Authors: Ryota Noguchi and Milly Ishihara*
The essay entitled “The Problems of Current Health Standards: Reviewing Loopholes of The SPS Agreement in WTO” posted by Mr. Dollin Ardan, published in Modern Diplomacy on November 11, 2023, is a highly insightful piece. In this essay, he argues that public perspectives and opinions should be considered in in the context of scientific consensus, as public sentiment can legitimize scientific consensus. He also raises concerns about the exclusion of public sentiments in the decision-making process for adopting sanitary and phytosanitary (SPS) measures and its potential impact on chronic health issues like obesity.
However, we believe there are some inaccuracies in Mr. Ardan’s discussion around public sentiments. In sum, as opposed to his claims, we believe that when dealing with scientific issues, public sentiments should not be taken into consideration, while the SPS Agreement of the World Trade Organization (WTO) is structured to consider public sentiments in the context of “risk management” rather than risk assessment. In this article, we aim to critically examine Ardan’s arguments regarding the role that public sentiments should play in food safety regulations. Coincidentally, like Mr. Ardan, we are also undergraduate students specializing in international trade law, including various SPS issues, at the School of International Relations of University of Shizuoka, Japan. We are grateful for the opportunity through this magazine to engage in discussions on this important theme with like-minded students from other countries.
Distinction between Risk Assessment and Risk Management
In his essay, Mr. Ardan states as follows.
Despite the fact that it [the SPS Agreement] is a trade agreement, I contend that public perspectives and opinions matter, particularly in the context of scientific consensus. Science will be strongly justified when public sentiment contributes to the legitimacy of the science. The SPS Agreement’s technocratic nature of science may have resulted in the exclusion of public participation in the decision-making process for domestic measures.
In our view, however, his assertion that public perspectives and opinions are crucial in shaping scientific consensus may indicate a misinterpretation of the risk assessment concept within the SPS Agreement. Additionally, his argument that public participation is absent from the decision-making process in the SPS Agreement may also suggest a failure to grasp the concept of risk management within the Agreement.
In the SPS Agreement, WTO Members adopting SPS measures are required to base them on a risk assessment. A risk assessment for food safety is defined in the Agreement as “the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs”. For this purpose, it is required to assess how much of the food hazards at issue the average consumer is exposed to through regular diet and the probability of adverse health effects arising from the identified level of exposure. Thus, risk assessment is a scientifically driven process, and the SPS Agreement is not designed to consider “public perspectives and opinions” during this process, nor should it be considered there.
On the other hand, risk management involves examining how health risks identified through risk assessment should be managed, by what policy means, and to what extent. In such examinations, a policy objective needs to be set regarding how much the health risk in question should be protected, or in other words, to what extent the health risk can be acceptable. This is defined in the SPS Agreement as the “appropriate level of protection (ALOP)” or “acceptable level of risk”. WTO Members are required not to make their SPS measures more trade-restrictive than necessary to achieve their ALOP. In other words, if the policy objective (i.e., ALOP) can be achieved by measures that are less trade-restrictive, the WTO Agreement, being a trade agreement, requires that Members prioritize such measures.
According to Mr. Ardan, as noted before, public participation is excluded from the decision-making process for adopting SPS measures in the SPS Agreement. However, this observation appears to overlook the reality of how the ALOP as a policy objective in risk management is set. ALOP is a policy decision about how much health risk from consuming import food a WTO Member is willing to accept. And such a policy decision is strongly influenced by public sentiments or participation. Even if the scientific risk is considered low, the citizens of the Member may have an aversion to the risk for various reasons (such as national character, traditions, or the influence of media). In that case, governments may adopt extremely strict SPS measures to address such scientifically low risk in response to the public sentiments.
In sum, in contrast to risk assessment, it is normal for Members to actively consider public sentiments when setting their policy goals (i.e., ALOP) in the process of risk management. In WTO jurisprudence on SPS cases, the panels and the Appellate Body have persistently found that it is the prerogative of the importing Member to determine its ALOP.
The Issue of Obesity in the SPS Agreement
Moreover, understanding that the SPS Agreement excludes the perspective of public sentiments, Mr. Ardan suggests that as a consequence of such exclusion, the SPS Agreement may not effectively address chronic health issues like obesity. Then, he goes on to offer very intriguing suggestions regarding how the issue of obesity should be addressed within the SPS Agreement. While not explicitly stating so, he seems to suggest that the risk of obesity due to “[e]ating too much ‘safe’ food” should also be taken into account in a risk assessment in his writing below.
The exclusion of public and public health sentiments has also contributed to the gap in long-term health issues, such as obesity. This is in line with how the SPS Agreement ensures a health standard that addresses long-term health issues. Eating too much ‘safe’ food can lead to health problems.
However, this view is difficult to embrace. If the overconsumption of “safe food” leading to obesity is considered as a health risk associated with that food, then virtually all food in existence would be evaluated as having health risks. This is because overeating any kind of food leads to weight gain. As a result, WTO Members would likely take import restrictions on “safe food” based on the risk of obesity due to overeating.
For example, using butter as an example makes the shortcomings in the above discussion more evident. Butter is primarily composed of fat, and it is undisputed that excessive consumption of butter can lead to obesity. Butter itself is generally considered a safe food and thus is sold in markets worldwide based on such assessment. However, following Mr. Ardan’s argument, even such a safe product like butter could be evaluated as having a health risk of obesity due to overconsumption through a risk assessment, and WTO Members would be entitled to take import restrictions on butter under the SPS Agreement.
The fundamental question arises as to whether it is appropriate to address the issue of obesity through trade measures in the first place. Since the cause of obesity is clearly overeating and lack of physical exercise, we believe that instead of resorting to import restrictions on high-fat foods, governments should first engage in educational campaigns to emphasize the importance of dietary control and exercise their own citizens. In such circumstances, allowing WTO Members to take import restrictions of food are unlikely to make a significant contribution to the actual resolution of the obesity problem.
Conclusion
This essay revisits Dollin Ardan’s view on public sentiments in the WTO’s SPS Agreement, particularly highlighting the distinction between risk assessment and risk management. Contrary to Ardan’s argument, we emphasize that while risk assessment is strictly scientific and should not involve public opinions, risk management does allow for such considerations, particularly in determining an ALOP of importing Members. It should be emphasized that the accurate assessment of how public sentiments are considered within the SPS Agreement cannot be done without having such a conceptual distinction in mind. Furthermore, this essay discusses that allowing WTO Members to take import restrictions on scientifically safe food based on the risk of obesity due to overeating would lead to unjust conclusions. It is noted that issues of chronic diseases like obesity would be more effectively addressed by other domestic policies than trade measures.
*Milly Ishihara: I’m currently a sophomore at the University of Shizuoka, Japan, majoring in International Relations with a keen interest in Development Aid. I plan to specialize in International Law starting from my junior year onwards.
