WORLD TRADE
ORGANIZATIONG/SPS/GEN/331
19 June 2002
(02-3409)
Committee on Sanitary and Phytosanitary Measures Original:  English
EQUIVALENCE:  INTERPRETATION OF PARAGRAPHS 5, 6 AND 7 OF
DECISION G/SPS/19 ON THE IMPLEMENTATION OF ARTICLE 4
OF THE AGREEMENT ON THE APPLICATION OF SANITARY
AND PHYTOSANITARY MEASURES
Submission by Australia
I. INTRODUCTION
1. This communication reflects and supplements comments made by the Australian delegation in
previous informal discussions on paragraphs 5 and 6 of the Decision G/SPS/19, and provides some
additional comments as a contribution to the preliminary discussion of paragraph 7.
II. COMMENTS ON PARAGRAPH 5
2. Paragraph 5 states that the importing Member should accelerate its procedure for determining
equivalence in respect of those products which it has historically imported from the exporting
Member.  In determining how information based on historic trade can be used to acceleratedetermination of equivalence, the concept of equivalence must be clearly distinguished from
conformity with the requirements of an importing country.  In the debate on implementation of
Article 4, these two concepts have at times been confused.
3. The term "equivalence" has sometimes been used in bilateral discussions to apply to
situations where exporting countries are endeavouring to conform with  (rather than present alternative
means of achieving) the stated sanitary or phytosanitary requirements of an importing country.  It
would be better to describe these situations as conformity determinations .  Article 4 of the SPS
Agreement is not intended to apply to conformity determinations.
4. The concept of equivalence in the SPS Agreement only applies to situations where an
exporting country wants to use means to achieve the ALOP of an importing country which are
different from  the means used by the importing country itself and/or are different from  the means
specified in the importing country’s requirements applicable to imports.  A typical example would bewhere an importing country has a requirement that cheese can only be sold if it is made from
pasteurised milk but an exporting country believes (and can demonstrate) that it can supply cheese
made from unpasteurized milk that presents no greater health risk to consumers in the importing
country.
5. If there is existing trade, and the practices of the exporting country conform with the
requirements of the importing country, there is no need for an equivalence determination.  Of course
an importing country will wish to validate from tim e to time that its requirements are being met and
this (which is not an equivalence determination) could be called a conformity validation .  Similarly,
where trade in a product is being established, or re-established, and the exporting country is not
proposing to use measures different from those specified by or used by the importing country, theissue under consideration is once again conformity determination rather than equivalence.G/SPS/GEN/331
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6. In a situation where there was in fact conformity but the exporter wanted to change the way it
went about meeting the ALOP of the importer, the history of previous trade might be relevant in
whole, in part or not at all.  Whether there were  a possibility for fast-tracking would depend upon the
particular circumstances.  For example, trade in a certain commodity may have taken place between
two countries over a number of years without significant problems arising; and the certification of theproduct provided by the competent authority of the exporting country would therefore be judged to be
reliable.  If the exporting Member were then to seek an equivalence determination as an alternative to
having to align its measures precisely with the importer's, it would be appropriate for the importing
Member to take into account the history of satisfactory certification by the authority of the exporting
country and therefore not seek to evaluate the competence of that authority again for this particular
purpose.  On the other hand, if the measures proposed by the exporting country as equivalent included
new techniques of achieving food safety outcomes (for example, a testing procedure to be substitutedfor a sterilisation process) the history of previous trade would be irrelevant to that part of the
equivalence determination.
III. COMMENTS ON PARAGRAPH 6
7. Paragraph 6 says that a request for recognition of equivalence shall not be used by an
importing country as a reason to disrupt or suspend on-going imports of a product from the Memberthat made the request.
8. This point should not create any difficulties.  The making of a request in no way changes the
objective circumstances of an on-going trade.  Since the way in which trade is going on is not changed
there is no justification for disruption or suspension of trade.  Indeed an importing country that
decided to restrict trade only on the basis that it had received a request for an equivalencedetermination would almost certainly violate other obligations under the SPS Agreement (e.g. under
Articles 2, 3 and/or 5).
