The Codex Alimentarius Commission and International Food Safety Standards
Diahanna L. Post
PhD Candidate, Political Science
Univ. of California, Berkeley
September, 2003
This note provides an overview of what the Codex Alimentarius Commission is and how its standards are currently used in international trade. It is aimed primarily at explaining Codex to those who are unfamiliar with it. Codex standards are used by developing countries to gain leverage within the WTO-SPS Committee and also by regional and international organizations seeking to promote harmonization and improved food safety regulation by countries.
What is Codex and how does it work?
The Codex Alimentarius Commission is an international governmental organization created in 1963 in response to two concerns: “protecting consumers’ health and ensuring fair practices in the food trade.”[1] The 1940s and 1950s saw increased concern among consumers over food technologies and associated health hazards; at the same time, different food regulations across countries gave rise to trade barriers. The United Nations Food and Agriculture Organization (FAO) established Codex in 1961, and Codex received an endorsement from the World Health Organization (WHO) in 1963. Currently, Codex is run jointly by FAO and WHO, although FAO supplies up to 80-90% of the budget and houses Codex staff as well.
Codex is the primary international body that develops international food safety and quality standards. Currently Codex has over 165 member states. These countries send delegations to subcommittees of Codex, where the main work of developing standards is done. There are two main types of committees in Codex: commodity or vertical committees, which set standards for individual commodities, and general subject or horizontal committees, which address among other topics veterinary drugs, additives and contaminants, and pesticide residues. There are six General Subject Committees and 14 Commodity Committees (some of which are currently defunct). There are also regional committees for Africa, Asia, Europe, Latin America, and North America. In recent years, Codex has turned with increasing frequency to ad hoc task forces to get the job done of developing standards within a limited time frame, and currently there are groups in the areas of animal feed and fruit juices. (The task force on biotechnology was dissolved at the last meeting of the Codex Commission.) These committees and task forces usually meet once every one to two years. Most observers of Codex agree that the most important work currently being done by the Commission is in the horizontal committees—such as labeling, food additives, and pesticides—and the task forces.
In addition to the committees of Codex, there are three expert groups that, while not officially affiliated with the Commission, perform the vast majority of expert analysis that feeds into the Codex decision. These three groups are the Joint Expert Committee on Food Additives (JECFA), the Joint Meeting on Pesticide Residues (JMPR), and the Joint FAO/WHO Expert Meetings on Microbiological Risk Assessment (JEMRA). These three expert groups are, like Codex, run jointly by FAO and WHO. A main difference between the Codex Committees and the expert groups is that the individuals in the expert groups are expected to represent their own opinion as scientists, while the individuals participating in the Codex committee meetings—regardless if they are the same people as participate in the expert group—are expected to represent their government’s position.
The decision-making body of Codex is the Commission itself, which until recently met once every other year and is now expected to start meeting on an annual basis. The Commission adopts standards, guidelines, and codes of practice. Usually, these are adopted by consensus. There does, however, exist a procedure for majority voting. This is used infrequently, but has been invoked for some of the most contentious decisions of Codex, such as beef hormones. Before standards can reach the Commission, they must endure a lengthy process of five to eight rounds of revision between the Codex Secretariat, the Codex Committee in charge, and the member states of the Commission.
Because Codex is an international governmental organization, government delegations at the meetings of the Codex Commission and its subcommittees and task forces are the only ones with the right to vote (along the principle of one country, one vote), and are generally granted the right to speak before observers are allowed. Other international governmental organizations and international trade associations, scientific and professional groups, and international consumer groups are also allowed to participate in the meetings as observers, provided they meet the Codex criteria for an international organization. Traditionally, trade associations have made up the vast majority of observers at Codex meetings.[2] In addition, industry representatives frequently participate as part of a government delegation, and this occurs among most of the countries that attend Codex meetings. Less frequently, some countries also include consumer protection association representatives in their government delegations, although this practice tends to be limited to a few European countries.
The output of Codex includes standards, guidelines, and codes of practice. Commodity standards address questions such as what constitutes chocolate, sugar, canned peaches, or corned beef. These standards are concerned with questions of fair labeling, consumer fraud, and unfair competition, as well as a safety benchmark expressed in the quantity and type of food additive or contaminant permitted. General standards cover issues such as labeling, food hygiene, and methods of analysis and sampling. Standards for pesticides and veterinary drugs are usually expressed in terms of a single number, a Maximum Residue Limit (MRL) for the substance. A significant proportion of Codex output, however, takes the form of purely voluntary guidelines and codes of practice, which are not submitted to states for acceptance. Since 1963, Codex has analyzed over 195 pesticides and 50 veterinary drugs; issued over 200 commodity standards, 33 guidelines and 43 recommended codes of practice; and adopted almost 3,000 MRLs and several dozen general standards.
