Crucea.ro

by Cristian Popa, FoodLaw

Introduction

International trade is a complex issue due to the many different political and economical interests of the countries involved. In order to gain economic advantages and for protecting their local economies, countries around the world may impose various barriers for the imported products and, on the other hand, may organise themselves in regional associations, such as NAFTA or the European Union and to remove the trade barriers within those regional associations.
When it comes to food products, the international trade becomes even more complicated, due to the simple fact that imposing barriers to international trade is easier to be done. The reason is that restrictions to the food supply chain are easier to be applied when it comes to food safety and consumer protection, which are very sensitive issues, which are exploited by politicians around the world according to their national economical interests.
In this regard, the World Health Organisation (WHO) and the Food and Agriculture Organisation of the United Nations (FAO) established the Codex Alimentarius in the sixties. The role of Codex was to simplify the international food trade, by applying same standards to all food products and to remove in this way the barriers to the international food and agricultural trade.
However, after more than forty years from its birth, the importance of Codex in the international trade is still controversial, and in the present paper a critical analyse of the various aspects related to Codex Alimentarius will be done.
The present paper will take a critical look to the following:
- the aspects of the international food trade organisations and agreements,
- the role of Codex in establishing the EU legislation,
- the Codex decision making process, and
- the Codex key areas of activities.

1. International Trade and the World Trade Organisations

During the history, several organizations tried to regulate the international trade, but only after the Uruguay Round, the World Trade Organisation (WTO) was established, and, as mentioned on its website, “the WTO is the only global international organization dealing with the rules of trades between nations”.¹
During the Uruguay Round two “sophisticated mechanisms” to the international trade were introduced: the agreement on Technical Barriers to Trade (TBT) and the agreement on the Application of Sanitary and Phytosanitary Measures (SPS); “both introducing the concept of “science” into the law of international trade”. ²
According to D.A. Motaal (2004), “the SPS Agreement covers all measures that countries take to ensure the safety of their foods and beverages and of animal feedstuffs…; all other product requirements fall under the coverage of the TBT Agreement”. ³
In article 3.1 of the SPS Agreement is mentioned that “to harmonize sanitary and phytosanitary measures on as wide a basis as possible, Member shall base their sanitary or phytosanitary measures on international standards…”.4
With regard to rules on the international trade, and on scientific expertise, there are only three international organizations that are mentioned in the SPS Agreement: 5
1. the Codex Alimentarius for food safety,
2. the International Office for Epizootics (IOE) for animal safety, and
3. the International Plant Protection Convention (IPPC) for plant safety.
In order to remove international barriers to trade in specific regions, several Regional Trade Agreements were established:6
 NAFTA: composed of : USA, Canada and Mexico;
 MERCOSUR: composed of: Argentina, Brazil, Paraguay and Uruguay
 Andean Community: composed of: Bolivia, Columbia, Ecuador and Peru
 Asian Countries: composed of: Malaysia, Indonesia, Philippines, Singapore and Thailand
Based on the facts presented above, my main critics to the international trade and world trade organizations are the following:
1. The issue of “protection”: larger nations try to protect their economies and interests and, as a result, unions such as the European Union, or countries such as the United States, China, Russia or Canada are greatly influencing the international trade.7 One example in this regard is the Banana war from 1997, when Europe was accused on breaking WTO rules.8
2. The issue of “harmonization” and in particular how it interacts with national legislation; for example some US standards are “more stringent” than Codex Standards in 19% of the cases.9
3. The issue of “others”: besides the food safety issues included in the SPS Agreement, other criteria such as social concerns or environmental concerns can lead to trade restrictions; for example in 1989 the European Community banned the use of the recombinant bovine growth hormone, which was not justified under the SPS Agreement.10
4. The issue of “power”: as mentioned by M.A. Livermoore in 2006: in the structure of Codex deliberation: “ First, developing countries have a lack of resources. In addition, states have more power than non-states actors;…finally there is a bias towards industry groups…”.11

