As a delegate to a Codex committee, you have appropriately focused your attention on drafting standards, guidelines, and recommendations as directed by the Codex Alimentarius Commission (CAC). I respectfully question whether you have a complete and accurate understanding of how these texts will be used by the World Trade Organization (WTO).
In conversations with a number of you at past sessions of the Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU), I inquired as to how you expected the Guidelines for Vitamin and Mineral Food Supplements to be used once it has been finalized. The vast majority of you confidently responded that the Guidelines were to be optional guidelines for those countries that need this type of information. Even members of the German Codex staff strongly insisted that the Guidelines were optional.
Yes, this was the original CAC directive. It is what Codex is designed to do. However, since the WTO was created in 1995, things have changed. Now all countries that are members of the WTO are bound by WTO agreements and Codex has signed up to serve under the WTO SPS Agreement as a standard-setting organization. This means that Codex provides trade standards related to food for use by the WTO.
Many in Codex believe that Codex does not need to be concerned with what the WTO might do with Codex standards, as only WTO member countries will be impacted. When I compared a list of Codex member countries with countries that are WTO members or in the process of becoming a WTO member, however, only seven Codex member countries were not included on the WTO list. That means that if the WTO needs it to enforce WTO agreements or to settle a trade dispute between two WTO member countries, almost every country in the world will be bound by a Codex standard.
You might then bring up the fact that the Guidelines are guidelines only, not a standard. You might say that Codex guidelines and recommendations are not intended to be standards. While this may be the intention of the Codex committees when they draft these texts, the WTO went on record in 1998 to assert that they do not differentiate between Codex texts, whether labeled as ‘standards’, ‘guidelines’ or ‘recommendations’. All texts will be used as standards under the WTO SPS Agreement. Further, the CAC studied the WTO TBT Agreement definition for ‘standard’ and decided that it covers the Codex ‘standards’, ‘guidelines’ and ‘recommendations’. There does not appear to be any doubt that the WTO could use the Guidelines as an international trade standard.
As a CCNFSDU delegate you are creating an optional guideline text related to dietary supplements. What the WTO needs to fulfill its mission are mandatory standards. The WTO has the right to use Codex texts as mandatory standards for international trade issues between WTO members. This includes almost all Codex member countries, including yours.
If the CCNFSDU sees the need for the Guidelines as an optional source of important information, I urge the members to request specific input from the WTO regarding how to designate the Guidelines so that this text can NEVER be used as a mandatory international trade standard enforceable against all WTO member countries. This information will enable you to incorporate appropriate changes into the Guidelines document before it is finalized and feel confident that this text will be used only as you intended.
On the other hand, if you do intend for the Guidelines text to be used as a mandatory international trade standard, then you need to remove all exceptions and change the language so it is applicable for all countries under all circumstances. This might actually be impossible.
For those who want to have more background and links to the Codex and WTO documents referenced, I have listed additional material below.
If you wish to discuss this matter in person, I will be at the Bonn session.
Thank you for consideration of my concern. I trust you to take appropriate actions to protect the Guidelines from misuse.
Why do I feel so strongly that further WTO clarifications are necessary? When I first learned about Codex Alimentarius in 2001, I started studying the Procedural Manual and other Codex documents to find out how Codex functions. Once I learned that Codex had no enforcement power, I started doing additional research to find out how Codex texts could be used by the WTO. Each year I have returned to look from a new perspective, expecting things to become clearer. Instead, these issues have become more confusing. Although Codex was selected to provide WTO with standards to be used in resolving international trade disputes involving food, Codex continues to tell its members that compliance is voluntary. In actual practice we observe how the Codex texts can be used by the WTO to force a WTO member country to comply with a Codex standard.
Some experts believe that it is not possible to really know how a Codex text will be used until a specific case using it goes through the WTO Dispute Settlement Process. Is this reasonable? How can you, as a Codex delegate, draft texts when you cannot be sure that they will be used for the intended purpose?
Below I have compiled a quick overview to help you understand the sequence of events. This is followed by links providing you online access to related documents.
Codex set trade standards and encouraged countries to adopt them.
In 1991 the Codex Alimentarius Commission (CAC) gave the Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU) an assignment to draft guidelines for vitamin and mineral supplements. At that time “guidelines” were optional suggestions for countries seeking that type of information, as opposed to standards that all countries were expected to adopt.
During the Uruguay Round of Multilateral Trade Negotiations (1986-1994) that culminated with the establishment of the WTO, Codex Alimentarius became the recognized source for food-related trade standards, guidelines, and recommendations.
In 1995, the WTO was established and assumed jurisdiction over all products on the market.
The WTO officially selected “standard-setting” organizations to provide international trade standards to be used by the WTO to resolve trade disputes.
Codex was selected to be one of the three standard-setting organizations working under the SPS Agreement to harmonize sanitary and phytosanitary measures by different WTO member countries:
The WTO states that member countries are encouraged to use international standards, guidelines and recommendations where they exist. Yet WTO presumes WTO member countries are in full compliance, and the WTO set up a legally binding dispute settlement process to resolve international trade disputes among WTO member countries. Decisions for cases involving food are based on the standards, guidelines and recommendations established by Codex Alimentarius.
In 1997 Codex requested that the WTO SPS Committee clarify how they defined the differences between ‘standards’, ‘guidelines’ and ‘recommendations’.
In 1998 the SPS Committee (the governing SPS Agreement related to sanitary regulations) responded as follows:
After the 1998 WTO SPS Committee clarifications, the Codex Committee on General Principles requested that the CAC ask the WTO for clarifications as to how the WTO will use Codex standards, guidelines and recommendations per the TBT Agreement, which requires mandatory compliance of what Codex creates.
The WTO TBT Agreement states that all products are subject to previsions of this agreement. TBT uses only the terms ‘standard’ and ‘technical regulation’.
In 1999, a Codex committee decided the TBT Agreement definition of ‘standard’ could cover Codex text categories and decided that no further questioning of WTO use of Codex texts was needed.
Although representatives of the WTO have stated that clarifications can be requested, Codex has not requested further clarifications from the WTO.
The following links provide easy access to important related documents:
In WTO documentation:
“NOTE: 5. The Committee noted that there is no legal obligation on Members to apply Codex standards, guidelines and recommendations and, in accordance with the terms of Article 3 of the SPS Agreement, Members may choose to apply them or not. The Committee observed that how a Codex text was applied depended on its substantive content rather than the category of that text (eg., commodity standards, MRLs, codes of practice, guidelines). This might have some bearing on how a Member could show that its measure is based on an international standard, guideline or recommendation in the context of Article 3 of the SPS Agreement. For example, a Codex standard, such as an MRL which represented a specific numeric value, may provide a higher degree of precision than much of the content of a guideline or other Codex text. On the other hand, the Committee considered that guidelines and recommendations are intended to allow greater discretion as to the choice of measures which can be regarded as being based on the guideline or recommendation. However, the Committee was of the view that Codex work should not be constrained by this question. The Committee considers it to be an internal decision of the Codex Alimentarius Commission regarding the type and content of the texts it develops to address issues before it.”
In Codex documentation:
CODEX COMMITTEE ON GENERAL PRINCIPLES 13th Session,
CODEX COMMITTEE ON GENERAL PRINCIPLES 14th Session,
COMMITTEE ON GENERAL PRINCIPLES 17th Session,
COMMITTEE ON GENERAL PRINCIPLES 18th Session,