Conference on International Food Trade Beyond 2000: Science-Based Decisions, Harmonization, Equivalence and Mutual Recognition
Melbourne, Australia, 11-15 October 1999

Food Trade and Implementation of the SPS and TBT Agreements: Challenges for Developing Countries in Meeting the Obligations of the SPS and TBT Agreements and the Codex Alimentarius


H.E. Cham Prasidh, Minister of Commerce, Cambodia

Table of Contents

I. International Trade in Food

1. The present international trade in food has evolved over many centuries. No longer does it simply comprise commercial transactions that take place between buyers and sellers, but instead has become a complex operation that takes place at two levels. At the commercial level buyers and sellers negotiate and agree prices and product specifications, and at the compliance level governments of exporting and importing countries interact to ensure food products meet the statutory requirements of importing countries.

2. Each element of the operation has become extremely sophisticated. For example, from primitive beginnings, the production of food for both direct consumption and as a raw material for further processing has given rise to the important fields of agricultural, animal and marine sciences. Similarly, the now established science of food technology evolved from man's earliest attempts to process, preserve, store, and transport foods. As a result of these developments food production is scientifically based and it is possible to transport food over long distance to arrive at its destination in a wholesome condition.

3. Estimates of the size of world trade in food for human consumption vary considerably, but it is now very large with an annual value of between US$400 and 500 billion. Products traded include processed and preserved foods of plant, animal and marine origins as well as live animals, fresh fruits and vegetables, grains and beverages.

4. Factors such as climate and growing conditions, domestic demand for locally produced food, prices paid for products and efficiency of production determine whether or not a country is a net importer or net exporter of food. However, whichever the case may be, it is customary for countries which are self sufficient in food or have an excess food production to also import food. Sometimes countries not self-sufficient in food export some of their production, especially where the product or products are sought after elsewhere and bring premium prices. In brief, an increasing number of countries, including developing countries, are becoming both importers and exporters of food, and the number is expected to increase.

5. Industrialized (developed) countries are the large food trading nations both in terms of exports and imports. Developed countries are mostly net importers and import more in value than they export. On the other hand, developing countries are in general net exporters, exporting more in value than they import.

6. The international food export market is of great economic importance, to both developed and developing countries but particularly to developing countries. Not only does food trading earn hard currency, it also creates and provides work for many people at all links in the export chain

7. In order to become successful food exporters, developing countries must produce commodities that consumers in other countries want and which meet the import requirements of those countries in which markets lie. This requires concerted action by producers, shippers and governments to meet basic food legislation requirements. However, it must be noted that today, in 1999, almost 100 years after the movement for government food control began, there still remain a number of developing countries that do not have even a basic food act!

8. To implement their laws and regulations many of the most important importing countries established food control agencies whose principal task was, and remains, to ensure that all domestically produced food and food imported complied with the law. Products that did not comply were quite often destroyed resulting in substantial financial loss to producers, processors, importers, exporters and governments of exporting countries. As a result, a number of exporting countries established export food control agencies to ensure that exported products complied with the requirements of importing countries. However, as a result of countries proceeding independently with the establishment of their own food regulatory measures and introducing differing requirements, it became increasingly difficult for the food trade to operate.

9. Some countries also introduced unscientific requirements that had little to do with protecting the consumers' health or ensuring fair trade practices. These amounted to nothing more than non-tariff trade barriers or technical barriers to trade. By using such devices countries could select whom they traded with and discriminate against those with whom they did not wish to trade for political or some other reason. It is accurate to say that instead of facilitating the international trade of food, government intervention through laws and regulation impeded that trade making it difficult for it to operate effectively. More recent international actions through the FAO/WHO Codex Alimentarius Commission and the World Trade Organization have helped in eliminating some non-tariff trade barriers.

10. The 1994 Uruguay Round Agreements concluded in 1994 with the Final Act signed in Marrakech, Morocco, including agriculture and agricultural products. The final Act also established the World Trade Organization (WTO), which has a membership of 134 members, and has attached to it several Agreements and Ministerial Decisions and Declarations and include the Agreement on the Application of Sanitary and Sanitary and Phytosanitary Measures (SPS Agreement) and the revised Agreement on Technical Barriers to Trade (TBT Agreement). Both those Agreements are related to the trade in food with the SPS Agreement specifically related to human health and safety.

