Testimony on United States Trade Policies and Agricultural Disease: Safety, Economic, and Global Considerations
Senior Staff Attorney
Center for Science in the Public Interest
October 26, 1999
Subcommittee on International Economic Policy and Trade
Committee on International Relations
United States House of Representatives
The Center for Science in the Public Interest(1) (CSPI) appreciates this opportunity to
present its views on the impact of trade agreements and trade policies on domestic food safety.
This important hearing is especially timely, coming just five weeks before the World Trade
Organization (WTO) Ministerial Conference is held in Seattle. At that conference the United
States and the other major trading nations will try to agree on an agenda for negotiating changes
in the international rules governing global trade.
Our testimony focuses on the Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS Agreement), which was negotiated as part of the Uruguay Round
of Trade Agreements and approved by Congress in 1994.
Let me state at the outset that we support expansion of international trade and recognize
the benefits to consumers that it may bring. We also recognize that international harmonization
of food safety standards facilitates trade. The benefits of promoting trade through harmonization,
however, must be balanced against the possible harm to consumers that harmonization entails.
The international harmonization process will only benefit consumers if national
regulatory standards are harmonized in an upward manner that provides the public with the
greatest degree of protection from unsafe foods and deceptive trade practices. Unfortunately, the
SPS Agreement, as it has been interpreted and applied during the last five years by the WTO,(2)
threatens United States regulatory requirements because it is leading to just the opposite, i.e., to downward harmonization.(3) We, therefore, support reforms to the SPS Agreement that would
protect United States food safety and consumer protection regulations from being weakened in
the name of facilitating international trade.
The SPS Agreement and the Codex Alimentarius Commission
Let me begin by summarizing the SPS Agreement. Under the SPS Agreement, the WTO
may force a nation to choose between lowering its health standards for humans, animals, or
plants or paying an international penalty. A national health standard is illegal under the SPS
Agreement if the WTO decides that it is not based on scientific principles and is...maintained
without sufficient scientific evidence.(4) In making this judgment, the WTO examines the extent
to which the country has done a scientific assessment of the risk to human, animal, or plant life
One of the primary purposes of the SPS Agreement is to promote trade by encouraging
countries to develop and rely on international regulatory standards for food. The SPS Agreement
specifically refers to food standards set by a United Nations (UN) affiliated organization called
the Codex Alimentarius Commission (Codex), which was established in 1962 by the UN
World Health Organization and Food and Agricultural Organization.(6)
Prior to 1995, national governments were free to accept or reject Codex standards.
However, with the ratification of the SPS Agreement, Codexs role has changed greatly. Article
3.2 of the SPS Agreement provides that a country employing a Codex standard, guideline or
recommendation is presumed to be in compliance with its WTO obligations. Article 3.3 of the
SPS Agreement provides that a country with a regulatory requirement that results in a higher
level of protection than a Codex standard, guideline, or recommendation is presumed to have
erected a barrier to international trade unless the country can show that its standard has a
scientific justification. Thus, the SPS Agreement by encouraging WTO challenges to a
national health standard only when it exceeds the Codex standard has a bias leading to a
downward harmonization of health standards. In fact, Codex standards should be a floor, not a
A country that the WTO determines has erected such a barrier must either lower its
regulatory requirement(7) or pay an international penalty. This penalty can take the form of either
compensating the foreign government whose exports to the country have been limited or
permitting that country to impose trade restrictions on imports from the country that maintained
the higher food safety standard.
Codex has had three meetings since the SPS Agreement was ratified in 1994. In 1995
Codex by a vote of 33 to 29 with seven abstentions approved the use of growth hormones for
cattle. This Codex decision helped the United States government win a legal battle at the WTO
declaring that the European Unions ban on beef hormones is illegal.(8)
Since that time the United States has fared even worse. At the 1997 Codex meeting the
United States lost two key votes. Codex:
- adopted by a vote of 33 to 31 with 10 abstentions an international safety standard for natural mineral waters that permits higher levels of lead and other contaminants than the Food and Drug Administration (FDA) now allows; and
- adopted by a vote of 46 to 16 with seven abstentions an international standard for food safety inspection systems that permits self-evaluation by the companies or nongovernmental third-parties even though in the United States such food safety inspections are the responsibility of the United States Department
of Agriculture (USDA), the FDA, and State governments.(9)
The United States avoided losing any recorded votes at this years Codex meeting by
quietly acquiescing to six Codex standards that provide less protection to consumers than the
United States now requires. At its June 1999 meeting Codex unanimously:
- approved residue tolerance for methyl parathion (and other pesticides) even
though in August 1999 the Environmental Protection Agency (EPA) as
mandated under United States law(10) banned methyl parathion for fruits and
vegetables because of its potential adverse effects on children;
- approved an amended standard for natural mineral waters that still permits higher levels of lead and other contaminants than the FDA now allows;(11)
- approved an international standard that does not require pasteurization of dairy
products even though pasteurization of dairy products is generally required by the
- sanctioned the use of five food additives which, while presumably safe, have not been formally approved by the FDA for use in the United States;
- approved an international standard for the labeling of a composite ingredient in
prepackaged foods that permits it to be listed by a standardized name without
declaring all its component ingredients if it is less than 5 percent of the food, even
though the FDA requires these components to always be listed in order to protect
consumers who suffer from hypersensitivities;(13) and
- defeated attempts to strengthen current Codex nutrition labeling requirements to make them more akin to United States law.(14)
The United States presumably acquiesced to these weak Codex standards because it
believed that it would not prevail if it insisted on a recorded vote.(15)
The United States acquiescence to these Codex standards means that it may be only a
matter of time before current EPA, FDA, and USDA regulations are challenged as trade barriers
by countries invoking the Codex standards as evidence that United States regulatory
requirements are unreasonably high. This process is unacceptable. Food safety and consumer
protection must not be sacrificed in the name of harmonizing regulatory requirements and
Suggested Reforms to the SPS Agreement
Accordingly, at the WTOs Ministerial Meeting in Seattle on November 30-December 3,
1999, two changes should be made to the SPS agreement so as to give the United States the
ability to prevent a downward harmonization of food safety standards. First, Article 3 should be
either interpreted(16) or renegotiated to provide that Codex decisions are the presumptive
international food safety standard only if they are virtually unanimous. This would permit the
United States to protect domestic regulatory requirements by insisting on a recorded vote even
when its views are shared by only a minority of national governments.