2. Role of Codex

As mentioned on its official website: “simply stated, the Codex Alimentarius is a collection of standards, codes of practice, guidelines and other recommendations” in relation to food.12
Moreover, the Codex Alimentarius Commission (CAC), which was created in 1963 by FAO and WHO, “must develop the food standards with the goal of ensuring fair trade practices in the food trade and by protecting the health of the consumers…”.13
The EU member states and the European Commission are members of the Codex Alimentarius with the Directorate General of Health and Consumer Protection acting as the contact point that coordinates this work.14
Simply stated, the European Commission (EC) is taking position on the different issues raised by the CAC, by issuing different EC position papers for Codex Alimentarius.15
That means that the main role of Codex in formulation of the EU legislation is a consultative one, and, as recently happened, the EC can be (for example) in favour of adoption of a proposed MRL (Maximum Residues Level) or not (see Methomyl proposed levels that were accepted vs. Indoxacarb who were not accepted).16
My first critic to the role of Codex is related to its definition: protecting the health of the consumers on one hand and promoting the international trade on the other hand. 13
According to L. Sikes (1998): “there is no codified standard requiring Codex to apply precautionary principles or spelling out precisely how Codex is to assess whether consumer health is protected adequately”.17 For example, France objected any Codex Dairy standards that required pasteurization; Portugal and Spain (pottery producing nations) objected against lead standards (L. Sikes, 1998). 17
Another critic to the role of Codex is related to the fact that its standards are often weaker than other national standards, as shown in a report of the Centre for Science in the Public Interest (CSPI) that found five areas (including food additives and dairy products) where Codex standards where lower than US standards.18
Another critic is related to the fact that the member countries of Codex “are encouraged to accept and implement Codex-approved food standards, but are not obliged to do so”.19 This often leads to disputes which must be settled.
As shown by Colm Gaynor, from the Food and Veterinary Office (FVO) from Ireland, “the EU is fully committed to set food safety standards and reflect those standards in its own legislation…; however, some countries may have [big] difficulties in achieving such standards…”20
This represents my final critic which is related to the level of the standards imposed by the Codex Alimentarius; for some countries it will be very difficult to reach them.

3. The Codex decision making process

As mentioned on its website, the Codex decision making process is time consuming and consists of eight steps which can take several years to completion.21
For example, as shown on the 2002 report “it takes from 4 to 8 years in JMPR (Joint FAO/WHO Meetings on Pesticide Residues) from nomination of a compound for assessment to the adoption of a proposed MRL”. 22
This is my first critic to the Codex decision making process, that is time consuming.
Moreover, very often, this eight steps decision making process is time consuming and resources consuming without having any outcome, as it was the case of the Parmesan cheese.23
This leads to my second critic which is related to the failure of adopting standards due to various reasons (for example the geographical indications), as was the case with the product standards for Parmesan cheese.
My third critic is related to the fact that the meetings of the CAC are behind closed doors, without being transparent to the public; “however, representatives of big groups with economic interests, like Coca-Cola, Pepsi Cola, Monsanto or the Glutamate Technical Committee attended in June 1997 the Codex meetings”.24
Fourth critic is related to the fact that the priorities of the member countries are not taken into consideration in Codex decision making process.25
The fifth critic relates to the Codex Procedural Manual with over 200 pages of procedures, which in my opinion leads to bureaucracy, which in turn leads to spending of resources and time.26
Sixth critic relates to the fact that the Codex contact points in each state is represented by a Governmental authority, which may have political interests to serve; moreover, from time to time different parties, with different interests come into power and the national interests may change.27
Finally, the dispute settlements have their own procedures and are governed by a Dispute Settlement Body (DSB), which “can not oblige a country to change its law; all it can do is … to make recommendations; the disputing countries are left alone to solve the issues”. 28
This represents my final critic.

4.Key Areas of Codex Activity

According to the CAC’s strategic plan for the period 2008 – 2013, there are several areas of the Codex activity that will be given a higher importance; those are the following :29
4. Promoting a sound regulatory frameworks
5. Promoting widest and consistent application of scientific principles and risk analysis
6. Strengthening Codex work management capabilities
7. Promoting cooperation between Codex and other relevant international organizations
8. Promoting maximum and effective participation of members.
By comparison, in the last report from 2002 on the Codex Alimentarius activity there were made forty two recommendations for improvement, with the following main objectives: 30
 Greater speed in Standards decision making process
 Increased inclusiveness of developing member countries in the Standards development process
 Developing Standards that are of increasing usefulness
 Capacity building for developing countries.
As it can be seen, by comparing the strategic plan for the following six years with the recommendations made in the last activity report, there are no similarities between the two. This represents my main critic: that the recommendations which were made during the last activity report do not find themselves in the strategic plan of the CAC.
Second, as mentioned by M.O’K. Glavin (2003): “developing food standards are not binding to any country”; that means that “developed countries work for the adoption of standards that confer a competitive trade advantage on their products, or, alternatively, a disadvantage on competitors products”.31
This represents my last critic on the Codex Activity: that it should find a way to stop the practice of developing food standards by every single nation.

Conclusions

As it was shown, the Codex Alimentarius is far from being perfect and many critics can be made on its influence on international trade, its role, the decision making process, key areas of its activity, and so on. However, for the EU member states, Codex Alimentarius becomes of crucial importance when making exports to international markets. Even if a dispute settlement between trading countries may start, it is however difficult to refuse the access of food products on a market if the Codex Standards are met. And this makes Codex Alimentarius a very important tool for opening international markets, despite the many critics that can be made.

