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Sanitary and Phytosanitary (SPS) measures refer to provisions that countries adopt to protect human, animal and plant life and health within their territory against contaminated and unsafe food. The adoption of these measures stems from the fact that it is the cardinal duty of the state to ensure that the food produced, sold and consumed within its territory by its people, animals and plants is safe for their life and health. No sovereign country can allow the life and health of its people and its flora and fauna to be harmed as a result of the consumption of adulterated, unhygienic or unsafe food.
SPS provisions apply to food produced and sold domestically and also to imported food. In other words, a sovereign and independent country has the right to impose sanitary (human and animal health) and phytosanitary (plant health) measures to regulate not only food produced domestically but also imported food.
SPS measures can take many forms:
- Inspection of products.
- Requiring products to come from disease-free regions.
- Providing permissible levels of pesticide residue in a food product, or permitting the use of only certain additives.
- Procedures that need to be followed while manufacturing or processing a particular food product.
- Quarantine requirements including relevant requirements associated with the transport of animals and plants.
- Sampling procedures and methods of risk assessment.
- Packaging and labelling requirements, etc.
Examples of some of these measures could be limiting the content of aflatoxin in groundnut to a particular amount, or banning food from disease-affected regions, such as banning the consumption of all chicken and chicken products coming from areas affected by bird flu.
Links between SPS measures and international trade
Since the SPS measures adopted by a particular country also affect food imports, there is a direct link between SPS measures and international trade. For instance, country ‘A', conscious of the health of its citizens, may ban the import of a particular product from country ‘B' on grounds that it contains an ingredient that is harmful to the health of the people of country ‘A'. If we go by the definition of SPS measures, as understood above, country ‘A' is very much within its right to impose a ban on imports. However, the apprehension is that in the name of protecting the life and health of its citizens, country ‘A' may be protecting or shielding its inefficient domestic industry that may be affected by the import of a particular product from country ‘B'.
For instance, country ‘A' may impose a ban on cheese coming from country ‘B' on the grounds that the cheese manufactured in country ‘B' contains certain ingredients that are harmful to the health of the people of country ‘A'. However, the real cause or intent of the ban may be to protect country ‘A's inefficient cheese industry. This is a clear case of protectionism, under the guise of protecting the health of people at large by imposing SPS measures.
The above example demonstrates the arbitrary and unjustifiable use of SPS measures as a protectionist barrier to the free and fair flow of international trade. In order to check such an abuse of SPS measures, the General Agreement on Tariffs and Trade (GATT), adopted in 1947, stated (Article XX) that countries are allowed to adopt measures necessary to protect the life and health of humans, animals and plants, provided the following conditions are satisfied:
- There is no unjustifiable discrimination between countries where the same conditions prevail. For example, if country ‘A' imposes a ban on cheese coming from country ‘B' because of the presence of a particular ingredient/additive, say ‘x', then the same ban should also be imposed on cheese coming from country ‘C', if the cheese from country ‘C' also has the same ingredient/additive (assuming the rest of the quality is the same) . If country ‘A' allows the import of cheese from country ‘C', and bans cheese coming from country ‘B', then there is unjustifiable discrimination in favour of country ‘B'. Such an SPS measure would be illegal.
- SPS measures are not used as disguised restrictions on international trade. This can be understood from the example given above, where a country imposes a ban on a particular food import for protectionist purposes (to shield its inefficient domestic industry from competition), under the guise of protecting the health of its citizens.
In other words, GATT recognises the sovereign right of countries to protect the life and health of humans, animals and plants and hence allows the adoption of SPS measures provided these measures are not abused as disguised restrictions on international trade, or are not arbitrarily used to discriminate between countries.
This basic rule in GATT was cemented by the adoption of the Agreement on the Application of Sanitary and Phytosanitary Measures, popularly known as the SPS Agreement. The SPS Agreement builds on the basic GATT rule (Article XX) on the protection of life and health of humans, plants and animals, while maintaining the basic philosophy of preserving the sovereign right of any government to provide health protection to humans, animals and plants provided that these sovereign rights are not abused for protectionist purposes and do not result in unnecessary obstacles to the free and fair flow of international trade.
