CommentaryJURIST Guest Columnist Mirriam Kutha is an LL.M. Candidate at the University of Arkansas School of Law, where she is specializing in agricultural and food law. Here she discusses the benefits of international harmonization of food trade standards…
It is not news that we are living in a globalized world. If you are looking for proof, you need not look further than your next meal to appreciate this fact. Food from all over the world finds its way to your dinner plate. The international food trade industry generates hundreds of billions of dollars per year, with billions of tons of food produced, marketed and transported.
Hundreds of countries engage in the international food trade, and each devises its own food laws and standards. What is regarded as “safe food” by Indian or Brazilian standards may not be considered “safe food” by Korean standards, or US standards for that matter.
Historically, the different sets of standards and food laws in different countries have given rise to non-tariff trade barriers. This variance in standards became a challenge to exporters and importers that were required to comply with a host of different regulations regarding numerous types of food products. This also created barriers for countries with agriculture-based developing economies that wished to gain access to international food markets in industrialized countries with very strict food safety standards. These compliance and access challenges have resulted in the expansion of the international food trade being seriously inhibited.
To bring some order to this bundle of conflicting standards, the UN’s Food and Agriculture Organization (FAO), in conjunction with the World Health Organization (WHO), established the Codex Alimentarius Commission in 1963. The Commission develops harmonized international food standards, guidelines and codes of practice to protect the health of consumers and to ensure fair trade practices in the food trade. The Codex Alimentarius, which is Latin for “book of food,” is a collection of internationally recognized standards, codes of practice, guidelines and other recommendations relating to foods, food production and food safety. Codex committees rely on the scientific advice provided by independent expert committees and ad hoc expert consultations established by the FAO and the WHO to develop standards.
The philosophy behind harmonization is based on the ongoing concern of national governments that food imported from other countries be safe for consumption. Consequently, governments of importing countries have introduced mandatory laws and regulations to ensure food safety. The development of new standards in the areas of food, animal and plant control, can give rise to obstacles in international food trade. Failure to reach a consistent and harmonized set of laws, regulations and standards within free trade agreements and World Trade Organization agreements could result in considerable economic repercussions for the trading countries.
To reach a common ground in international food trade and to promote growth in developing countries, standards must be adjusted to meet a middle ground. Increasingly strict laws benefit consumers in developed countries, as this generally translates into safer food systems, and controversy arises when countries are asked to loosen their standards to attain harmony with producers and exporters in the developing world. Unfortunately, policy in the US usually falls into the category of increasingly strict standards, as there are concerns that downwards adjustments may pose danger to American consumers. Furthermore, the US has been reticent to accept standards that conflict with its own standards and to trust other nation’s to enforce standards.
At first glance, it looks as if the American consumer is being disadvantaged by the harmonization of food standards. For instance, at its meeting in June of 1999, the Codex Commission unanimously approved an amended standard for natural mineral waters that permitted higher levels of lead and other contaminants than the US Food and Drug Administration (FDA) now allows. It also approved an international standard that does not require pasteurization of dairy products, even though the FDA usually requires the pasteurization of dairy products. However, a critical look at the role that harmonized standards play in relation to food imports reveals that American consumers’ interests are, in fact, being protected, albeit indirectly. It is undeniable that most Americans are increasingly consuming imported food. From seafood to juices, and the like, imported food is everywhere. While imported food products are subject to FDA inspection when offered for import at US ports of entry, due to inherent funding and staffing limitations, the FDA cannot practically inspect each and every facility in every country exporting food to the US to ensure its safety.
Apart from administrative deficiencies, it is also becoming increasingly difficult to trace the origin of food in cases of food borne disease outbreaks. This problem could have been solved by the Country of Origin Labeling (COOL) requirement, signed into law under Title X of the Farm Security and Rural Investment Act of 2002, which requires food retailers to inform their customers of the nation of origin for certain foods. However, this law does not cover all food imported into the US. If the food has been processed in a way that changes its character, then its packaging does not have to comply with the COOL requirement. Processed meat, for example, is exempted from the country of origin labeling requirement. This exemplifies the intrinsic complexities that go along with guaranteeing the safety of food, especially imported food. Ensuring food safety requires continuous monitoring of the food supply system from the farm to the table. The exporting country is in a much better position and better equipped to handle this task. As such, having an international commission, like Codex, to ensure the safety of food in international trade, goes a long way to protect consumers worldwide, and even in the US.
To adopt Codex standards, countries are required to have adequate food laws, as well as a technical and administrative infrastructure with the capacity to implement its standards and regulations to ensure compliance. By adjusting the safety standards upwards in countries that will eventually export food to the US, rather than the US adjusting its standards unilaterally, Codex is indirectly protecting American consumers, while aiding in the growth of developing economies. If the problem is solved before the food enters the US, it will offer greater protection to consumers. It makes a great deal more sense to ask exporting countries to upgrade their food standards and allow them to police the safety of their food exports domestically, rather than to burden the already over-stretched FDA or US Department of Agriculture with the oversight of food safety in foreign countries. After all, international food standards are not developed arbitrarily; they have a scientific basis and deserve some deference.
Mirriam Kutha is pursuing an LL.M. in Agricultural and Food Law at the University of Arkansas School of Law. She holds an LL.B. from the University of Malawi, where she was also an Assistant Lecturer in Law and a Senior Resident Magistrate.
Suggested citation: Mirriam Kutha, The Silver Lining in the International Harmonization of Food Standards, JURIST – Dateline, Apr. 16, 2012, http://jurist.org/dateline/2012/04/mirriam-kutha-food-law.php.
This article was prepared for publication by Emily Osgood, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
