G/SPS/GEN/1656  
 
16 October 2018 
(18-6452) Page: 1/3 
Committee on Sanitary and Phytosanitary Measures  Original: English  
 
THE CODEX ALIMENTARIUS COMMISSION:  
THE PROBLEM OF WTO C ONSIDERATIONS INFLUE NCING CODEX DECISION -MAKING  
SUBMISSION BY THE UN ITED STATES OF AMERI CA 
The follow ing communication, received on 10 October 2018, is being circulated at the request of the 
Delegation of the United States of America . 
 
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1  INTRODUCTION  
1.1.  The United States has noted its concerns with certain activities of the Codex Alimentarius 
Commission apparently related to the intersec tion of Codex standards and the WTO SPS Agreement.  
Below, we elaborate on certain of these concerns, with the aim of promoting greater awareness 
among WTO Members of their potential implications.  
2  BACKGROUND  
2.1.  At the July 2018 meeting of the SPS Committee, th e Codex secretariat reported on the decision 
of the Chairperson of the Codex Committee on Residues of Veterinary Drugs in Foods (CCRVDF) not 
to move the MRL for the veterinary drug Zilpaterol to Step 5, despite consensus on the science and 
the safety of th is veterinary drug.  The CCRVDF Chairperson cited a lack of consensus on moving the 
MRL due to factors outside the mandate of Codex.  During the Codex secretariat 's report to the July 
2018 SPS meeting, the Codex secretariat representative indicated that the real concern among some 
Codex Members may have to do with the status of Codex standards relative to the WTO SPS 
Agreement.  
2.2.  The Codex secretariat further suggested that Codex standards being referenced in the SPS 
Agreement has been negatively influencing di scussions in Codex due to some Members ' fears that 
they could be challenged at the WTO with respect to failure to adopt specific Codex standards.  
Finally, the Codex secretariat reported that the Legal Offices of the World Health Organization and 
the Food a nd Agriculture Organization, the Chairperson and Vice Chairs of Codex, and the Codex 
secretariat are preparing a report on issues related to the periodic blocking of standards in Codex to 
be discussed at next year 's Codex Executive Committee (CCEXEC) and n ext year 's Codex 
Alimentariu s Commission.1 
3  SUMMARY  
3.1.  In the view of the United States, two significant concerns arise from these developments:  
 First, we are concerned that statements of legal interpretation concerning the SPS 
Agreement and its implications m ay be included in the planned report.  Legal interpretation 
of WTO Agreements falls outside of the mandate of the Codex secretariat as well as the 
other entities involved in drafting the report.  The expertise of Codex is food safety not WTO 
obligations. The  United States is concerned about the implication that consequences of 
Codex standards, guidelines, and recommendations under the WTO Agreements should h ave 
bearing on Codex activities;  
                                                
