WT/DS540/1  
G/SPS/GEN/1608  
G/L/1212  
 
27 February 2018  
(18-1236) Page: 1/3 
  Original: English  
 
UNITED STATES – CERTAIN MEASURES CON CERNING PANGASIUS  
SEAFOOD PRODUCTS FRO M VIET NAM  
REQUEST FOR CONSULTA TIONS BY VIET NAM  
The following communication, dated 22 February 2018 , from the delegation of Viet Nam  to the 
delegation of the United States  and to the Chairperson of the Dispute Settlement Body, is 
circulated in accordance with Article  4.4 of the DSU.  
 
_______________  
 
 
Upon the request of my authorities, I hereby request consultations with the Government of the 
United States of America (the "United States ") pursuant to Articles 1 and 4 of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes  (the "DSU"), Article  11 of the 
Agreement on the Application of Sanitary and Phytosanitary Measures  (the "SPS Agreement "), and 
Article XXII of the General Agreement on Tariffs and Trade 1994  (the "GATT 1994 "), concerning 
certain measures enacted, adopted, implemented, and otherwise taken by the United States 
affecting the importation into the United States of the Pangasius seafood p roduct from Viet Nam, 
purportedly because of sanitary and phytosanitary concerns.  
Pangasius  is fish of the order Siluriformes, which includes two families of fish. One is the fish of the 
family Ictaluridae , which is found in North America, where it is prod uced by aquaculture and sold 
as "catfish. " The other is fish of the family Panagasiidae,  which is found mainly in Viet Nam and 
elsewhere in Southeast Asia. The Pangasius  fish of this second family in the order is sold as "basa" 
or as "tra" or "swai" and is the product at issue in this consultations request.  
Shipments of Pangasius  from Viet Nam to the United States have long been unfairly targeted for 
trade restrictions by United States producers of like products. These exports by Vietnamese 
producers  are now subject to laws, rules, administrative practices, and related actions of the 
United States that, without a sufficient scientific basis, are restricting the trade in this product, 
which is of substantial significance to the Vietnamese economy, and which also provides a 
substantial benefit to United States consumers as a healthy and affordable source of food and of 
protein.   
This request is made with respect to certain measures affecting the import, distribution, and sale 
of Vietnamese Pangasius  products in the United States, including but not limited to the following:  
Section 10016(b) of the Food, Conservation and Energy Act of 2008, Pub. L. 110 -246 (the "2008 
Farm Bill "), amending the Federal Meat Inspection Act, 21 USC 601 et seq (the "FMIA") to p rovide 
that "catfish, as defined by the Secretary " (of Agriculture) is an "amenable species " that is subject 
to the jurisdiction of, and thus to inspection by, the Food Safety Inspection Service ( "FSIS") in the 
United States Department of Agriculture ( "USDA"). 21 USC 601(w)(2).  
Section 12106 of the Agriculture Act of 2014, Public L. 113 -79 (the "2014 Farm Bill "), amending 
Section 1(w) of the FMIA to remove the phrase "catfish, as defined by the Secretary, " and replace 
it with "all fish of the order Silurifo rmes, " thus including these fish among the amenable species 
under FSIS jurisdiction and inspection. 21 USC 606 (a) and (b).  WT/DS540/1 • G/SPS/GEN/1608 • G/L/1212  
 