Another portion of the SPS Agreement that should be changed is the provision dealing
with those situations where there is uncertainty about the relevant scientific evidence. Article 5.7
of the SPS Agreement says
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. (emphasis added).
At its meeting in Brussels, Belgium in April 1999, the Transatlantic Consumer Dialogue(17)
(TACD) unanimously recommended that the word provisionally be deleted from Article
5.7.(18) Provisionally suggests a relatively short period of time. But it may take decades to
collect enough data for a government to determine with certainty whether, say, a particular food
additive or pesticide causes cancer in people. Provisionally should be replaced in Article 5.7
with a reasonable period of time.
In conclusion, almost five years of experience with the SPS Agreement indicates that it
jeopardizes EPA, FDA, and USDA regulations protecting consumers from unsafe food and
misleading trade practices. This Committee should take the lead in telling the Administration
that the SPS Agreement should be changed to make it clear that food safety and consumer
protection are not negotiable items in the quest for free trade.
1. CSPI, a nonprofit organization based in Washington, D.C., is supported by
approximately one million members who subscribe to its Nutrition Action Healthletter. CSPI
has been working to improve the nations health through better nutrition and safer food since
1971. CSPI has received no Federal government grants or contracts during the current fiscal
As a founding member of the International Association of Consumer Food Organizations
along with the Japan Offspring Fund and the Food Commission UK CSPI participated as an
observer at both the June 1999 meeting and the 1997 meeting of the Codex Alimentarius
2. In all three cases involving the SPS Agreement, the WTO has struck down a national
health regulation. In January 1998 the WTO sustained complaints by the United States and
Canada against the European Unions ban on imported beef produced from cattle treated with
growth hormones even though the ban also applies to domestic beef. In October 1998 the WTO
sustained a complaint by Canada against Australias ban on imported uncooked salmon. In
February 1999 the WTO sustained a complaint by the United States against Japans tests of
certain imported fruits to see if they are free of codling moths.
3. As President Clinton put it in a speech to the WTO last year, We should level up, not
4. See Articles 2.2 and 5.7 of the SPS Agreement.
5. See Article 5 of the SPS Agreement.
6. For animal health and zoonoses, the SPS Agreement refers to standards developed by
the International Office of Epizootics; for plant health the SPS Agreement refers to standards
developed by the Secretariat of the International Plant Protection Convention.
7. In two cases (not involving the SPS Agreement) the United States has elected to change
its regulations after losing a WTO decision. The Environmental Protection Agency changed its
Clean Air Act regulations for oil refineries after Venezuela successfully challenged them. The
Administration is now considering changes in the Endangered Species Acts regulations to
protect sea turtles when shrimp are caught after India, Malaysia, Pakistan, and Thailand
successfully challenged them.
8. The United States legal victory at the WTO has not, of course, led to any United States
exports of hormone-fed beef to the EU. The United States has rejected EU offers of either
expanding exports of non-hormone fed beef or having a label on the beef saying that it is from
hormone-fed cattle. The EU has rejected the United States offer to label the beef as coming
from the United States. In July 1999 the United States announced it would impose 100 percent
tariffs on $117 million of food imports from Europe because the EU refused to repeal its ban.
These higher tariffs have, in turn, led to higher prices for United States consumers and social
unrest in France, where farmers have retaliated by damaging McDonalds restaurants.
