G/SPS/W/301  
 
6 June 2018  
(18-3472) Page: 1/3 
Committee on Sanitary and Phytosanitary Measures  Original: English  
 
 
SANITARY & PHYTOSANI TARY (SPS) MEASURES:  DISCUSSION PAPER FRO M BRAZIL  
FIFTH REVIEW  
Submission from Brazil  
The following communication, received on 5 June 2018, is being circulated at the request of the 
Delegation of Brazil . 
 
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On the occasion of the Fifth Review of the Agreement on the Application of Sanitary and 
Phytosanitary Measures (SPS) Brazil would like to promote the discussion of some topics 
previously addressed in the Special Session of the Committee on Agriculture (RD/ AG/57). Based 
on Members ' reactions to this paper, Brazil will consider possible next steps.  
1  BACKGROUND  
1.1.  Regulatory issues have been increasingly highlighted as a key element of the international 
trade architecture. The SPS Agreement provides a solid base f or the treatment of regulatory issues 
in the area of trade in agricultural products, but it is necessary to reinforce its features to ensure 
the attainment of its objectives.  
1.2.  The core element of the SPS Agreement is the science -based approach. This approac h needs 
to be reinforced, in a clear and precise way, so that SPS measures are not applied in a manner 
which would constitute an arbitrary and unjustifiable discrimination or a disguised restriction on 
international trade. SPS measures without sufficient r isk-based scientific evidence should not be 
maintained by Members.  
1.3.  By bridging differences, the SPS Committee has been capable to deliver on relevant issues 
over the past two decades, and this has contributed significantly to the implementation of the 
SPS Agreement. However, the Committee has been facing challenging scenarios in the past few 
years, as illustrated by the difficulties to adopt the Fourth Review of the Agreement ( G/SPS/62 ), 
which was scheduled to be concluded in October 2014, and to move forward since July 2015 on 
the Catalogue of Instruments ( G/SPS/63 ), finally adopted in March 2018.  
1.4.  Taking into account the need to maintain the balance between the right to protect human, 
animal or plant life or health, and the need to minimize the negativ e effects on trade of SPS 
measures, the following issues are presented for discussion, with a view to contributing to possible 
concrete results:  
2  SCIENTIFIC JUSTIFICA TION (ARTICLE 2.2) A ND RISK ASSESSMENT  
2.1.  The link between the obligation to base SPS measures  on science, contained in Article 2.2 of 
the SPS Agreement, and the more specific obligation to "ensure that SPS measures are based on 
an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or 
health", contained in Article 5.1, has been recognized by the Dispute Settlement Body in a number 
of cases (EC -Hormones, US/Canada -Continued Suspension, E C-Biotech, Australia -Salmon, 
US-Poultry). Article 2.2, under the title "Basic Rights and Obligations", is the light under wh ich to G/SPS/W/301  
 