Apart from building on this basic rule, the SPS Agreement (negotiated during the Uruguay Round of negotiations, from 1986 to 1994) also provides detailed procedural rules for the formation and application of these rules. Since SPS measures could effectively restrict international trade, the need was felt to have detailed substantive and procedural rules so as to discipline the use of these measures.
The cardinal principle in the SPS Agreement for the imposition of SPS measures is that every SPS measure should be backed by sufficient scientific evidence. In other words, measures to ensure food safety, or measures to protect the health of humans, animals and plants, should be based on the analysis and assessment of objective and accurate scientific data. The agreement also requires that while assessing the risk to animal or plant health, countries shall also take into account relevant economic factors such as the potential damage that could be caused to production or sales in the event of the entry or spread of a pest or a disease.
SPS standards or measures in different countries
Individual countries have the freedom to develop their own food laws (SPS measures), according to their domestic requirements. However, the SPS Agreement encourages countries to base these measures on international standards, recommendations and guidelines. This process is called harmonisation . These international standards, recommendations and guidelines are not provided in the SPS Agreement, nor are they developed by the World Trade Organisation (WTO). Instead, the Food and Agricultural Organisation (FAO) of the United Nations develops these standards. Within the FAO, the organisations responsible for developing standards are:
- Codex Alimentarius Commission, for food safety.
- International Office of Epizootics (OIE), for animal health.
- International Plant Protection Convention (IPPO), for plant health.
Member countries of the WTO participate in the meetings of these standard-setting organisations, which determine the effects on human health of pesticides, additives and other contaminants.
It is important to note that it is not mandatory for countries to follow the standards developed by these international organisations. In fact, the SPS Agreement allows countries to have standards that are even stricter than those prescribed by these organisations. For example, assume that Codex prescribes the aflatoxin content in groundnut to be four parts per billion (ppb), which is safe for human consumption. The SPS Agreement allows a country to have a stricter level (lower than 4 ppb) of aflatoxin content. A country can, therefore, impose a condition that all imported groundnut have an aflatoxin level of less than 2 ppb. This is a case of imposing a stricter SPS measure than is warranted by international standards.
However, it is important to note that if a country imposes a standard that is stricter than what has been prescribed by international standard-setting organisations, then it must provide scientific justifications for imposing the higher standard. The SPS Agreement also states that in cases where adequate scientific evidence is not available, a country may provisionally adopt SPS measures on the basis of available pertinent information.
Risk assessment
One of the cardinal principles involved in establishing SPS measures is risk assessment. The SPS Agreement states that countries should ensure that their sanitary and phytosanitary measures are based on an appropriate assessment of all risks to human, animal and plant life or health. This assessment of risks should be done by taking into account the risk assessment techniques developed by the relevant international organisations, such as Codex. The SPS Agreement further requires that in the assessment of risks, countries shall take into account the available scientific evidence, relevant inspection, sampling and testing methods, relevant ecological and environmental factors and conditions, etc.
Equivalence
Another important concept in establishing SPS measures is that countries shall accept the SPS measures of other countries even if these measures differ from their own measures, provided the other country is able to objectively demonstrate that its standards are deemed appropriate by the other country. For example, suppose the SPS measure of country ‘A' requires that aerated drinks should have pesticide residues not more than ‘x' units. Now, if the pesticide residue in the aerated drinks of country ‘B' is more than ‘x' units, and country ‘B' is able to objectively demonstrate that even with a greater level of pesticide residue its aerated drinks are safe for the people of country ‘A', then ‘A' should honour the SPS measure of country ‘B', notwithstanding that this standard is different from its own standard. This process is known as ‘equivalence'.
