Checking compliance with food law: Control, inspection and approval procedures under the WTO SPS Agreement

The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO) has been the subject of much academic scrutiny and public attention, as it mediates a difficult tension, namely that between the liberalization of agri-food trade and the protection of health. However, this attention has focused on the disciplines that this agreement imposes on WTO Members’ regulatory measures in the area of health protection. Less prominent, but of no less importance, are the rules in the SPS Agreement dealing with procedures applied by Members to ensure compliance with their sanitary and phytosanitary (SPS) requirements. These are contained in Article 8 and Annex C of the SPS Agreement, which address control, inspection and approval procedures. These procedures are gaining in importance due to the difficulties inherent in the regulation of fragmented food production in global value chains. The rules of the SPS Agreement that apply to Members’ substantive SPS requirements aim to distinguish legitimate health protection from disguised protectionism, a politically sensitive objective that necessitates striking a delicate balance between states’ regulatory autonomy in the area of health protection and the liberalisation of agri-food trade. This balance can be undermined if the procedures used to ensure compliance with SPS regulations are not appropriately disciplined. On the one hand, compliance procedures may be abused to create de facto trade barriers. The trade restrictive effect may be especially acute for less-developed Members, due to their limited resources to devote to complex procedural requirements to demonstrate their compliance with SPS requirements. On the other hand, a too stringent interpretation of the disciplines on control, inspection and approval procedures may unacceptably weaken the ability of WTO Members to ensure that their SPS requirements are complied with, thereby endangering health. The rules on control, inspection and approval procedures thus merit close examination and further clarification to ensure that, in the context of food production in global value chains, they contribute to, rather than undermine, the careful balance between trade and health objectives sought by the SPS Agreement. This chapter aims to examine the obligations relating to control, inspection and approval procedures in the SPS Agreement, in light of existing case law, and to propose further clarifications to give full effect to the potential of Annex C.1 in line with the balancing objective of the SPS Agreement