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  9 Code of Federal Regulations, Subchapter F, Chapter III, Parts 530 -551, "Mandatory Inspection of 
the Order Siluriformes  and Product s Derived from Such Fish " (80 Federal Register  75589) 
(December 2, 2015) (the "Final Rule "). 
The administrative applications of Section 10016(b) of the 2008 Farm Bill and Section 12106 of 
the 2014 Farm Bill as implemented by the Final Rule.  
9 Code of Feder al Regulations 541, "Marks, Marketing and Labeling of Products and Containers " 
(respecting fish and fish products), incorporating requirements in 9 Code of Federal Regulations 
317, "Labeling, Marking Devices, and Containers. " 
The administrative application s of 9 Code of Federal Regulations 541, including but not limited to 
those requirements incorporated from 9 Code of Federal Regulations 317.  
These measures appear to be inconsistent with the obligations of the United States under the 
GATT 1994 and the SPS Agreement, including but not limited to the following provisions:  
(i) Article 2.2 of the SPS Agreement.  
The United States appears to have acted inconsistently with its obligations in Article 2.2 of the SPS 
Agreement to apply these measures "only to the extent necessary " for health protection and to 
ensure that its measures are "based on scientific principles " and are "not maintained without 
sufficient scientific evidence. " There appear to be viola tions of Article 2.2 of the SPS  Agreement as 
such and as applied.  
(ii) Article 2.3, first sentence, of the SPS Agreement.  
The United States appears to have acted inconsistently with its obligation in Article 2.3, first 
sentence, of the SPS Agreement to ensure that these measures do not result in "arbitrary " or 
"unjustifiable " discrimination. There appear to be violations of Article 2.3, first sentence, of the 
SPS Agreement as such and applied.  
(iii) Article 2.3, second sentence, of the SPS Agreement.  
The United States appears to have acted inconsistently with its obligation in Arti cle 2.3, second 
sentence, of the SPS Agreement by applying these measures in a way that constitutes a "disguised 
restriction on international trade. " There appear to be violations of Article 2.3, second sentence, of 
the SPS Agreement as such and as applied . 
(iv) Article 4.1 of the SPS Agreement.  
In the application of these measures, the United States appears to have acted inconsistently with 
its obligation in Article 4.1 of the SPS Agreement by not acc epting the SPS measures of Viet  Nam 
as equivalent even though  Viet Nam has "objectively demonstrated " that its measures achieve the 
appropriate level of SPS protection established by the United States.  
(v) Article 5.1 of the SPS Agreement.  
The United States appears to have acted inconsistently with its obligation under Article 5.1 of the 
SPS Agreement to base these measures on a risk assessment. There appear to be violations of 
Article 5.1 of the SPS Agreement as such and as applied.  
(vi) Article 5.3 of the SPS Agreement.  
In these measures, the United States appears to have a cted inconsistently with its obligation 
under Article 5.3 of the SPS Agreement to "take into account " as a relevant economic factor "the 
relative cost -effectiveness of alternative approaches to limiting risks. " 
(vii) Article 5.6 and footnote 3 of the SPS Agreeme nt. 
The United States appears to have acted inconsistently with its obligation under Article 5.6 and 
footnote 3 of the SPS Agreement because these measures are more trade -restrictive than required WT/DS540/1 • G/SPS/GEN/1608 • G/L/1212  
 
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  to achieve its appropriate level of protection, taking into  account technical and economic 
feasibility. There appear to be violations of Article 5.6 and footnote 3 of the SPS Agreement as 
such and as applied.  
(viii)   Article 8 and Annex (C)(1)(a) of the SPS Agreement.  
In its application of these measures, the United Stat es appears to have acted inconsistently with 
its obligations in Article 8 and Annex C(1)(a) of the SPS Agreement because it has not completed 
its control, inspection, and approval procedures without "undue delay. " 
(ix) Article I:1 of the GATT 1994.  
In its appli cation of these measures, the United States appears to have acted inconsistently with 
its obligation in Article I:1 of the GATT 1994 because the rules and formalities of those measures 
grant an advantage to the products of other WTO Members immediately and  unconditionally that is 
not granted to like products of Viet Nam.  
(x) Article XI:1 of the GATT 1994.  
The United States appears to have acted inconsistently with its obligation under Article XI:1 of the 
GATT 1994 because these measures have imposed a "restrict ion" on imports. There appear to be 
violations of Article XI:1 of the GATT 1994 as such and as applied.  
This request for consultations relates to the United States measures as described in this request 
and to any amendments, supplements, extensions, repla cements, renewals, implementations, and 
other changes of any kind in these measures, as well as to any and all actions taken pursuant or 
relating to these measures, including but not limited to any such measures referred to by either 
party during the consu ltations resulting from this request.  
Viet Nam reserves the right to raise additional facts and legal claims under other provisions of the 
covered agreements relating to this matter during the course of the consultations.  
Viet Nam looks forward to receivin g the reply of the United States to this request and to fixing a 
mutually convenient date for consultations. Viet Nam welcomes the suggestions of the United 
States as to the time and place of these consultations.  
 
 
__________