Communicating SPS standards
The SPS Agreement imposes many transparency obligations on WTO member countries. Under the agreement, countries must communicate their SPS measures to other countries in the following ways:
Prompt publication : Countries should ensure that sanitary and phytosanitary regulations, measures, guidelines, etc, are published promptly in a manner that enables all countries to become acquainted with them.
Reasonable period : Countries shall allow a reasonable interval between the publication of an SPS measure and its entry into force. In other words, any country that wants to adopt a new SPS measure should publish it promptly and allow the other countries to get acquainted with it before it adopts it and makes it legally enforceable.
Provision of enquiry points: Each country should ensure that it has an enquiry point to answer all the relevant and reasonable questions regarding its SPS measures.
Concerns of developing countries in the implementation of the SPS Agreement
Developing countries have many concerns regarding the functioning of the SPS Agreement. The biggest concern has been that this agreement is being used by developed countries as a non-tariff barrier. Developed countries often impose arbitrary standards on food products coming from developing countries and hence deny them market access.
The following issues are important for developing countries:
Standard-setting: Standards set by international organisations are often too harsh and difficult for developing countries to implement. These measures do not take into account the existing realities in developing countries and hence impose harsh financial obligations on these countries to fulfil such high standards. One of the reasons that international standard-setting organisations do not take into account the interests or realities of developing countries is because developing countries' participation at their meetings is poor. Due to technological backwardness, developing countries lack the capacity to understand the actual import or connotation of a particular standard developed in these organisations.
Another reason is the manner in which the standards are adopted at the international organisations. Under the present scheme of things, if there is no consensus on a standard, the Codex Alimentarius Commission and the OIE adopt the standard by a simple majority of votes cast. The simple majority rule has resulted in some Codex standards being adopted or rejected by a relatively small majority, with a large number of member countries not voting in favour.
Two recent examples illustrate this point. The standard on maximum residue limits for growth hormones (in beef) was approved by 33 votes in favour, 29 against and 7 abstentions. The revised standard for natural mineral water was approved by 33 votes in favour, 31 against and 10 abstentions. In both cases there was a very small margin between adopting and rejecting a particular standard. This manner of adopting standards has given rise to criticisms and questions about the genuine international nature of Codex standards. As a result, the Codex Commission is in the process of analysing a number of options to improve its standard-setting process. The standard-setting process should be such that the views and concerns of all countries are taken into account.
Equivalency: The principle of equivalency, as discussed above, has been designed to benefit developing countries that are not in a position to fully develop their SPS measures according to international standards, but can still provide food that is not harmful to the health or life of humans, animals and plants. However, in reality, it has been seen that developed countries do not make use of the principle of equivalence. They often refuse to honour the SPS measures of developing countries following the equivalence principle even when the developing country is able to prove that its SPS measure is safe and will not cause any harm to the life and health of humans, animals and plants.
Transparency and notification provisions: Transparency is fundamental to ensure that SPS measures are scientifically sound and do not have a harmful impact on international trade. However, it has been observed that developed countries often arbitrarily change their SPS measures, and do not provide adequate time to developing countries to get acquainted with the new measures. There are variations in the content and quality of the information provided, and there are also delays in responding to requests through enquiry points.
Special and differential treatment: Although the SPS Agreement talks of providing special and differential treatment (S&D) for developing countries and least developed countries (LDCs), such treatment has not been forthcoming from developed countries. This has been one of the major concerns of developing countries in the SPS Agreement.
Technical cooperation: The SPS Agreement, it seems, was negotiated and concluded with slight regard for the conditions necessary for its effective implementation, in particular in developing countries. Although the SPS Agreement states that technical assistance will be provided to developing countries either by developed countries or by international organisations, this has not been followed in true spirit. The technical assistance till now has mainly been in the form of credit, grants and donations. However, the need is to create a substantive policy framework for providing technical assistance. Such technical assistance should include the transfer of technical know-how and technology to developing countries. Technical assistance should also take into account the infrastructure limitations of developing countries and their socio-economic conditions. | 