11. The SPS Agreement recognizes that governments have the right to adopt sanitary and phytosanitary measures but stipulates they should be applied only to the extent necessary to achieve the necessary level of protection; that governments should not arbitrarily or without scientific justification discriminate between members where identical or similar conditions prevail; and emphasizes the use of science in making decisions as well as utilizing the principles of risk analysis in setting appropriate levels of protection. Several very important words, with even more important meanings and impact, are contained in the SPS Agreement. These include discrimination, equivalence, risk assessment and transparency.

12. The TBT Agreement on the other hand is related to the quality aspects of food, such as labelling of products and those issues not covered by food safety aspects, which are not specifically covered under the SPS Agreement.

II. Status of Developing Countries

13. Food quality control as it is generally understood today may be defined as the control of the quality (including safety) of food stored or sold to the public so as to protect the consumer against health hazards as well as commercial fraud. Whilst the basic concept of such control is very old, it has received wider coverage recently due to the continuous technological improvements in food production, processing preservation, storage and the ever increasing field of distribution. Because of greater awareness of potential food hazards along with expansion in food trade, it is natural that issues relating to food quality and safety, consumer protection and food control came into greater limelight and were considered important enough to be of concern at international level.

14. There is an acute awareness in developing countries of the importance of food control in consumer protection, and developing countries are becoming increasingly interested in this specialized and highly technical field. The fundamental need for safeguarding the consumer against health hazards and commercial fraud is the same all over the world. This need is the same in Cambodia as it is in Japan or as it is in Brazil or Cameroon or the USA. A person's life and welfare is not less important because they live in Latin America, Africa, Eastern Europe or Asia. Sixty-one percent of the world's population currently lives in Asia and the need for protection of those consumers is as necessary there as it is in another part of the world. This must be understood by all concerned.

15. There is, however, a degree of difference between the problems of the developing countries and the more industrialized ones. The latter countries already having been reasonably well organized for food control and health protection for some time, in fact most since the early 1900's. On the other hand many developing countries do have a basic food law - either inherited or more recently established empowering the authorities concerned to exercise control. However, in spite of this, there are still countries in the world today that for one reason or another lack a food act and detailed regulations for controlling food quality and safety. Without a food act the chances for providing proper consumer protection are very limited. Even with a food act and regulations, the lack of a complete and effective food control infrastructure to ensure compliance and to provide consumer protection makes the situation unacceptable.

16. Many developing countries lack the facilities to implement food control practices properly. This may be one of the most marked differences from the more industrialized and developed countries. Most developing countries still need to provide for well-equipped food control laboratories or to expand or improve the equipment of the existing ones. Another improvement needed in developing countries is the elaboration of food regulations to fill in the broad areas encompassed by the basic food act. This is needed so that detailed information is provided so that a determination can be made if a particular food is adulterated or not and is most needed in the area of traditional foods. The greatest impediment for developing countries however, is the shortage of trained staff to work as food control officials at all levels - inspectors or controllers who evaluate compliance of the food factories, warehouses, restaurants and the markets; a lack of qualified chemists, microbiologists who test the samples to determine their conformity with the food quality and safety requirements; and lastly a lack of qualified magistrates or judges who finally deal with the result of the regulatory procedures under the basic food act. It is a known fact, that the success of any food control activity hinges upon the availability of such trained, competent and conscientious control staff.

17. Why, in many instances, are the developing countries so far behind in establishing and operating an effective and efficient food control operation? There may be several reasons but one of the main ones is the lack of resources both financial and physical (people/facilities). The funds to establish or strengthen such systems of control are just not available for many reasons. These reasons include the competition for already scarce resources to improve national situations by alleviating various serious problems including the elimination of poverty, ensuring food security, improving nutrition of the populations, combating HIV, and the elimination of malaria.

18. Where does ensuring food safety and quality fit into the national planning scheme and thus obtain the necessary funds for strengthening such systems? In fact, some countries reportedly have been heard to state: "First give me food for my populations and then I shall consider food control"! This lack of appreciation of the quality and safety of food as a prerequisite for adequate food supplies is a very serious problem being faced currently by all developing countries and indeed also by some developed countries.

