G/SPS/GEN/1870  
27 November  2020 
(20-8583) Page: 1/3 
Committee on Sanitary and Phytosanitary Measures  Original:  Spanish  
 
  
RESTRIC TIONS ON EXPORTS OF CHOCOLATE AND COCOA PRODUCTS  DUE TO THE 
APPLICATION OF COMMISSION REGULATION  (EU) NO. 488/2014  OF 
12 MAY 2014 AMENDING REGULATION  (EC) NO. 1881/2006  AS 
REGARDS MAXIMUM LEVELS OF CADMIUM IN FOODSTUFFS  
COMMUNICA TION FROM  PERU 
The following communication, received on 26 Novemb er 2020, is being circulated at the request of 
the delegation of Peru. 
 
_______________  
 
 
1.  Peru would like to present  to WTO Members its trade concern with respect to Commission 
Regulation (EU) No. 488/2014 of 12 May 2014 amending Regulation (EC) No. 1881/2006 as regards 
maximum level s of cadmium in foodstuffs . In specific terms , the European Regulation establish es 
maximum levels for cadmium in chocolate and other cocoa products that, in practice , have an 
negative impact on trade in cocoa beans and cocoa . 
2.  Firstly, Peru believes  that the European Regulation  is inconsistent with  Article 2 of the 
SPS Agreement, as it is not based on scientific principles and constitute s a disguised restriction on 
trade.  Since there is no international standard on this  subject , the opinion of the Joint FAO/WHO 
Expert Committee on Food Additives (JECFA),  at its 77th meeting in 2013, which did not consider 
cadmium in cocoa to pose a risk to public health, should have been taken into account by the 
European Union when it developed its Regulation . It should be noted , however, that the justification 
for the European Regulation rests on earlier JECFA reports, and not the 2013 repor t.1 
3.  Furthermore , on the basis of the statements made by FAO on behalf of the JECFA Secretar iat at 
the 42nd Session of the Codex Alimentarius Commission in July  2019, Peru reminds WTO Members  
that dietary expos ure to cadmium in cocoa is insignificant compa red to other sources of dietary 
exposure  and does not amount to a public health concern .2 Moreover,  as stated at the same Codex 
meeting, it is not felt that new data could change the results previously presented by JECFA.  
4.  Secondly, while the European Union has indicated that its Regulation applies to chocolate and 
other cocoa products, it has also affected trade in cocoa beans, as these are the raw material s used 
to make chocolate and chocolate products . In this regard, the European Union should have taken 
into account the relevant economic factors , in accordance with Article 5.3 of the SPS Agreement . 
5.  In this respect , economic damage is being caused, given that European importers require 
producers to submit analyses of the cadmium in the ir beans, and lower their purchase prices without 
technical or regulatory justificat ion. Cadmium levels  for chocolate and cocoa products have become 
a point of negotiat ion for cocoa beans , even though they do not apply to these products.  
 
