By Kuei-Jung Ni
The Codex Alimentarius Commission (Codex) that governs the making of international standards on food safety will reach its 50th anniversary in October 2013. The international institution was established in 1963 under the auspice of the World Health Organization (WHO) and the United Nations Food and Agriculture Organization (FAO). Its mandate is to approve food standards with a view to ensuring food safety and promoting food trade by harmonizing national food regulations. As of 2013, the Codex consists of 186 members.
Compliance with Codex standards used to be on a voluntary basis; the standards initially gave nations guidance in building up their food safety regulatory regimes without exerting legally binding force. However, the status of the standards has been drastically changed in the wake of the effectiveness of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO) in 1995. That agreement explicitly requires WTO members to base their SPS measures on international standards, including those of Codex, and gives national measures that comply with Codex standards a presumption of SPS-consistency. Since then, the Codex has gained much weight, especially in the determination of the legality of WTO members’ disputable measures.
From a global governance perspective, WTO and Codex institutionally should be in a cozy and mutually supportive relationship. Thus, it is not surprising to see the SPS Committee of the WTO, at its recent session, send the Codex a quite polite and encouraging message, calling for continued support for the body, and for trade measures to be based on science. The US, Argentina, Australia, New Zealand, Canada, Belize, Russia, Chile, Senegal, the EU, Burkina Faso, Pakistan, Switzerland, Norway, South Africa, Argentina, Dominican Rep, China, Cuba and Lebanon (a WTO observer) echoed the key message mainly articulated by Brazil in praise of Codex’s work.
Yet, not all WTO members were overwhelmed by the message. In particular, the European Union (EU), even while it agreed that the tasks of the Codex are significant, maintained that Codex standards are not one size fits all, and emphasized that countries still have the right to adopt appropriate measures that deviate from Codex.
Indeed, in recent decades, the adoption of certain Codex standards has been controversial, not always following a pure science-based approach and often lacking a global consensus. For instance, the US and Canada permit the use of ractopamine, a veterinary drug administered as a feed additive to increase leanness in pork and beef. They pushed the Codex hard to adopt the maximum residual levels (MRLs) for ractopamine. The standards were proposed by the Joint Expert Committee on Food Additives (JECFA) that provides scientific advice to the Codex. By contrast, the EU and China long opposed the adoption of such standards. They continue to challenge the credibility of the risk assessment of the drug conducted by the JECFA.
The MRLs suggested by the JECFA aroused skeptics mainly because, as the EC has pointed out, the relevant data collected and reviewed concerning the adverse effects of ractopamine was with rare exception not derived from human tests. China, whose people preferentially consume the organs of livestock, considers the current data on ractopamine incomplete due to a lack of information on the impact on human livers and risks to certain people.
Furthermore, the procedural defect concerning Codex standard-setting has also been heavily criticized. The Codex used to set voluntary standards by consensus. There seemed no need to resort to voting, which allowed Codex members to engage in deliberations with greater patience. Prior to the establishment of the WTO, there was no history of using voting in Codex decision-making. However, the Codex has approved several contentious standards, not by consensus, but by a majority vote since 1995 when, as discussed above, compliance with the standards became less voluntary. For instance, the adoption of MRLs for five growth-promoting hormones in 1995 proved to be extremely controversial. These standards were adopted by a simple, closely contested, majority vote. Unfortunately, although Codex has vowed to seek consensus in deciding international standards for food safety, the Codex again resorted to voting in adoption of MRLs for ractopamine in July 2012.
As WTO’s decision-making is ordinarily based on consensus, it would be incoherent to see Codex continue to set standards by voting, a process that normally subjects standard-setting to political influence. Codex should rectify its problematic operation so as to increase the world-wide respect given to its standards.