19. In addition to a lack of resources, both financial and physical, developing countries have other problems. For example, it is known that in some instances food control is given a low priority in national planning caused in part by the lack of knowledge concerning the role of food control in consumer protection and in promoting the national economy. Other problems stem from social and structural circumstances. Systems in developing countries associated with food are fragmented, and there are virtually hundreds of thousands of middlemen who handle food. As the infrastructure for post-harvest handling of food is not so well developed it leads to problems of spoilage, wastage, and unsafe food. Because of lack of purchasing power by large parts of populations in developing countries, significant quantities of food are not prepackaged, with most of the food handling practices being traditional.

20. The preponderance of foods vended on the streets brings it own problems, and food service establishments are poorly maintained with inadequate hygiene. Where they exist, food control programmes have to cover both the traditional small scale manufacturers and the highly sophisticated processing establishments as well as all operations between those two extremes. Lack of coordination between food control agencies at different levels of government creates difficulties that are not easy to overcome, with conflict and duplication of effort resulting. It is self evident that food control systems applicable and available to the industrialized world with its greater resources and technology are not necessarily suitable for transplanting to and adoption by the developing world. Unless there is commitment from the highest levels of government in developing countries, and serious attempts made to develop national food control strategies for dealing with food based problems in a coherent manner - with the collaboration of the food industry - there is unlikely to be any progress made at the grass roots.

21. Lastly, there is often a lack of motivation amongst consumers, industry and government. It is recognized that once a strong motivation exists the other obstacles can most likely be overcome in one way or another, sometimes with outside assistance such as that which FAO, other agencies and governments can provide. It is recognized that the major effort, however, must be made by the nation itself with the optimum utilization of its own resources, both financial and physical. But even the minimum of outside assistance may sometime greatly stimulate progress toward the development of an effective system of control.

22. In addition to the aforementioned problems being faced by developing countries, it is most important to note the fact that the pace of updating food safety and quality standards, codes of practice and guidelines by the Codex Alimentarius is being done very quickly. In fact, the pace at which new technology is being introduced into food quality and safety control sometimes makes it incomprehensible. It seems as if it was only a few years ago that food control agencies were implementing good manufacturing practices (GMP's) in the food industry. The GMP concept, along with basic food handling or food sanitation procedures was, in fact, for many years the basis for evaluation of compliance by food inspectors and the controlling agencies both on a domestic and international basis.

23. But changes have taken place. As an example, since the early 1960's there has been a change in the way that food control has been carried out. Up until that time, food control agencies relied on end-product sampling and analysis and the inspector's observations at the time of inspection. However, the Hazard Analysis Critical Control Point (HACCP) system was introduced in the early 1960's because of its overwhelming success in the US space programme in ensuring the quality and safety of rocket assemblies, and foods to be consumed by the astronauts. In the food processing area, it is a technique designed to improve the quality control system for food safety in the food processing industry. It was also introduced as a cost cutting inspection system by governments. It should be noted that when first introduced by the food industry it was a voluntary system. Food inspectors were to concentrate on the critical control points (CCP's) that had been established by the food processing industry. At the same time, other aspects of an inspection were curtailed in favour of checking on these CCP's and ignoring the other aspects. It is now noted that the regulations in some countries relating to the use of HACCP no longer only recognize it as a "voluntary" tool for assisting in ensuring an effective quality assurance system, but have made its application "mandatory". This is happening more and more - especially in developed countries!

24. At the same time as the developed countries are increasingly adopting HACCP as a mandatory system, life for the food industry in developing countries is becoming increasingly difficult . Many of them have neither the resources nor the technical expertise to put the HACCP system in place, but they are aware that the adoption of HACCP is a prerequisite to the importation of their export food products into some markets. The implementation of HACCP is not cheap! The costs involved are indeed quite high. The question raised by many control officials is whether or not such demands are necessary. It is even believed by some that it is only a matter of time before the requirements by some countries of mandatory HACCP may be challenged in the WTO on the basis of "equivalence". It could be argued that the effective use by some countries of GMP's and other control systems to ensure food safety and quality may very well produce results equivalent to results achieved through the application of HACCP.

