WORLD TRADE
ORGANIZATIONG/SPS/GEN/302
11 March 2002
(02-1206)
Committee on Sanitary and
Phytosanitary MeasuresOriginal:  Spanish
CHILE - MEASURES AFFECTING EXPORTS OF PET FOOD
Submission by Argentina
I. INTRODUCTION
1. The Government of Chile submitted a notification (G/SPS/N/CHL/104) to the WTO
Committee on Sanitary and Phytosanitary measures concerning a draft standard establishing the
import requirements for pet food whose formula cont ains meat and bone meal of ruminant origin.
2. Under this draft standard, the products in question would be required to undergo thermal
treatment, as provided for by the International Offi ce of Epizootics (OIE).  The relevant text of the
draft resolution reads as follows:  "The raw material shall be reduced to particles of a maximum size
of 50 before undergoing thermal treatment;  after which it shall be submitted to thermal treatment in a
vapour saturated atmosphere at a temperature of at least 130°C for a minimum period of 20 minutes,
and at a pressure of three bars."
3. If this draft is definitively approved, it will constitute an access restriction that is inconsistent
with the obligations established within the fr amework of the multilateral trading system, more
specifically with the commitments contained in the WTO Agreement on the Application of Sanitary
and Phytosanitary Measures (SPS Agreement).
4. This inconsistency arises from the fact that the draft is stricter than the international reference
parameters, and lacks sufficient scientific grounds and risk analysis to justify a higher level of
protection.
II. DISCIPLINES DERIVING FROM THE AGREEMENT ON THE APPLICATION OF
SANITARY AND PHYTOSANITARY MEASURES (SPS AGREEMENT)
5. What follows is a brief description of the disciplines deriving from the SPS Agreement that
are relevant to the case at issue.
A. SCIENTIFIC EVIDENCE – ASSESSMENT OF RISK
6. One of the fundamental principles of the SPS Agreement is that sanitary and phytosanitary
measures should be based on sufficient scientific evidence (Article 2.2) in order to ensure that they are
not used as unjustified restrictions on trade.  Accordingly, on the basis of the objectivity provided by
science, the application of this type of measure is disciplined in order to avoid discretionary
application by Members that would unjustifiably restrict international trade.
7. This basic principle is intrinsically related to the obligation to base sanitary and phytosanitary
measures on an assessment of risks (Article 5.1).  Indeed, this relationship between the two concepts
(scientific evidence and assessment of risks) has been widely recognized in WTO precedent.G/SPS/GEN/302
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B. HARMONIZATION
8. Another principle enshrined in the SPS Agreement is the harmonization, on as wide a basis as
possible, of sanitary and phytosantiary measures, "on the basis of" international standards, guidelines
and recommendations where they exist.  To that end, both the preamble to the SPS Agreement and
Article 3.1, 3.4 et seq. refer to harmonization as a trade facilitation instrument and encourageMembers to participate in international technical fora (Codex, OIE, IPPC) in order to promote the
development and periodic review of standards.
9. Article 3.2 of the SPS Agreement stipulates that sanitary or phytosanitary measures which
"conform" to the international st andards, guidelines or recommendations shall be deemed to be
necessary to protect human, animal or plant life or health, and presumed to be consistent with the
relevant provisions of the SPS Agreement and the GATT 1994.  This presumption of consistency is a
premium granted by the SPS Agreement to Members whose measures "conform" to internationalstandards.
10. If Members should decide to depart from the standards provided by the international rules of
reference for the establishment of a sanitary or phytosanitary measure, the presumption of consistency
disappears and the Member in question must provide sufficient information (including the
corresponding assessment of risks) to justify the added protection – compared to the internationalstandard – provided by the measure it wishes to introduce (see Article 3.3 of the SPS Agreement)
11. Finally, it is important to point out that according to relevant WTO precedent, both the panels
and the Appellate Body consider the said provisions as the scientific parameters to be taken into
account in settling disputes relating to the determination of whether or not a sanitary or phytosanitary
measure is consistent with the obligations set out in the SPS Agreement.
C. 
PROPORTIONALITY
12. Article 5.6 of the SPS Agreement requires Members to adopt proportionate measures.  This
principle is respected when, within the range of alternative measures suitable to achieve the
appropriate level of protection, Members implement the measure which is the least trade-restrictive.