Codex activities have been significantly affected by the founding of the WTO. When the Uruguay Round was signed in 1994 and the WTO was established, countries agreed to a set of procedures about how to resolve disputes over sanitary and phytosanitary (SPS) regulations.[3] SPS regulations are a concern at the WTO because of their potential to serve as non-tariff barriers to trade, that is, barriers that do not take the form of a tariff or tax on imported goods. Instead, countries may and do use SPS regulations to protect domestic industries rather than promote health and safety as they are intended. The SPS Agreement refers to the use of international standards in dispute resolution processes as a way to distinguish between justified use of SPS standards and unjustified, protectionist use. Codex, along with the International Office of Epizootics and the International Plant Protection Convention, are the international organizations mentioned in the SPS Agreement as sources of international standards. Thus, Codex food standards may serve as international benchmarks for resolution of disputes over SPS measures. This agreement has resulted in a tremendous increase in international attention to Codex.
This increase in attention has led to calls for change in how Codex operates. Many more countries now attend the biennial Commission meeting than in the years leading up to the WTO establishment. This past year, FAO and WHO, the parent organizations of Codex, completed an evaluation of the management of Codex. Possible changes to accommodate increased pressure on Codex include yearly meetings of the main decision-making body, the Commission, and a streamlined procedure for developing and adopting Codex standards. Concurrently with the evaluation of Codex, FAO and WHO initiated a trust fund for facilitating participation to aid developing countries in attending the meetings.
How is Codex currently being used?
While Codex attracts much attention from industry organizations, the main use of Codex standards and guidelines is by governments and regional and international organizations. Codex standards have never been binding on governments. There has, however, been an acceptance procedure for commodity, pesticide, and some general standards that governments could use to notify others that they either accepted these standards for use in their own regulatory policies or at least would allow products meeting those standards to be traded freely within their borders. In practice, this acceptance procedure has not been used frequently, and has not represented the full range of Codex activity. Up until the early 1990s, Codex issued reports on country acceptances of commodity standards and MRLs about once every ten years. Beginning in 1994, Codex stopped issuing any updates on acceptances because of the uncertain implications of acceptances of standards under the WTO and the SPS Agreement. The last time that Codex issued a full report on acceptances, in 1989, it indicated that 62 of the 135 member countries of Codex at that time had never responded to the Commission regarding acceptances of commodity standards, and the remaining 73 countries had each accepted about one-quarter of the commodity standards at the time.[4] Generally, however, developing countries have accepted more standards than industrialized countries.
The potential for a Codex standard to play a role in a WTO dispute overshadows much of the current discussion of how Codex standards are used. In the past nine years, however, only two cases that hinged on Codex standards have gone completely through the dispute settlement process. The most well-known one is beef hormones between the United States and the European Union; more recent and less well-known is the sardine dispute between Peru and the European Union.
The dispute over beef hormones resulted from a 1980s ban by the European Community on the imports of meat from animals treated with growth hormones. The United States, which was heavily affected by the ban, initiated a discussion in Codex on setting standards for residues of veterinary drugs. JECFA, the Codex expert body on food additives (see above), found the hormones to be safe when used at low levels, and set standards for those levels in 1987. Codex had an extensive discussion on the issue in its 1991 Commission meeting, and decided against adopting the JECFA limits. Four years later, in one of the most controversial votes held in Codex, the Commission adopted standards for most of the growth hormones by a narrow majority vote.[5] The setting of standards, which implied that levels under the standards were safe to be consumed, threatened the European ban. The United States took advantage of the situation and filed a trade dispute in the WTO under the SPS Agreement, citing the newly-adopted Codex standards, and contending that the European ban was not based on sound science.