9. This 1997 Codex decision may partially explain why the United States Department of
Agriculture (USDA) has been permitting imports of meat and poultry from 32 foreign
countries even though the USDA does not yet have enough information to determine whether the
foreign salmonella testing systems provide a level of safety equivalent to that provided by the
salmonella testing requirements with which large United States meat and poultry plants have had
to comply since January 1998. USDAs regulations, announced in July 1996, require that in the
United States salmonella samples be taken by government inspectors and analyzed in
government laboratories. In many foreign countries including the five (Canada, Australia,
New Zealand, Denmark, and Brazil) that account for about 94 percent of our imported meat and
poultry these salmonella tests are done by private, non-governmental parties.
On June 8, 1999 the House of Representatives adopted, by voice vote, Representative
Meeks floor amendment to H.R. 1906, the FY 2000 appropriations bill for the Agriculture,
Rural Development, Food and Drug Administration, and Related Agencies, that cuts off USDA
funds for the processing of imports of meat and poultry from any foreign country for which
USDA has not decided by March 1, 2000 that the foreign meat and poultry inspection system
provides a level of safety equivalent to that provided by the domestic meat and poultry inspection
system. This provision was deleted in conference, and the conferees agreed that the USDA
should submit quarterly reports to Congress on its enforcement of the laws governing the safety
of imported meat and poultry.
10. See section 405 of the Food Quality Protection Act of 1996, P.L. 104-170, amending
section 408(b) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 346a(b).
11. Codex approved a level for lead of .01 mg/l, a level for nitrate of 50 mg/l, and a level of
3 mg/l for nitrite. The FDAs ceilings are .005 mg/l for lead, 10 mg/l for nitrate, and 1 mg/l for
nitrite. 21 C.F.R. §165.110(b)(4)(iii)(A).
12. The Codex provision applies to butter, milk fat products, evaporated milks, sweetened
condensed milk, milk powders and cream powders, cheese, whey cheese, and cheeses in brine.
The FDA requires pasteurization for milk and all milk products sold in interstate commerce
unless the FDA has by regulation exempted the product from pasteurization. 21 C.F.R.
§1240.61. The FDA has exempted certain cheeses such as asiago fresh and soft, blue, brick,
caciocavallo siciliano, cheddar, colby, edam, gorgonzola, gouda, and hard from pasteurization.
21 C.F.R. §§ 133.102, 133.106, 133.108, 133.111, 133.113, 133.118, 133.138, 133.141, 133.142,
13. See 21 C.F.R. §101.4(b)(2).
14. The current Codex standard on nutrition labeling requires that when nutrition labeling
is provided, the amount of calories, fat, protein, and carbohydrates be listed. The United States
proposed that saturated fat, sugar, sodium, and fiber be added to the list to make the Codex
standard more compatible with United States requirements. Several governments objected to this
proposed amendment, and it was not adopted.
15. For example, the United States had lost a recorded Codex vote (33 to 31 with 10
abstentions) on mineral water standards in 1997 and had lost the pasteurization issue in a Codex
16. As a technical matter, this could be done in a way suggested this month by the
Chairman of the WTOs General Council in his October 11 draft declaration for the Ministerial
Meeting. He suggested that the phrase international standards, guidelines or recommendations
in Article 3 of the SPS Agreement needs to be revised so that a differentiation is introduced
between mandatory international standards and voluntary international
guidelines/recommendations. Standards would presumably refer only to those decisions
made by a virtually unanimous Codex. Other Codex decisions would be considered as
guidelines/recommendations. The precise vote required for a Codex decision to be a
mandatory standard would be negotiated among the WTOs Members. The European Union has,
for example, suggested a two-thirds vote would be necessary. Currently, Codex standards,
guidelines or recommendations can be adopted by a plurality vote, and all are actionable under
the SPS Agreement.
17. The TACD was established in 1998 to provide consumer input into United States-European Union trade relations in various areas, including food and agriculture policy, and to
counterbalance the work of the Transatlantic Business Dialogue. About 60 consumer leaders
from 16 countries including CSPI agreed on 20 resolutions that could affect critical trade
issues. On October 15, 1999 the TACD issued a statement calling for the WTO Ministerial
Conference to change specific parts of the SPS Agreement because the current SPS Agreement
undercuts governments ability to establish and maintain legitimate, non-discriminatory food
safety and food-related consumer information labeling policies.
18. There is only one WTO decision interpreting Article 5.7, and it did not deal with the
issue of what provisional means. Japan Measures Affecting Agricultural Products (February
22, 1999). Instead, in that decision the WTO Appellate Body focused on the phrase reasonable
period of time in Article 5.7 and said (at 25) that what constitutes a reasonable period of time
has to be established on a case-by-case basis and depends on the specific circumstances of each
case, including the difficulty of obtaining the additional information necessary for the review and
the characteristics of the provisional SPS measure. (emphasis in original). The WTO held that
Japan had not reviewed within a reasonable period of time its 1987 varietal testing requirements
for imported apples, cherries, peaches, walnuts, apricots, pears, plums, and quince that Japan
asserts are designed to protect Japan from the codling moth.