1 The full report of the 77th JECFA meeting  is available at: 
http://apps.who.int/iris/bitstream/10665/98388/1/9789241209830_eng.pdf . 
2 The full report of the 42nd Session of the Codex Alimentarius Commission is available at: 
http://www.fao.org/fao -who-codexalimentarius/sh -
proxy/en/?ln k=1&url=https%253A%252F%252Fworkspace.fao.org%252Fsites%252Fcodex%252FMeetings%2
52FCX -701-42%252FReport%252FREP19_CACe_Final.pdf . G/SPS/GEN/1870  
- 2 - 
  6.  Cocoa bean exports to the European Union fell by over 18% in 2019 compared to 2018.3 In this 
context, no less than 44% of Peruvian cocoa bean producers have been impacted by the European 
Union Regulation, particularly those from alternative development zones, such as San Martín, 
Huánuco, Ucayali and Junín, where 80% of Peru's cocoa is produced .4 
7.  In this regard, Peru  wishes  to underline that , due to the European Union Regulation, the farm 
gate price of cocoa in nine district s of the Amazonas region in Peru fell by over 10% in 2019 
compared to 2018.  Also, in the areas of Montero, Huarmaca, Las Lomas and Chulucanas in the 
Piura region , the price dr opped by between 24% and 31%. In this same context, in the districts of 
San Juan de la Virgen and Pampas de Hospital in the region of Tumbes, the price dropped by  23%; 
while in the district of  Calzada in the region of San Martín, prices fell by approximate ly 11%.5 It 
should be noted  that price reductions greater than 10% have an impact on the cocoa -based 
alternative development strategy , since they cause the profitability of cocoa to decline in relation to 
that of coca.6 
8.  Peru also wishes to refer to the specific case of the cooperatives in the north of the country, 
which highlights the trade impact of the Regulation , and the misuse of this Regulation by European 
buyers . Unlike in 2018, when  1,800 tonnes were collected , in 2019 only 800 tonnes were collected, 
400 tonnes of which remained warehoused.  This resulted in a loss of USD 200,000 for producers .7 
Cocoa from the north of the country, recognized internationally as high quality, has dropped 
significantly in value,  leading to an approximately 33% drop in the income of domestic producers 
and the loss of a number of customers for fine cocoa .8 The m embers of these cooperatives are very 
small -scale producers, with an average of one hectare, who rely on cocoa growing and marketing 
for their income and  family  livelihoods. The families of these producers are highly vulnerable  and 
live in conditions of po verty and extreme poverty . 
9.  European producers, without technical or regulatory justification, require these cooperatives to 
carry out a cadmium analysis on all batches of cocoa beans for export.  Analyses are carried out in 
Peru and also when the products r each their destination. Maximum level requirements range from 
0.7 to 0.8 ppm in the case of German buyers and up to 1.0 ppm for Dutch and French buyers .9 
10.  As regards cocoa powder, Peru's  exports to the EU fell by over 39% in 2019 compared to 2018.10 
With r espect to the category " sweetened cocoa powder sold to the final consumer " established  in 
Regulation (EU) No. 488/2014, Peru must point out  that this part of the Regulation is inconsistent 
from a final consumer  protection viewpoint . For instance, for a product "A" that is sold to final 
consumer s and contains 25% cocoa powder and 75% sugar , the maximum level to be applied  is 
0.6 ppm, while for a  product  "B" containing  75% cocoa powder and 25% sugar, the same maximum 
level of 0.6 ppm is also applicable . However, in each spoonful of product "B", the total cadmium 
content will be three times that of product  "A", and the final consumer  intake w ould therefore vary 
according to the product purchased . 
11.  The foregoing shows how the Regulation , as it relates to  cocoa powder , fails to  protect the final 
consumer  and instead misleads cocoa powder importers , creating unnecessary barriers to the export 
of this product . 
12.  It should be pointed out that nearly all the cocoa powder imported by the chocolate industry , 
including in Europe, is used as an in gredient  for chocolate confectionery  (confectionery with a 
 