9. One matter that may require clarification is the need to avoid the perception of a causative
linkage between submission of a request for recognition of equivalence and taking action to address
compliance problems in existing trade.  An impor ting Member may decide that it is necessary to
impose some additional control measure or suspend trade at any time if it has sufficient reason to
believe that continuation of trade would violate its appropriate level of protection.  Such a trade
restriction may coincide with consideration by the same Member of a request for recognition of
equivalence and lead an exporting Member whose trade is affected to suspect that the two events are
linked.  To avoid any misinterpretation of this ki nd, the importing Member should give an immediate
and comprehensive explanation of the reasons for its action in restricting trade to any other Members
affected, and it should also follow the normal or  emergency notification procedures established under
the SPS Agreement as appropriate.
IV. COMMENTS ON PARAGRAPH 7
10. In brief, paragraph 7 of the Decision G/SPS /19 says that the importing Member should
consider the information provided by the exporting Member on its measures in order to determine
whether those measures achieve the level of protection provided by the importing Member’smeasures.  Several issues arise from this paragraph.
11. The first issue is that the text of paragraph 7 does not correspond precisely with the text of
Article 4 of the Agreement.  The former refers to achieving the level of protection achieved by the
importing Member’s measures whereas the latter refers to achieving the importing Member’s
appropriate level of protection.  No difficulty arises if the level of protection achieved by theimporting Member’s measures is the same as the level of protection desired by the importing Member
(that is, its ALOP), which in practice is likely to be the case in most instances.  Where there is a
disparity between the level of protection required by the importing Member and that achieved by itsG/SPS/GEN/331
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own measures when applied to its own products, a co mplicated situation could arise.  This difficulty
could be overcome by recognising the primacy of the SPS Agreement, so that paragraph 7 of the
Decision could not be interpreted in a way inconsistent with Article 4 of the Agreement.
12. The second issue is how to judge whether a set of measures proposed by an exporting
Member would reliably achieve the ALOP of an im porting Member.  The ALOP is often not stated, or
is stated to be the level achieved by the applicable measures.  Some practical means for comparing
measures may therefore be necessary for an effective process for equivalence determination.  This
could be by the importing Member specifying an objective basis for the comparison of alternative
measures.
13. Paragraph 2 of the Decision requires an importing Member to provide certain information, but
does not specifically require the provision of information that would enable alternative measures to be
properly and objectively compared while minimising the need for exercise of qualitative judgementby the authorities of the importing Member.  While responsibility for demonstrating equivalence falls
upon the exporting Member, the provision by the importing Member of an objective basis for
comparison of alternative measures can be critical to the efficient, effective and equitable handling of
a request for an equivalence determination.  Encouraging importing Members to provide such
information as part of the "additional information" referred to in paragraph 2 of the Decision could
enhance implementation of paragraph 7 of the Decision.
14. To illustrate how this approach might be applied, consider the hypothetical example of a
fodder product used for animal feed that may contain a parasitic organism capable of causing disease
in an animal that consumes the product. Assume that the importing Member has in place a sanitary
measure whereby the product must be steam treated before it is allowed to enter the importingcountry. In response to a request from an exporting Member to accept the equivalence of alternative
measures combining field screening with a period of pre-export storage under inert gas, the importing
Member should conform with paragraph 2. In doing so, the importing Member could :
• state that the objective of its measure is to ensure that the product is free of the
parasite because the parasite may cause a certain disease in animals;
• state that the appropriate level of protection is that the risk of disease attributable to
the presence of the parasite in feed should be kept to a very low level;
• provide a copy of a qualitative risk assessment; and
• provide other technical information which is readily available.
Such a response from the importing Member would conform with paragraph 2 but would not
necessarily assist the exporting Member to give an objective demonstration of equivalence because it
would not be clear what was to be demonstrated. It may not be feasible for the importing Member to
state the objective of its measure in terms of the acceptable level of damage attributable to thepresence of the parasite in feed; nor would the exporting Member be likely to be able to quantify how
many cases of disease would be attributable to use of the feed processed in the manner it proposes.
Instead, the importing Member could state that equivalence would be demonstrated if the exporting
Member provided evidence that the means it proposed for parasite control would reliably result in
there being no higher incidence of parasites in the screened and stored fodder than in steam-treated
fodder.
V. CONCLUSION.
15. The above comments are submitted for consideration by the Committee with a view to
facilitating the practical implementation of G/SPS/19.
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