The WTO panel that initially ruled on the beef hormone case agreed with the United States that the European ban was illegal because a more permissive Codex standard existed. The subsequent Appellate Body hearing, however, overturned this interpretation of the SPS Agreement. Instead, the Appellate Body stated that the SPS Agreement was intended to encourage members to base their standards on international standards, but that countries were allowed to deviate from international standards if the process by which they did so was based on a risk assessment, or some formal set of criteria. It was in this area that the European ban was found lacking, and not because it did not conform to the Codex standard.[6] Since the adoption of the Appellate Body report, the European Union has opted, as is its right, not to change its regulations but instead to pay compensation to the US.[7]
The sardine case is only the second case involving a Codex standard that has gone through the entire WTO dispute settlement process. In 2001, Peru requested that a panel be established under the WTO to examine a European regulation which Peru contended was not consistent with the Technical Barriers to Trade Agreement of the WTO.[8] The European regulation allowed only sardines of the species Sardina pilchardus found primarily in the Mediterranean and northeastern Atlantic—i.e. near Europe—to be labeled as sardines. The species Sardinops sagax found in the eastern Pacific off the coasts of Peru and Chile was prohibited from being labeled “Peruvian sardine” according to the European regulation. The panel ruled May 2002 in favor of Peru, citing the Codex standard for canned sardines which provides for a number of different species that can be labeled as sardines, including those exported by Peru and Chile. The dispute panel found that the European regulation did not rely on this Codex standard, and that under Article 2.4 of the TBT Agreement members have an “ongoing obligation…to reassess their existing technical regulations in light of the adoption of new international standards or the revision of existing international standards.”[9]
There are, however, other instances in the WTO where Codex standards play a role without going through the entire dispute settlement process. A controversy over EU aflatoxin standards is one example of how developing countries try to use the leverage of the WTO and Codex standards to pursue their interests in multilateral trading fora. One of the more controversial food safety topics in the WTO SPS Committee, still on-going, has been the European Union’s attempt to set tight standards for aflatoxins, a food contaminant that is a known carcinogen and which occurs in nuts, cereals, and milk. The issue was raised in the SPS Committee in 1998 when the EU first announced plans to introduce tough aflatoxin requirements. Over fifteen countries joined in raising the issue at the SPS meeting.[10] They argued that the EU standard-setting was premature, because Codex was simultaneously considering standards for aflatoxins, and that it would be better for the EU to wait for the Codex standard. The EU nevertheless went ahead and set its standards in 1998, also adopting a controversial sampling plan which Argentina, among other countries, argued would disadvantage exporting countries.[11]
The development and adoption of Codex standards has been used in two ways in the aflatoxin controversy. First, Bolivia has taken an especially aggressive tack, arguing specifically before the committee that the EU standards would harm its export of Brazil nuts. The EU conducted extensive negotiations with Bolivia and sent delegations to Bolivia to assess the process by which Brazil nuts were produced to attempt to reduce sources of aflatoxin contamination.[12] After much negotiation, Bolivia announced in November 2002 that a solution had been reached. In December, 2002, however, Bolivia raised the question within Codex of establishing a Codex standard for Brazil nuts.[13] This is an attempt to get a standard more favorable to Bolivia than the current “special and differential treatment” Bolivia is receiving from the EU.
The 1998 EU levels for aflatoxin in milk, also set before the adoption of Codex standards, may have driven a wedge in the Codex negotiations. Prior to 1998, Codex had been developing a standard which called for levels of 0.05 mg/kg in milk, and the European standard was set at this level. However, the level of 0.05 mg/kg was contested in the Codex Committee on Food Additives and Contaminants which cited a decision from the expert body JECFA that a ten-fold higher level, of 0.5 mg/kg, would provide the same overall level of protection. This controversy spilled over into the 2001 full Codex Commission meeting, which took a vote—generally reserved only for very controversial standards—to approve the higher level of 0.5 mg/kg over the objections of European countries.
Finally, Codex standards are not only used by individual governments, but also by regional and international organizations. In technical assistance projects in developing countries, the FAO and WHO both promote the adoption of Codex standards.[14] Also, some regional trade groupings such as MERCOSUR and the Free Trade Agreement of the Americas are relying on Codex standards to harmonize sanitary requirements among the countries of the regions.
La Comisión del Codex Alimentarius y las Normas en Inocuidad en los Alimentos
Diahanna L. Post
Candidata a PhD, Ciencias Políticas
Univ. de California, Berkeley
Septiembre, 2003
El presente artículo brinda un panorama de lo que significa la Comisión del Codex Alimentarius y de la forma en que sus normas se utilizan en el comercio internacional. Su propósito es, en primer lugar, explicar qué es el Codex a los que no están familiarizados con él. Los países en vías de desarrollo utilizan las normas del Codex para mejorar su posición ante el Comité de la OMC-MSF (Medidas Sanitarias y Fitosanitarias), y también los utilizan las organizaciones regionales e internacionales que procuran promover la armonización y una mayor regulación de la inocuidad de los alimentos por parte de los países.