1 See G/SPS/92/Rev.1, section 3.2.2.  G/SPS/GEN/1656  
 
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   Second, the decision with respect to Zilpaterol, noted above, represen ts an example of 
decision -making based on an inappropriate consideration: potential WTO vulnerabilities.  
Codex basing decisions regarding MRLs, or other food safety standards, guidelines, or 
recommendations, on considerations outside of Codex 's mandate – particularly on the 
potential WTO implications of those decisions – continues to be a significant source of 
concern.  This is not the first time that such considerations have delayed important actions 
with respect to MRLs, a concern we have raised  in this Committee previously.2 
4  THE PLANNED REPORT T O CCEXEC  
4.1.  The United States supports the unique dual mandate of Codex: to protect the health of 
consumers and ensure fair practices in the food trade. The procedural and scientific foundation of 
Codex help s ensure that the international standards developed in Codex are science -based, globally 
relevant, fit for purpose and reflect current best practices in countries around the world.  
4.2.  The credibility and reliability of Codex, however, rests on Codex operating within its mandate, 
and taking decisions on the basis of considerations within its mandate.  Clearly, opining on the WTO 
covered agreements, including on the implications of Codex M RLs or other food safety standards, 
guidelines, or recommendations under those agreements, is outside th e mandate of Codex.  
4.3.  The United States was accordingly concerned to hear that a report on WTO implications of 
Codex standards is being prepared by the Co dex secretariat , along with the WHO and FAO legal 
offices and the Codex Chair person  and Vice -Chairperson . The planed report appears structured in a 
way that is likely to involve the drafting e ntities in such interpretation.  
4.4.  Neither Codex nor the other draf ting entities have the authority or the expertise to do a legal 
analysis of WTO implications.  As discussed below, decisions of the Codex Alimentarius Commission 
must be grounded in the Codex Procedural Manual , not driven by their WTO implications.  
4.5.  Based on  the information now available, the planned report appears aimed at setting up 
discussion in Codex concerning the WTO implications of Codex decisions.  While the United States 
would welcome discussion in Codex about how to prevent WTO implications from infl uencing Codex 
decisions, the appropriate forum for any exploration of the WTO implications of Codex decisions – 
including their implications under the WTO SPS Agreement – is the WTO.  
5  INTRUSION OF WTO CON SIDERATIONS IN THE C ODEX MRL ESTABLISHME NT PROCESS  
5.1.  Scientific support is crucial in the context of Codex decision -making on MRLs.  Basing MRLs on 
science protects consumer health and provides a level playing field for all countries.  
5.2.  A core obligation of the SPS Agreement is for Members to ensure that their SP S measures are 
"based on scientific principles and … not maintained without sufficient scientific evidence. " 
(Article  2.2). Closely related to this obligation, Article 5.1 of the SPS Agreement provides that 
Members shall "ensure that their sanitary or phyt osanitary measures are based on an assessment, 
as appropriate to the circumstances, of the risks to human, animal or plant life or health. " 
5.3.  Harmonization based on international standards, guidelines, and recommendations can be an 
important tool for achievi ng these objectives, particularly for Members that lack resources to perform 
a significant volume of their own risk assessments.  The Agreement implicitly recognizes the role of 
international standards, guidelines, and recommendations with respect to scient ific justification and 
risk assessment by providing that SPS "measures which conform to international standards, 
guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant 
life or health, and presumed to be consistent w ith the relevant provisions of this Agreement and of 
GATT 1994. " (Article  3.2). 
5.4.  Codex establishment of MRLs on the basis of considerations outside its mandate runs contrary 
to the assumptions underpinning the SPS Agreement and potentially undermines the va lue of those 
MRLs.  
                                                
2 See G/SPS/R/90 section 4.5.1.1.  G/SPS/GEN/1656  
 
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  5.5.  The United States is particularly concerned about Codex allowing WTO implications of MRLs to 
drive its decision -making about whether, or at what levels, to set MRLs.  
5.6.  The reliability of Codex decisions rests on their grounding in criteria  outlined in the Codex 
Procedural Man ual, and in not being driven by  countries seeking to influence WTO outcomes to favor 
their country or region.  
5.7.  Members may lose confidence in Codex standards if they perceive that those standards are 
designed to achieve particular WTO outcomes, instead of being promulgated witho ut regard to WTO 
implications. We want to avoid further situations where th e WTO 'tail' wags the Codex 'dog'. 
5.8.  Loss of confidence in Codex would be damaging to countries at various development levels that 
may lack resources to set up and maintain complex food safety risk assessment program mes and 
that rely on Codex MRLs as a means of ensuring health of domestic consumers while at the same 
time satisfying their ob ligations to trading partners.  
6  CONCLUSION  
6.1.  To the extent WTO Members feel that there is a need for examination of the WTO implications 
of Codex standards, guidelines, and recommendations concerning food safety, we invite Members 
to initiate discussions in the WTO SPS Committee.  
6.2.  We encourag e WTO Members to clarify in the context of Codex discussions and meetings that 
Codex should not be opining on WTO legal matters, and should remain laser -focused on establishing 
food safety standards, guidelines, and recommendations based on conside rations within Codex 's 
mandate.  
 
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