WORLD TRADE  
ORGANIZATION  G/SPS/W/186 
20 March 2006 
 
 (06-1236) 
Committee on Sanitary a nd Phytosanitary Measures Original:   English 
  
 
SECOND REVIEW OF THE OPER ATION AND IMPLEMENTATION 
OF THE AGREEMENT ON THE APPLICATION OF SANITARY 
AND PHYTOSANITARY MEASURES 
 
Clarification of the Terms "Measures" and "Regulations" 
 
as contained in the SPS Agreement  
 
Submission by Canada 
 
 
 The following communication, received on 17 Marc h 2006, is being circulated at the request 
of the Delegation of Canada.  
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 I. INTRODUCTION 
1. The transparency provisions of the Agre ement on the Application of Sanitary and 
Phytosanitary Measures (the SPS Agreement) are a co rnerstone to the effective implementation of the 
SPS Agreement.  These provisions can facilitat e Members in attaining a greater degree of 
predictability and clarity with respect to the adop tion of sanitary and phytosanitary (SPS) measures by 
trading partners. 
2. Clarification of the definition of terms was identified as a priority in the Second Review of 
the Operation and Implementation of  the Agreement on the Application of Sanitary and Phytosanitary 
Measures (G/SPS/36).  As part of the Work Progra mme for the Committee, Members agreed that the 
Committee should consider clarification of the term s "measures" and "regulations" as contained in the 
SPS Agreement.  It is in this contex t that Canada submits this paper. 
II. DEFINITION OF TERMS 
3. The Preamble, Article 1 (General Provisions ), Article 7 (Transparency), and Annex A 
(Definitions) of the SPS Agreement all utilize the term "measures".  Article 1 states: 
[t]his Agreement applies to all sanitary and phytosanitary measures 
which may, directly or indirectly, affect international trade. Such 
measures shall be developed and applied in accordance with the 
provisions of this Agreement. 
4. Article 7 obliges Members to "notify changes in  their sanitary or phytosanitary measures and 
... provide information on their sanitary or phytosan itary measures in accordance with the provisions 
of Annex B." G/SPS/W/186 
Page 2  
 
  5. Annex A defines a sanitary or phytosanitary measure to include: 
all relevant laws, decrees, regula tions, requirements and procedures 
including, inter alia , end product criteria;  processes and production 
methods;  testing, inspection, certif ication and approval procedures;  
quarantine treatments including rele vant requirements associated 
with the transport of animals or plants, or with the materials 
necessary for their survival during transport;  provisions on relevant statistical methods, sampling procedures and methods of risk assessment;  and packaging and labelling requirements directly 
related to food safety. 
6. In comparison, Annex B (Transparency of San itary and Phytosanitary Regulations) of the 
SPS Agreement refers only to regula tions in its title and throughout the text.  Annex B, paragraph 1 
states:  "Members shall ensure that all sanitary and phytosanitary regulations
5 which have been 
adopted are published promptly ...".  The footnote in  Annex B, paragraph 1, qualifies regulations as 
"[s]anitary and phytosanitary measures such as la ws, decrees or ordinances which are applicable 
generally". 
7. Annex B, paragraph 2 states:  "[e]xcept in urgent circumstances, Members shall allow a 
reasonable interval between the publication of a sanita ry or phytosanitary regulation and its entry into 
force ...".  Annex B, paragraph 3 (Enquiry Points ), paragraph 5 (Notification Procedures), and 
paragraph 6 each refer only to regulations, not measures. 
8. The 2002 Recommended Procedures for Implementing the Transparency Obligations of the 
SPS Agreement (G/SPS/7/Rev.2) outlines steps Memb ers should follow to improve transparency of 
SPS regulations.  However, a footnote immediately foll owing the first reference to "regulation" states: 
[t]he SPS Agreement uses the terms 'measures' and 'regulations' 
somewhat interchangeably when referring to any sanitary or phytosanitary measure such as laws, decrees, or ordinances applied to 
protect human, animal or plant life or health as defined under 
paragraph 1 of Annex A to the SPS Agreement. 
9. Despite this reference to the apparent interc hangeability in the use of the terms "measures" 
and "regulations", the distinction seen in the SPS Agreement, in particular between Article 7 and 
Annex B, may generate a degree of uncertainty rega rding Members' obligations with respect to the 
transparency provisions of the Agreement.  This unc ertainty leads to Members failing to notify certain 
measures simply because they are not considered "regulations". 
III. JURISPRUDENCE AND THE TRANSPARENCY OF SPS MEASURES 
10. With reference to the footnote in Annex B, paragraph 1, the Appellate Body in Japan – 
Agricultural Products II  ruled that the list of instruments contained in the footnote was not exhaustive 
in nature and that: 
[t]he scope of application of the publication requirement is not 
limited to 'laws, decrees or ordi nances', but also includes, in our 
opinion, other instruments which are applicable generally and are  G/SPS/W/186 
 Page 3 
 
 
  similar in character to the instruments explicitly referred to in the 
illustrative list of the footnote to paragraph 1 of Annex B.1 
11. Measures to protect human, animal or plant life or health may have a significant effect on 
trade of other Members.  It is for this reason that , under the SPS Agreement, notifications are used to 
inform other Members about new or changed regula tions that may significantly affect their trading 
partners.  It is logical, therefore, that the Appellate Body, in Japan - Agricultural Products II , 
focussed more on "applicability" than on "nature or  type" when considering which sanitary or 
phytosanitary measures should be considered as regul ations for the purposes of transparency.  It is 
important for all SPS measures that are applicable  generally to be notified to the World Trade 
Organization. 
IV. WAY FORWARD 
12. The transparency obligations are the cornerstone  of the SPS Agreement, ensuring that there is 
clarity, predictability, and access to  information about measures developed to protect human, animal 
or plant life or health.  Despite the existence of juri sprudence in the form of an Appellate Body report, 
Canada sees significant benefit in a decision by the Committee to further clarify this issue, in the 
context of the current Review of the SPS Agre ement.  Such a Committee decision would recognize 
that, when referring to "regulations" in Annex B, th e intent of the Agreement is to include measures 
that are applicable generally and may have a significant effect on trade of other Members. 
 
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1 Appellate Body Report on Japan – Agricultural Products II , paras. 105-107.