Here's a guest post by frequent commenter Aaron Cosbey of IISD, on a potentially very interesting SPS dispute:
In a letter sent Feb. 19 to Ron Kirk, USTR, thirty-three US senators urged him to use “all enforcement tools available” to address Russia’s recent “ban” on US pork, beef and turkey. The ban in question is actually a zero-tolerance standard for the growth- and muscle-enhancing drug ractopamine. Ractopamine is widely used in the US, but is banned in Russia, as well as in the EU and a number of other countries.
The Senators clearly had WTO dispute settlement in mind. Although they didn’t call for the USTR to initiate a dispute, they argue that the standard is inconsistent with Russia’s obligations under the SPS Agreement, since the Codex Alimentarius has set a maximum residue limit (MRL) on ractopamine that is greater than zero (but lower than US regulations allow). There are a number of features that make this issue well worth watching:
* The MRLs for ractopamine in cattle and pig tissue (not turkey) were adopted in July 2012 by the Codex in a vote that got exactly the number needed for a majority (69 – 67). Voting in the Codex, while allowed under its Procedural Manual, is highly unusual; the Manual instructs Chairpersons to “always try to arrive at consensus.”
* Following the vote Russia, China, the EU and eight other members registered their reservations, and most expressed their dismay that voting had been used to establish what they argued was not in fact an internationally agreed standard. The EU, citing a European Food Safety Authority study, argued that there was insufficient evidence on human impact to set a MRL, and complained that “the decision was taken on the basis of a single vote difference.” Russia defended its measures by arguing that the Codex MRL had been adopted by “mere voting, and not by consensus.”
* This case may well end up in WTO dispute settlement. Russia is not the only country with an effective ban; the EU, China and others have similar standards.
If the case reaches that point, the respondents will have to argue that their stricter-than-Codex measures are science-based. But will they first argue that the Codex standard is not an international standard within the meaning of SPS Art. 3(2)? Clearly there is a difference between a standard adopted by consensus and one adopted by a contentious vote, though SPS law and Codex regulations treat them no differently. The case stirs up some big questions about how science informs policy making (is a majority vote appropriate?) and about tolerance under trade rules for regulatory differences (should we be guarding against trade barriers, or protectionism?).
They’re questions that may become increasingly hard to avoid as standards for commercially important chemicals are debated by members with different approaches to risk management, and different public perceptions. If the ractopamine vote—called in frustration after the standard stalled for years at the final approval stage—signals a new trend, should we reconsider norms set by international organizations like Codex as the unqualified gold standard?