Image from the ePingalert.org SPS and TBT notification system
Measures to Maintain a Healthy Food System
Governments have a responsibility to ensure the safety of their food supplies, and to protect the health of the plants and animals that supply the food system. They take steps to combat pests and diseases that threaten human, plant and animal health, seeking to eradicate them from domestic farms and ranches while also working prevent their introduction through imported products. For example, with respect to imports, governments often inspect imported products and reject those that are carrying pests and diseases. Or they require products to be treated or processed in a particular way to eliminate pests or pathogens, or to come from particular regions that are free of particular diseases. Such measures are known in international trade policy as sanitary and phytosanitary (SPS) measures.
Address Risks While Facilitating Trade
The United States is a major food exporter and importer, so we apply SPS measures to imports while also complying with the SPS requirements set by foreign governments when exporting to their markets. But while all governments recognize the need for – and the right of – other governments to impose SPS measures, they also want those governments to avoid overly restrictive SPS measures. SPS measures are supposed to be designed to address an actual health threat; they are not there to protect domestic producers from foreign competition. In particular, when countries negotiate to remove foreign tariffs and other formal barriers to their agricultural exports, they do not want those exports thwarted by false claims that they pose SPS risks.
In negotiating trade agreements, countries have sought to balance the twin objectives of protecting human, plant, and animal health and ensuring the international flow of safe food. When the World Trade Organization was established in 1995, it included an agreement on the rules governing how its members would impose SPS standards, known as the Agreement on the Application of Sanitary and Phytosanitary Measures, or SPS Agreement.
Commitments to Find the Balance
A fundamental requirement under the SPS Agreement is that governments develop and implement SPS measures using scientific principles and evidence. Governments are encouraged to base their SPS measures on international standards; however, they are free to depart from these standards if they want their SPS measures to be more protective than the standard, so long as the measures otherwise follow the requirements of the SPS Agreement.
In addition to having a scientific basis, the measures may be applied only to the extent necessary to protect human, animal or plant life or health. They should also not arbitrarily or unjustifiably discriminate between countries where identical or similar conditions prevail — that is, if two exporting countries have the same pest, the importing country may not allow products from one to be imported if treated for the pest without allowing imports from the second country if likewise treated. Members are also required to base their SPS measures on an appropriate risk assessment that considers relevant factors, such as whether the imported product came from a pest- or disease-free area and whether effective treatments are available to address the risk without prohibiting importation outright.
The SPS Agreement recognizes that countries sometimes must take SPS measures temporarily while they gather the information necessary for a more objective assessment of the risks. For example, a country may ban imports of a product when it learns that an animal disease normally posing a high risk has been found in the exporting country, but it is expected to narrow or eliminate the ban if, for example, it obtains additional information that the products come from a disease-free region of the exporting country.
Transparency and Regulatory Cooperation Go a Long Way
As with other WTO agreements, a WTO member can bring a dispute settlement case if it believes another member’s SPS measure does not meet the requirements of the SPS Agreement. While it is not uncommon for countries to consult on SPS concerns, it is relatively uncommon for such disagreements to proceed to formal dispute panel proceedings because they often involve complex scientific arguments and evidence, and because the SPS Agreement provides wide latitude for countries to decide how protective their standards should be and how to achieve those levels of protection. WTO panels have decided SPS claims in only a handful of disputes out of the nearly 200 for which decisions have been issued as of July 2017.
Many U.S. free trade agreements include SPS chapters. Most since 1995 have merely reaffirmed the requirements of the WTO SPS Agreement. However, the Trans-Pacific Partnership (TPP) Agreement, from which the United States withdrew in January 2017, includes new requirements that elaborate on those of the SPS Agreement to provide more detailed guidance to governments on how to develop and apply SPS measures, as well as greater transparency and due process for traders and the public. For example, the TPP Agreement would facilitate sharing of information required to conduct risk assessments, require publication of SPS regulations for public comment, require TPP countries to provide rapid notification to importers or exporters if their shipments are being detained for SPS concerns, and specify detailed rules for SPS-related audits, import inspections and certification requirements. It would also elaborate on procedural rules and transparency requirements in connection with emergency SPS measures.
SPS provisions in the North American Free Trade Agreement (NAFTA) were concluded before the WTO SPS Agreement; they cover many of the topics in the SPS Agreement, but in less detail. The upcoming negotiations to update NAFTA will provide an opportunity to modernize NAFTA SPS provisions based on more recent approaches to good regulatory practice, information sharing, and transparency.
The EU’s approach to SPS barriers
U.S. Animal and Plant Health Inspection Service (APHIS) and its role in agricultural trade agreements
Bruce Hirsh is principal with Tailwind Global Strategies LLC. Over an 18-year government career, he served in various roles including Assistant U.S. Trade Representative for Japan, Korea and APEC, Chief International Trade Counsel on the Senate Finance Committee, lead U.S. negotiator for the WTO Trade Facilitation Agreement, and supervisor on dispute settlement matters in Washington and Geneva.