. /.   WORLD TRADE  
ORGANIZATION  G/SPS/GEN/884 
21 October 2008 
 
 (08-5054) 
Committee on Sanitary a nd Phytosanitary Measures Original:   Spanish 
  
 
EUROPEAN COMMUNITIE S REGULATION 258/97 
CONCERNING NOVEL FOODS 
 
Statement by Peru at the Meeting of the Committee
 
Held on 8 and 9 October 2008  
 
  The following communication, received on 17 Octo ber 2008, is being circulated at the request 
of the delegation of Peru
. 
 
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 1. My delegation would like to take  this opportunity to examine, under the current agenda item, 
an issue which has already been raised on other o ccasions, one which is a source of concern for Peru 
and other countries of the Andean region and which has been under discussion for at least three years 
in this Committee:  namely, Regulation 258/97 of  the European Commission concerning so-called 
"novel foods". 
2. Peru's intention in addressing this agenda item is to ask the European Communities for further 
clarification concerning the ongoing review of the Regulation at issue.  The European Communities 
has already provided us with information in th is respect on other occasi ons, for which we duly 
expressed our thanks and appreciation.  However, we understand that a decisive stage has now been 
reached in the process of reviewing Regulation 258/ 97, and we think that it is essential that the 
European Communities update their information and pr ovide a status report on its legislation, for the 
benefit of my delegation and of ot her delegations that are or could be affected by this regulation. 
3. At the same time, we would like to raise a few new arguments in connection with the study of 
certain specific cases involving Regulation 258/97, cases which in our view could justify notification 
thereof in this Committee while at the same time sh edding light on how its a pplication concretely and 
directly affects specific trade interests. 
4. For Peru, it is in the application of the Regul ation that a number of infringements of the 
Agreement on the Application of  Sanitary and Phytosanitary Measures (SPS Agreement) have 
occurred, so that it should first have been notifie d to this Committee, before being notified to the 
Committee on Technical Barriers to Trade, which in any case was done only recently. 
5. Thus, my delegation learned of a recent case study relating to the Nangai nut, which was 
denied entry to the European mark et in 2000 without notification to this Committee, a fact which in 
itself would appear to violate Article 7 of the SPS Agreement on transparency.  But there has been no 
revision of this decision since, so that a "provi sional" measure has de facto become a permanent 
measure without meeting the conditions set fo rth in Article 5.7 of the SPS Agreement. 
6. Although we can only sympathize with a developing country that has to face such barriers in 
marketing this nut, we note that it is not a product of  direct interest to our delegation.  However, we G/SPS/GEN/884 
Page 2  
 
  think that this is a case that could help to sh ed light on how the application of the Novel Foods 
Regulation violates several articles of the SPS Ag reement, including Article 5.5, by establishing 
"arbitrary or unjustifiable distinctions".  Let me elaborate. 
7. In the specific case of the Nangai nut, this pr oduct cannot enter the European market, while 
other types of nuts can enter subject to specific labe lling requirements.  This, in itself, is already a 
form of discrimination.  It would appear that u ltimately, these distinctions, which should be based on 
scientific criteria, are in fact based on commercial cr iteria, since in this instance a request by a single 
country – probably with trade interests rather th an sanitary interests – for additional assurances under 
the Novel Foods Regulation was all th at was needed to trigger a request  for information that it would 
be difficult to obtain, and this, in practice, has been prohibitive for the exporters of Nangai nuts. 
8. Of even greater concern is the fact that in this instance, the measu re has ultimately been 
imposed not because the product – in this case the nut  – is dangerous, but because the applicant is 
unable to demonstrate its safety under this Regulat ion.  This switching of the burden of proof is 
contrary to the spirit of the SPS Agreement, which requires that any sanitary or phytosanitary measure 
be based on scientific criteria or a risk assessment , and not on an inability to demonstrate that a 
product is not safe.  This is of even more conc ern for countries like Peru and other developing 
countries, which end up shouldering the burden – in terms of both material and human resources – of 
demonstrating the safety of a product, with all of the problems that this involves. 
9. Peru could face a similar situation when it co mes to marketing Yacon, a Peruvian product 
used as a food supplement which has anti-diabetic  and skin rejuvenating qualities, reducing the 
glucose content in blood. 
10. Another factor I would like to mention – specifically in relation to Peru – is the lack of 
predictability and the mistrust caused by the a pplication of this Nove l Foods Regulation which 
seriously restricts and discriminates against expo rts of traditional products deriving from the 
biodiversity of the Peruvian coast or Amazon.  For example, producers of fruit with a long history of safe consumption such as Camu Camu, one of the most important sources of vitamin C and widely 
consumed in Japan, are denied the confidence of  European importers because their product is 
considered to be a novel food (i.e. not marketed in  Europe prior to May 1997) and the prospect of 
being subjected to this disputed legisla tion and having to produce documents and undergo 
burdensome examinations hangs over them like th e sword of Damocles and precludes any possibility 
of trade. 
11. Even more surprising and paradoxical is the fact that these very products are supported by the 
biotrade initiatives financed in our countries by certain noteworthy members of the European Union 
such as the Netherlands.  All of these efforts to co operate in development and market research, the 
training of small and medium agro-exporters, qualit y control, process management and contacts with 
potential importers of traditional products derived from biodiversity could be reduced to nothing when 
it comes to entering the Eu ropean customs territory. 
12. We therefore call upon the European Commissi on to notify the Committee on Sanitary and 
Phytosanitary Measures of its proposed amendment to the Regulation as rapidly as possible.  Only 
then will we be able to monitor closely the evolutio n of the planned revision of this legislation.  We 
are concerned by the European Parliament's possible course of action with respect to this legislation. 
13. Last but not least, it is essential that we should know how the European Union would apply 
the special and differential treatment provided fo r in the SPS Agreement to the benefit of the 
developing countries as regards this legislation. 
 
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