25. In addition to the use of HACCP, the use of risk analysis is playing an increasingly important role in ensuring food safety. It appears that risk analysis is the "in thing", and from all reports it will continue to pervade the operations of food control agencies for a long time to come. The use of the term "risk assessment" is quoted throughout the SPS Agreement. Several countries and international organizations, including Codex, are now taking action to implement the use of "risk analysis" in food control procedures. This action is taking place at the same time that officials from developing countries are crying out for help in trying to understand what "risk analysis" is all about! Many of those officials are basically afraid of risk analysis because they don't understand it and they wonder what the additional cost of adopting risk analysis in their countries. Already, the cost of attempting to implement HACCP in food industries in developing countries is reportedly quite high. The uncertainty of now having to enter the risk analysis field is most worrying and confusing. In view of this, and when setting the process for risk analysis, Codex and governments must give much thought to the needs of developing countries and also the problems of developing countries, especially those relating to the availability of resources - both physical and financial.

26. As indicated, Codex has begun the work of introducing risk analysis into its plan of work. The developing countries are now being informed that they must accept a certain level of risk related to food safety. It is questioned whether or not the developed countries are at the same time telling their consumers that they must also accept a certain level of risk - a higher level of risk than has been utilized in the past; that zero risk is not practical or possible. Certainly from looking at the work of Codex related to food additives and pesticides it appears that the Codex is continuing to set what could be considered to be approximately zero risk in establishing acceptable levels of use and maximum residue limits for these substances. At the same time, some countries continue to reduce permitted levels of substances to levels so low that they are, in fact, most difficult to identify without very sophisticated analysis techniques. The real question is "Where is zero?" ... and how does all this impact upon developing countries. It is a known fact that in many developing countries the lack of proper food control infrastructure have led them to being forced to accept a higher level of risk on matters related to food safety than in developed countries. This must not be permitted to continue!

27. In response to the WTO's SPS Agreement, Codex and governments are now working on how to judge and implement "equivalence"...equivalence of food control systems, including equivalence of food safety programs. When countries first reviewed the WTO's SPS Agreement the aspect of "equivalence" was very much welcomed. However, uncertainty has replaced this "happiness" as developing countries now await a complete explanation of what is meant by "equivalence" and how it is to be implemented and what must be done. Again, the cost factor for developing countries is very much of concern.

28. At the same time that technology in the control of food safety is rapidly moving forward it appears that there is a definite redirection by most developed countries on how a food control organization implements its food control programs. There is now much more emphasis on food safety while at the same time, almost totally ignoring or "forgetting" the quality aspects involved. In fact, it appears that some officials from developed countries no longer relate to quality factors such as decomposition, adulteration, misbranding and short weight - all factors that are indeed important to the consumers, their pocketbooks and ultimately their health. Certainly, food safety is of great concern to everyone and systems must be in place to ensure that the food supply is safe. However, the quality factors that also may have an adverse effect on nutrition, the food supply and food security must not be forgotten. Money spent on poor quality and adulterated food products is wasted and thus cannot be used for other things such as health care and education. In addition, the nutritional status of people is reduced when hard-earned money is wasted on poor quality and/or adulterated food.

29. Even today, developing countries continue to receive shipments of foods which are of such low quality that they are not acceptable for use by consumers, and most likely could not have been distributed legally within the country of origin. Also shipments of food either with an already expired use-by date use or with use-by dates close to expiry are being exported to developing countries. This practice is commonly referred to as "dumping" and must be stopped. It is both an unfair practice as well as one that could certainly cause harm to consumers. Exporting countries, many of which are so called developed countries that permit or "close their eyes" to such practices should take remedial action to ensure that they are not permitted. It is noteworthy in this regard that many of the most industrialized countries do not have export food control programmes nor do they have export food control agencies.

III. Codex Alimentarius and the
World Trade Organization

30. The Codex Alimentarius Commission, with its 165 Member Nations, has certainly had a most positive influence on the quality and safety of foods produced and sold throughout the world. It is recognized that the Codex is the only intergovernmental body in the world today that is taking positive action to improve the quality and safety of the world's food supply. Certainly much credit must be given to both FAO and WHO for their profound interest in overseeing the very important work being carried out by Codex.