D. REGIONALIZATION
13. Article 6.1 of the SPS Agreement stipulates that Members shall ensure that their sanitary or
phytosanitary measures are adapted to the characteristics of the area – whether all of a country, part of
a country, or all or parts of several countries – from which the product originated and to which the
product is destined.
III. INTERNATIONAL ANIMAL HEALTH CODE OF THE INTERNATIONAL OFFICE
OF EPIZOOTICS (OIE)
14. Chapter 3.2.13 of the OIE International Animal Health Code lays down the international
reference regulations with respect to bovine spongiform encephalopathy (BSE).  These regulations are
divided into three parts:
− establishment of the criteria for determining the BSE status of a country or zone;
− positive listing of products that do not present a risk of BSE transmission, and cannot
therefore be subject to any requirement related to that disease;G/SPS/GEN/302
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− establishment of the requirements that the Veterinary Administration of the country
of destination should impose, such requ irements varying according to the sanitary
status of the country or region of origin and the product risk.
15. Specifically in the case of imports from BSE-fr ee countries or zones, the Code lays down the
following requirements to be imposed by the Veteri nary Administration of the country of destination:
(a) For all commodities from cattle not mentioned in the list of risk-free products, the
presentation of an international veterinary certificate attesting that the country or zone
is free of BSE in conformity with Article 3.2.13.2;
(b) Gelatin and collagen prepared from bones and intended for food or feed, cosmetics,
pharmaceuticals or medical devices, the presentation of an international veterinary
certificate attesting that the bones came from a BSE-free country or zone;
(c) For tallow (other than protein-free ta llow) intended for food, feed, fertilizers,
cosmetics, pharmaceuticals or medical devices, the presentation of an international
veterinary certificate attesting that the bones came from a BSE-free country or zone;
(d) For tallow derivatives (other than those made from protein-free tallow) intended for
food, feed, fertilizers, cosmetics, pharmaceuticals or medical devices, presentation of
an international veterinary certificate at testing that they originate from a BSE-free
country or zone.
IV. SANITARY STATUS OF ARGENTINA
16. The EU Scientific Steering Committee has given Argentina a Level 1 rating, i.e. "highly
unlikely that domestic cattle are (clinically or pre-c linically) infected with BSE agent".  It is important
to bear in mind that this level represents the best guarantee of the absence of BSE in a territory.
V. LEGAL INCONSISTENCY OF DRAFT STANDARD
17. According to the principles enshrined in the SPS Agreement mentioned in Part II above and
the regulations laid down by the OIE Code, the Chilean draft standard is inconsistent from the legal
point of view for the following reasons.
18. Firstly, the draft lays down requirements (thermal treatment) for "pet food … whose formula
contains meat and bone meal of ruminant origin", without distinction as to the sanitary status of theregion or country of origin.  Thus, it depart s from the OIE Code, which clearly states that
requirements with respect to BSE must be established in accordance with the sanitary status of the
country or region of origin.
19. As already stated, Members may depart from international reference parameters where they
can supply sufficient scientific evidence to justify the measure in question.  In this case, the Chileanauthorities have not provided any evidence to ju stify imposing stricter requirements than those
provided for in the OIE regulations, so that the draft is inconsistent with Article 3.3 of the
SPS Agreement.
20. Similarly, the lack of scientific evidence that the products in question from BSE-free
countries present a risk of transmission of the disease is clearly inconsistent with the obligations laid
down in Articles 2.2 and 5.1 of the SPS Agreement.G/SPS/GEN/302
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21. Secondly, the draft standard is disproportionate with the aims pursued, in that the Chilean
authorities have alternatives for achieving the desired level of protection at a lower level of trade
restriction.  Indeed, even if Chile were to impose a "zero risk" level of protection with respect to BSE,
it should accept imports from countries declared as BSE-free since, as stated in the OIE Code, they do
not present any risk of transmission of the disease.
22. Finally, the draft standard does not respect the principle of regionalization established in the
SPS Agreement and adopted for BSE in the OIE Code, since the requirements established are general,
and imposed regardless of the place of origin of the product.
VI. APPEAL BY ARGENTINA
23. In view of the above considerations, Argentina requests that prior to the entry into force of the
draft standard, Chile provide sufficient scientific evidence to support its departure from the
international reference parameters, in conformity with Article 3.3 of the SPS Agreement, or failingthis, that it follow the recommendations provided in the OIE International Animal Health Code
(Chapter 3.2.13).
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