References:

¹ What is the WTO ? Definition of the World Trade Organization, as shown on the Internet at: http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm
² D., A., Motaal – The “Multilateral Scientific Consensus” and the World Trade Organization – Journal of World Trade: oct. 2004, page 855.
³ D., A., Motaal – The “Multilateral Scientific Consensus” and the World Trade Organization – Journal of World Trade: oct. 2004, page 856.
4 Article 3.1 of the SPS Agreement, page 70, as presented on the Internet at the following web address: http://www.wto.org/english/docs_e/legal_e/15-sps.pdf
5 Annex A of the SPS Agreement, page 77, as presented on the Internet at the following address: http://www.wto.org/english/docs_e/legal_e/15-sps.pdf
6 The WTO’s International Trade Statistic on 2007 – page 23-29, as presented on the Internet at: http://www.wto.org/english/res_e/statis_e/its2007_e/its2007_e.pdf
7 The WTO’s International Trade Statistic on 2007 – page 13, as presented on the Internet at: http://www.wto.org/english/res_e/statis_e/its2007_e/its2007_e.pdf
8 Special Report: “10 Sovereignty issues now before the WTO” – page 3384 – National Journal from 20 Nov. 1999.
9 L. Unnevehr, L. Deaton, C. Kramer: “International Trade Agreement provides new framework for food safety regulation” – Food Review – Sept-Dec. 1994, page 4
10 L. Unnevehr, L. Deaton, C. Kramer: “International Trade Agreement provides new framework for food safety regulation” – Food Review – Sept-Dec. 1994, page 6
11 M.A. Livermore: “Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius” – New York University Law Review vol. 81.2, May 2006, page 783
12 Definition of Codex Alimentarius, as provided on its website – page 10, at the address: ftp://ftp.fao.org/codex/Publications/understanding/Understanding_EN.pdf
13 Mission of the Codex Alimentarius Commission, as presented on the Internet at the following address: http://www.codexalimentarius.net/web/index_en.jsp
14 European Commission position related to Codex Alimentarius, as presented at: http://ec.europa.eu/food/international/organisations/position_paper_en.htm
15 List of different EC position papers related to Codex Alimentarius, as shown on the internet at: http://ec.europa.eu/food/fs/ifsi/eupositions/eupositions_list_en.html
16 EC position related to a Codex draft for MRL’s as presented on the internet at : http://ec.europa.eu/food/fs/ifsi/eupositions/cac/cac2007_2ndcomments_en.pdf
17 L. Sikes : “FDA’s Consideration of Codex Alimentarius Standards in Light of International Trade Agreements” – Food and Drug Law Journal 53, 1998 page 328
18 “International Harmonization of Food Safety and Labeling Standards; Threats and Opportunities for the US Food and Drug Administration and the US Department of Agriculture” – June, 1997, as shown on the CSPI website at the address: http://www.cspinet.org/reports/codex.htm
19 L. Sikes : “FDA’s Consideration of Codex Alimentarius Standards in Light of International Trade Agreements” – Food and Drug Law Journal 53, 1998 page 328
20 C. Gaynor: “Food Safety Controls in Europe – Challenges and Opportunities” – Journal of AOAC International, volume 90, no. 1, 2007, page 5
21 The Codex 8 steps procedure, as provided on its website – page 17, at the internet address: ftp://ftp.fao.org/codex/Publications/understanding/Understanding_EN.pdf
22 “Report of the evaluation of the Codex Alimentarius and other FAO and WHO food standards work”, 15 November 2002, as shown on the internet at the address: http://www.fao.org/docrep/meeting/005/y7871e/y7871e00.htm#E11E12
23 “Codex fail to reach deal on Parmesan standard” – Agra Europe 2164, July 8, 2005
24 L. Sikes : “FDA’s Consideration of Codex Alimentarius Standards in Light of International Trade Agreements” – Food and Drug Law Journal 53, 1998 page 330
25 “Report of the evaluation of the Codex Alimentarius and other FAO and WHO food standards work”, 15 November 2002, as shown on the internet at the address: http://www.fao.org/docrep/meeting/005/y7871e/y7871e00.htm#E11E12
26 Codex Alimentarius Procedural Manual, as presented on the internet at: ftp://ftp.fao.org/codex/Publications/ProcManuals/Manual_17e.pdf
27 J.S. Eldrede, S.A.Coffield: “What every food manufacturer needs to know: realizing the impact of globalization on national food regulation” – Food and Drug Law Journal no. 52, 1997, page 31
28 J.S. Eldrede, S.A.Coffield: “What every food manufacturer needs to know: realizing the impact of globalization on national food regulation” – Food and Drug Law Journal no. 52, 1997, page 35
29 The Codex Alimentarius Commission – Strategic Plan 2008 – 2013, as shown on the internet at: ftp://ftp.fao.org/codex/Publications/StrategicFrame/Strategic_En.pdf
30 “Report of the evaluation of the Codex Alimentarius and other FAO and WHO food standards work”, 15 November 2002, as shown on the internet at the address: http://www.fao.org/docrep/meeting/005/y7871e/y7871e00.htm#E11E27
31 M., O’K. Glavin: “A single microbial sea: Food Safety as a Global Concern” – vol. 23, no. 1 from winter – spring 2003, page 212

Gheorghe Vanau