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  read the other provisions of the Agreement , and risk assessment under 5.1 has unmistakably to be 
conducted following this overarching principle and is the means by which scientific justification is 
attained.  
2.2.  A clear reaffirmation of this would stren gthen the scientific basis of the SPS Agreement, 
thereby limiting the use of SPS measures as an arbitrary and unjustifiable discrimination or a 
disguised restriction on international trade.  
3  EQUIVALENCE (ARTICLE  4) 
3.1.  Article 4.2 gives a clear -cut message rega rding Members' obligation to "enter into 
consultations with the aim of achieving bilateral and multilateral agreements on recognition of the 
equivalence of specified sanitary or phytosanitary measures". However, this obligation is seldom 
implemented and, a ccording to the SPS Information Management System, only two notifications of 
recognition of equivalence have been submitted since the adoption of the Decision on the 
Implementation of Article 4 (Equivalence) of the SPS Agreement (G/SPS/19/Rev.2).  
3.2.  To improv e the implementation of Article 4, Members should recognize the importance of the 
Decision (G/SPS/19/Rev.2), commit to follow its provisions and reinforce the commitment of their 
countries to enter into consultations when requested, following Article 4.2 a nd the procedures 
described in the Decision itself.  
4  ASSESSMENT OF RISK A ND DETERMINATION OF THE APPROPRIATE LEVE L OF 
SANITARY OR PHYTOSAN ITARY PROTECTION (AR TICLE 5)  
4.1.  Science must be the foundation of SPS measures. Establishing science -based SPS measures 
is of paramount importance to the proper functioning of the multilateral trading system. 
Nevertheless, the increase of SPS measures that are not based on international standards, 
guidelines and recommendations or that have inadequate scientific justification  is a point of 
concern raised by many Members in the SPS Committee and other contexts 
(G/SPS/GEN/1143/Rev.2). These measures often unduly restrict trade and seem to be associated 
with objectives that are not legitimate under international trade rules.  
4.2.  Article 5 is one of the main pillars of the SPS Agreement. The SPS Agreement requires 
Members to base their measures on risk assessment, a scientifically based process, consisting of 
(i) hazard identification, (ii) hazard characterization, (iii) exposure asses sment, and (iv) risk 
characterization, and distinct from "risk management", according to the Codex Alimentarius 
Procedural Manual. Members could discuss guidelines to ensure that the factors to be taken into 
account on risk assessment, as provided for in A rticles 5.2 and 5.3, are appraised in ways 
supported by scientific evidence and methods. In addition, although Members may base an SPS 
measure on divergent or minority views, when there is scientific critical mass on a certain subject, 
these opinions shoul d only be accepted as the basis of SPS measures if they are from respected 
and qualified sources and have the necessary scientific and methodological rigour.  
4.3.  Concerning Article 5.7, conflicting jurisprudence recommends an effort to arrive at a common 
understanding about its function as a derogation to the obligation of following scientific evidence in 
the formulation of SPS measures. Members could discuss ways to avoid abuse of its use, for 
instance by: (i) agreeing that notification of corresponding p rovisional measures specify that they 
are taken under Article 5.7, with the opportunity for the adopting Member to state its views on the 
insufficiency of scientific evidence in relation to the issue that gave origin to the measure; 
(ii) defining the proce dural steps necessary, given the impossibility, in this case, of establishing a 
proper risk assessment, and reaffirming that applicable principles of Article 5, such as provided for 
in 5.4 and 5.6, for example, remain valid; (iii) agreeing that, as a dero gation to the general rule, 
it is up to the Member invoking Article 5.7 to present the evidence that scientific knowledge is 
insufficient in relation to the matter at stake, that the measure is based upon available 
information, and that the Member has sough t additional information and reviewed the measure 
accordingly within a reasonable period of time.  G/SPS/W/301  
 
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  5  REGIONALIZATION (ART ICLE 6)  
5.1.  The effective implementation of Article 6 is currently limited by several issues, such as:  
 The substantial investments needed to a chieve and maintain the status of pest or disease 
free areas, or areas of low pest or disease prevalence (particularly for developing 
countries);  
 The different requirements adopted by the competent international organizations 
(particularly OIE) and importi ng Members.  
5.2.  Achieving international recognition may not facilitate trade if Members do not accept a pest 
or disease status recognized by the pertinent international organizations. To help resolve these 
challenges, Members could consider the option of autom atically recognizing a disease status 
granted by the OIE. Similar recognition by the IPPC should be encouraged. Recent jurisprudence 
on the issue ("Russia -Pigs") recognizes the key role the Agreement attributes to international 
organizations on the matter.  
5.3.  The automatic recognition of the OIE's (and eventually the IPPC's) status would not require 
any modification of the SPS Agreement, since such a provision can be considered as covered by 
Articles 6 and 3.2. To avoid any doubt in interpretation, Members cou ld collectively declare that 
they accept a status recognition by the relevant international organization as an objective 
demonstration under 6.3 . 
 
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