By Avishka Jayaweera

In today’s day and age, most of the food we consume or even see in stores is facilitated by trade. The global value of food exports is approximately USD 1.4 trillion. There are multiple regulations that these products must comply with so as to ensure consumer safety among other things. Since countries are able to decide their own standards, these regulations can differ from one country to another. This could result in a product having to comply with one standard in Country A but a completely different one in Country B. In effect, a product may have to undergo different sanitary standards or even have different labels if it is to be sold in another country. These differences increase the cost for producers and are often a heavy burden on smaller exporters. These standards can thus act as barriers to global trade.

In order to minimize these barriers in trade, the World Trade Organization (WTO) through several agreements encourages the adoption of standards that are less trade-restrictive as well as harmonization of standards. This is primarily done through the Agreement on Technical Barriers to Trade (TBT) and the Agreement on Sanitary and Phytosanitary Measures (SPS). The SPS applies in the context of food regulations to human health protection measures in trade while the TBT applies to other food regulations including quality and labelling requirements. Article 2.4 of the TBT requires that when relevant international standards exist or completion is imminent, they should be used as the basis for the technical regulation unless they would be ineffective or inappropriate means to fulfil the relevant objective. Similarly, Article 3 of the SPS states that for harmonization, Members should base their sanitary and phytosanitary measures on international standards, guidelines or recommendations unless they wish to achieve a higher level of protection with a scientific justification. This aims at balancing both the interest of trade, which is to reduce barriers by increasing harmonization of food standards between countries, while at the same time providing sufficient regulatory space for Members to adopt standards and regulations that cater to their specific needs.

One such international standardizing body that plays a vital role in this area is the Codex Alimentarius which was established jointly by the WTO and the UN Food and Agriculture Organization in 1963 as part of the Joint FAO/WHO International Food Standards Programme. The Codex develops various international standards ranging from food safety to labelling requirements and was recognized in EC – Sardines as an international standardizing body. The WTO’s relationship with food standards continues to grow, with over 28% of TBT notifications being food-related and 74% of SPS notifications being food safety-related and will continue to impact many a consumer’s life.

In the context of food labelling in Sri Lanka, one legislature governing food labelling is the ‘Food (Labelling and Advertising) Regulation 2005’ made under the ‘Food Act 1980’. This aims to regulate the claims made by various food products. While the definition of ‘Claim’ is modelled to a great extent as per the Codex, the Sri Lankan legislature omits those relating to production, which would limit the scope of application. Further, whereas the Codex classifies claims related to nutritional properties as nutrition and health claims, no explicit classification is adopted in domestic regulations. The domestic regulations further fail to identify and regulate ‘non-addictive claims’ and claims on ‘fresh’, ‘homemade’ and ‘organically or biologically grown’.

Another recent legislature is the Food (Colour Coding for Sugar Levels) Regulation 2016 for beverages and Food (Colour Coding for Sugar, Salt, and Fat) Regulations 2019 which apply to packaged foods. This is a mandatory front-of-pack labelling system, referred to as ‘traffic light labelling’ which indicates the levels of sugar, salt and fat content. While the Codex guidelines that explicitly regulate front of pack labelling are currently being drafted, concerns have been raised on whether such labeling is consistent with Article 2.2 of the TBT and whether it creates unnecessary obstacles to international trade. So, the next time you buy a chocolate bar in a store, take a moment to consider that its label, ingredients, nutritional information are all influenced by various food standards and global trade and may even be the reason for a future WTO dispute.

The views and opinions expressed in articles submitted to the Comparative Advantage Blog are those of the author and do not necessarily reflect the views of The Moot Court Bench


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