European CommunitiesĂ˘â‚¬â€ťMeasures Concerning Meat and Meat Products (Hormones)
BACKGROUND AND FACTS
Throughout the 1970s, European consumers became more concerned over the use of hormones to speed the growth of livestock. Their fears were in part based on the fact that some people had been injured by the illegal use of certain banned hormones. Some consumer organizations boycotted meats. By 1986, the EC had banned the sale of beef from cattle given growth hormones. The EC maintained that such measures were necessary to protect public health (primarily from hormone-related illnesses and cancer) and necessary to restore confidence in the meat industry. The United States began contesting the hormone ban in 1987 at GATT. In January 1989, the United States introduced retaliatory measures in the form of 100 percent ad valorem duties on a list of products imported from the European Communities. The United States, together with Australia, Canada, New Zealand, and Norway maintained that the ban was unlawful under the 1994 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and brought this complaint. The United States argued that the ban was not based on an assessment of risk, not based on scientific principles, more trade-restrictive than necessary, and a disguised restriction on trade. In June 1996, the European Communities requested the establishment of a panel to examine this matter, and the United States terminated its retaliatory action entirely. Prior to the ban, U.S. firms had exported hundreds of millions of dollars of goods annually to Europe. After the ban, exports plummeted to nearly zero. The European Communities argued that its measures offered equal opportunities of access to the EC market for all third-country animals and meat from animals to which no hormones had been administered for growth promotion purposes.
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REPORT OF THE PANE
Article 3.1 requires Members to base their sanitary measures on international standards, guidelines or recommendations [where they exist]. We note, therefore, that even if international standards may not, in their own right, be binding on Members, Article 3.1 requires Members to base their sanitary measures on these standards Ă˘â‚¬Â¦ We shall therefore, as a first step, examine whether there are international standards, guidelines or recommendations with respect to the EC measures in dispute and, if so, whether the EC measures are based on these standards, guidelines or recommendations in accordance with Article 3.1[of the SPS Agreement]:
To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary and phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement Ă˘â‚¬Â¦
For food safetyĂ˘â‚¬Â¦the SPS Agreement defines Ă˘â‚¬Ĺ“international standards, guidelines or recommendationsĂ˘â‚¬Âť as Ă˘â‚¬Ĺ“the standards, guidelines and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice.Ă˘â‚¬Âť We note that [there are] five Codex standardsĂ˘â‚¬Â¦relating to veterinary drug residuesĂ˘â‚¬Â¦with respect to five of the six hormones in dispute when these hormones are used for growth promotion purposesĂ˘â‚¬Â¦We find, therefore, that international standards exist with respect to the EC measures in dispute. * * *
The amount of residues of these hormones administered for growth promotion purposes allowed by these Codex standards is Ă˘â‚¬Â¦ higher than zero (a maximum level of such residues has not even been prescribed). The EC measures in dispute, on the other hand, do not allow the presence of any residues of these three hormones administered for growth promotion purposes. The level of protection reflected in the EC measures is, therefore, significantly different from the level of protection reflected in the Codex standards. The EC measures in dispute are Ă˘â‚¬Â¦ therefore, not based on existing international standards as specified in Article 3.1. * * *
[For those sanitary measures for which no international standards exist]Ă˘â‚¬Â¦ a Member needs to ensure that its sanitary measures are based on an assessment of risks. The obligation to base a sanitary measure on a risk assessment may be viewed as a specific application of the basic obligations contained in Article 2.2 of the SPS Agreement which provides that Ă˘â‚¬Ĺ“Members shall ensure that any sanitary Ă˘â‚¬Â¦ measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence Ă˘â‚¬Â¦Ă˘â‚¬Âť (emphasis added). Articles 5.1 to 5.3 sum up factors a Member needs to take into account in making this assessment of risks Ă˘â‚¬Â¦ [A]n assessment of risks is, at least for risks to human life or health, a scientific examination of data and factual studies; it is not a policy exercise involving social value judgments made by political bodies. * * *
We recall that under the SPS Agreement a risk assessment should, for the purposes of this dispute, identify the adverse effects on human health arising from the presence of the specific hormones at issue when used as growth promoters in meat or meat products and, if any such adverse effects exist, evaluate the potential or probability of occurrence of these effects. We further recall that a risk assessment should be a scientific examination of data and studies and that the SPS Agreement sets out factors which need to be taken into account in a risk assessment.
[The panel conducted a review of the scientific studies.] All of the scientific studies outlined above came to the conclusion that the use of the hormones at issue for growth promotion purposes is safe; most of these studies adding that this conclusion assumes that good practice is followed. We note that this conclusion has also been confirmed by the scientific experts advising the Panel. Accordingly, the European Communities has not established the existence of any identifiable risk against which the EC measures at issue Ă˘â‚¬Â¦ can protect human life or health.
Decision. The ECĂ˘â‚¬â„˘s ban on the sale of beef containing residues of growth hormones was found to violate the Agreement on the Application of Sanitary and Phytosanitary Measures. Where an existing internationally accepted standard permits beef to contain a residue of a certain growth hormone, an EC regulation permitting zero residue is in violation of the agreement. Where no internationally accepted standard exists on the residue of a certain hormone, the EC ban on that hormone is not permitted because it is not based on a risk assessment made using scientifically accepted principles.
Comment. The panelĂ˘â‚¬â„˘s decision was upheld by the WTO Appellate Body in 1998 and accepted by the WTO Dispute Settlement Body. The United States and Canada were authorized to impose retaliatory tariffs on EU imports. The United States imposed 100 percent duties on a range of European products valued at $116 million per year (Canada at CDN$11.3 million). In 2009, an agreement was finally reached in which the EU would allow increased duty free imports of U.S. beef produced without hormones in return for the United States eliminating the retaliatory tariffs over a period of several years.
1. What was the role of the panel in settling this dispute under the SPS Agreement? Did it make its own determination and draw its own scientific conclusions about the effect of beef hormones on human health, or did it give total deference to the conclusions of the EU scientists?
2. What factors were taken into account to determine whether a sanitary measure violates the SPS Agreement?
3. It is an interesting irony in this case, that today many scientists, environmentalists, and consumer groups in the United States are calling for a similar domestic ban on beef growth hormones. How do you feel about the use of hormones in beef cattle?