3 Information based on data from the National Supervisory Authority for Customs and Tax 
Administration (SUNAT).  
4 Information produced by  the Peru Cocoa Alliance on cocoa bean production  in 2019 , and based on  the 
results of the study by the  Bioversity  International - CIAT Alliance on the presence of cadmium in cocoa bean s. 
Samples were taken from  1,800 trees on 250 farms througho ut the country . 
5 Ministry of Agriculture and Irrigation (MINAGRI) and Peruvian Association of Cocoa Producers 
(APPCACAO).  
6 Ministry of Agriculture and Irrigation (MINAGRI) (2019) . Report analysing  the trade effects , on the 
Peruvian exportable supply of cocoa and cocoa products , of the entry into force of Regulation ( EU) No. 
488/2014, which  establishes limits for cadmium in chocolate and cocoa products  (MINAGRI , Lima) . 
7 Trade i nformation based on data from the Peruvi an Association of Cocoa Producers (APPCACAO).  
8 Trade i nformation based on data from the Peruvian Association of Cocoa Producers (APPCACAO).  
9 Trade i nformation based on data from the Peruvian Association of Cocoa Producers (APPCACAO).  
10 Information based on data from the National Supervisory Authority for Customs and Tax 
Administration (SUNAT).  G/SPS/GEN/1870  
- 3 - 
  minimum cocoa content ), with a  smaller  amount  intended for final consum ption in the form of 100% 
cocoa powder.  However, in practice, making purchases on a differentiated basis  - in other words , 
import ing "cocoa powder for the final consumer" and "cocoa powder as an in gredient " separately  - 
is not possible for importing companies.  In this regard, chocolate companies impose a limit of 
0.6 ppm for cocoa powder imports, regardless of the ir end use . Given that most cocoa powder is 
used as an i ngredient  for chocolate confectionery , the limit of 0.6 ppm is technically baseless since, 
when such a product is mixed with other components , the level of cadmium contained in the end 
product is negligible and even less than that set out in the European Regulation . 
13.  In this respect, Peru would like to present the following case, in which European importers apply 
the same levels for all types of cocoa powder, even when not intended for direct consumption . A 
specific  Peruvian company exported approximately 100 and 140 tonnes of cocoa powder to the 
European Union in  2017 and 2018, respectively . However, due to the entry into force of the European 
Union Regulation , its exports were reduced to 40 ton nes in  2019, and currently it has only been able 
to export 25 ton nes. The European importer , in its purchase orders and technical data sheets , 
specifies a maximum level of 0.6 ppm , regardless of the end use of the cocoa powder. Maximum 
levels are also being used to reduce the purchase price by 20% .11 
14.  In light of  the above -mentioned  cases, Peru would like to ask the European Union what steps it 
has taken and what others it would take in order to prevent the misuse of the Regulation by its 
importers . 
15.  The trade implications are also clear from  the reduction in exports of conventional cocoa to the 
European Union and  the increase in exports to an Asian market at a lower price . For example, in 
2015, 67% of conventional cocoa beans were exported from Peru to the Netherlands, and only 1% 
to the Asian market  in question . In 2019, the opposite occurred , with 31% of cocoa e xported to the 
Netherlands and 40% purchased by the Asian market . This situation could at first be interpreted as 
a change in our export destinations; however, in 2019 , the alternative market paid approximately 
USD 120 less per tonne than the Netherlands .12 
16.  In the last five years, Peru has developed its processing process es for cocoa for export . Between 
2015 and 2019, the use of cocoa beans in the production of cocoa products increased by 21% a 
year. The largest increase occurred in the manufacture of cocoa butter : in 2015, more than 
18,000  tonnes of beans were used to manufacture approximately 7,000 tonnes of cocoa butter , 
while in 2019 , 41,000 tonnes of beans were used to manufacture 15,000 tonnes of  the product . The 
manufacture of more cocoa butter led to the increased  production of cocoa powder; however, the 
European Union Regulation has adversely impacted the export of cocoa powder, with inventories 
held for longer periods, thereby increasing finan cial costs and making  the industry  less profitable .13 
17.  Lastly , Peru wishes to point out  that the implementation of Commission Regulation  (EU) 
No. 488/2014 would preclude long-term results in cooperation projects financed by the European 
Union.  For example, as part of  the Alternative Development Programme, over 300 projects have 
been implemented in the areas of Pozuzo and Palcazú, requiring  a total investment of EUR 32 million, 
approximately 26 million of which were donated by the European Union. To maintain the results of 
these projects, it must be ensured that the price of cocoa is not  adversely  impacted ; otherwise,  as 
explained above, the immediate effects would be to make overcom ing poverty impossible due to 
lower earnings , and a possible  return to growing  illicit crops .14 
18.  In light of the above , Peru calls upon the European Union to rescind Commission Regulation 
(EU) No. 488/2014 , with respect to chocolate and other cocoa products , since it is inconsistent with 
Articles 2 and 5 of the WTO SPS Agreement and creates unnecessary barriers to trade . 
__________  
 
11 Trade information based on data from the Peruvian Export ers Association  (ADEX).  
12 Information based on data from the National Supervisory Authority for Customs an d Tax 
Administration (SUNAT) . 
13 Information based on data from the National Supervisory Authority for Customs and Tax 
Administration (SUNAT) . 
14 Ministr y of Agriculture and Irrigation  (MINAGRI) (2019) . Analysis of the impact of the entry into force 
of Regulation  (EU) No. 488/2014 on projects  that have been and are being  implemented with European 
technical cooperation in respect of the alternative development strategy promoting licit crop production as an 
alternative to  coca lea ves (MINAGRI , Lima) .