31. Developing countries strongly support the work and outputs of Codex. However, developing countries continue to find it increasingly difficult to fully participate in the work programme of Codex. This problem has, in fact, been discussed several times including during the FAO/WHO Conference on Food Standards, Chemicals in Food and Food Trade that was held in Rome in 1991 and which adopted a recommendation that called for " of mechanisms to facilitate developing country participation, which might include extra-budgetary resources, pre-session workshops and a possible amendment of Codex Rule of Procedure (Rule XI.4) regarding national delegation financing." It is now eight years since this recommendation was made and yet the problem of developing countries participating in the work of Codex continues today. While it is indeed recognized that there has been an increase in the number of developing countries attending Codex sessions there are many developing countries that still have not been able to participate, not due to lack of interest but rather due to lack of funds. It is recognized that at least a few of the Codex Committees have changed their venue and have, in fact, held some of their meetings in other regions (Asia, Latin America). This is certainly a positive step in getting more input from developing countries. Perhaps more committees should follow suit where possible. In addition, it might be a valuable action if perhaps the Codex Secretariat and FAO and WHO give consideration to holding sessions of the Codex Alimentarius Commission in regions other than Europe.

32. It has been noted that more and more Codex committees are beginning or continuing to function through working groups established during the sessions. This is most discouraging to developing countries participating in Codex. Most developing countries, if they are able to fund participation, can afford to only send one representative to such a meeting. Most developed countries are able to send more than one delegate and thus these delegates can attend the various concurrent-working groups; the delegates from the developing country can only participate in one such group and thus cannot fully participate in the complete deliberations. This procedure appears to discriminate against the participation of developing countries and should at least be looked into by the Codex Secretariat.

33. As mentioned, Codex was founded in 1962, over thirty-five years ago. Since its founding the Codex has produced a large number of pesticide residue limits (MRLs) and also numerous guidelines on the use food additives. In addition, many standards, both horizontal and vertical have also been prepared along with various guidelines and codes of practice. It must be understood that the majority of these outputs have been based on information provided by developed countries with little data being looked at from developing countries, including tropical countries. This is creating some concern as food products are being consumed throughout the world and in varying amounts based on different dietary habits. Perhaps, it might be time to review at least some of work previously carried out utilizing more recent information based on different conditions of diet and climate. Of course, this would mean that developing countries and others are going to need to provide up to date exposure information. Needless to say that this information is currently needed when establishing new limits.

34. Lastly, numerous previous meetings and Conferences on food quality and safety, including the 1991 FAO/WHO Conference on Food Standards, Chemicals in Food and Food Trade, have all recognized the needs of developing countries for technical assistance to establish or strengthen their food control systems and have recommended that FAO, WHO and developed countries should strengthen their efforts to provide training and other support in this area. It is, in fact, recognized that it is only through the upgrading of food control systems in developing countries that they would be able to ensure conformity of their food exports with international requirements and those imposed by the importing countries. It is also noted that the WTO's SPS Agreement, which was effective on 1 January 1995, calls for developed countries to provide technical assistance to the developing countries to implement the necessary requirements to ensure food safety. In spite of these recommendations made several years ago there remains today much need by developing countries for technical assistance and guidance to establish and/or strengthen national systems of food control so as to ensure proper and effective consumer protection and to facilitate food trade. Increased exports of high quality and safe foods from developing countries can and do bring urgently needed foreign exchange that can be successfully utilized to upgrade and improve the health of these countries.

IV. Recommendations

35. In view of the information provided, it is recognized that developing countries are very concerned about the health and welfare of their populations; that controlling the quality and safety of food is recognized as being very important; that developing countries can earn valuable foreign exchange through the export of high quality and safe foods; and that all means necessary must be taken to ensure the production, processing, distribution and sale of food is carried out in a manner necessary so that the consumer is protected and trade is enhanced. However, many developing countries are faced with many very serious problems including poverty, food insecurity, malnutrition, disease, and natural calamities, all of which make the competition for funding difficult and thus funds for controlling food quality and safety are in many instances inadequate. In addition, in many developing countries, personnel are lacking in expertise and facilities either are not existing or not plentiful enough.

36. Although developing countries fully support the Codex Alimentarius and recognize the necessity for participating in the work of Codex Alimentarius, there is a lack of available funds to permit such participation. In addition, consideration should be given to making the Codex Alimentarius more "user friendly" to developing countries.

37. It is recommended that: