimate Report on Foreign Trade Barriers at 112. In
September 1998 the USTR told the WTO that the EU's labeling requirement could violate the
TBT Agreement. Inside U.S. Trade (September 25, 1998) at 16-19.
5. 15th Annual Report on United States Barriers to Trade and Investment, European
Commission (August 31, 1999). The report states that US nutrition labeling requirements differ
from international labeling standards set by the Codex Alimentarius Commission and present
"serious negative consequences on EU-US trade in foodstuffs."
6. As required by the Nutrition Labeling and Education Act of 1990, United States
consumers can now find mandatory nutrition information on nearly all food labels (the principal
exception being fresh meat and poultry). Disclosure is required for calories, total fat, saturated
fat, cholesterol, sodium, potassium, dietary fiber, sugars, and protein. The Center for Science in
the Public Interest has petitioned the United States Food and Drug Administration to add two
additional disclosures to reflect current scientific information: trans fats and added sugars.