Food Laws & Policies

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Emerging Food Regulations Market and Challenges for Agribusinesses and Food Industries

Vijay Sardana & Priyanka Sardana

This article appeared in Processed Food Industry Magazine

New Food Safety and Standards Act of India is now notified and work on formulation of regulations is almost over. Readers are requested to go through the articles carefully so that you can actively participate in the rule making process to protect their legitimate interest keeping in mind overall objective to deliver safe and wholesome foods to consumers without compromising on other important issues like environment and workers and animal welfare.

Growth of agriculture and food trade around the world has increased the chance of spread of infection and contamination around the world. The recent incidences of Bird Flu, Swine Flu and Melamine contamination has raised these issues to a higher level.

Sanitary (human and animal health) and phytosanitary (plant health) standards are necessary to ensure that food is safe for consumers, to prevent the spread of pests and diseases among animals & plants and to ensure fair practices in trade.

In recent years the world food trade has been profoundly altered with the emergence of WTO and other international treaties and Free Trade Agreements (FTAs). They provide a more precise framework for trade between countries, and also define the rights and the obligations of all partners involved in the trade. These agreements are also served to strengthen the status of institutions like the Codex Alimentarius Commission, Office of Animal Health and the International Plant Protection Convention since these were used as a basis for harmonization to facilitate world trade.

The WTO, Uruguay Round Agreements and Agriculture

The Uruguay Round of Multilateral Trade Negotiations, which was concluded in 1994, established the World Trade Organization (WTO) to replace the General Agreement on Tariffs and Trade (GATT). The Uruguay Round negotiations were the first to deal with the liberalization of trade in agricultural products, an area excluded from previous rounds of negotiations. They also included negotiations on reducing non-tariff barriers to international trade in agricultural products and concluded with two binding agreements:

1. The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)
2. The Agreement on Technical Barriers to Trade (TBT Agreement).

Members of WTO will apply these agreements and the general terms are also applicable to countries that are not WTO members.

Agreement on the Application of SPS Measures

The Agreement on the Application of Sanitary and Phytosanitary Measures confirms the right of WTO member countries to apply measures necessary to protect the life and health of humans, animals and plants. Agreement on the Application of Sanitary and Phytosanitary Measures (SPS):

• ..says that measures (laws, regulations, and procedures) adopted by governments to protect animal, plant, or human health should not be maintained without sufficient scientific evidence.
• ..requires that WTO members base their national requirements on international standards, guidelines and other recommendations adopted by the FAO/WHO Codex Alimentarius Commission, the IPPC (International Plant Protection Convention (IPPC) and International Office of Epizootics where they exist.

Important Clauses of SPS Agreements:

SPS agreement sets rules in an area previously excluded from GATT disciplines. The purpose of the SPS Agreement is to ensure that measures established by governments to protect human, animal and plant life and health (in the agricultural sector only) are consistent with requirements prohibiting arbitrary or unjustifiable discrimination in trade between countries where the same conditions prevail.

1. It also attempts to establish that these measures are not disguised restrictions on international trade.
2. The SPS requires that, with regard to food safety measures, WTO members base their national requirements on international standards, guidelines and other recommendations adopted by the FAO/WHO Codex Alimentarius Commission (CAC), where they exist.
3. This does not prevent a member country from adopting stricter measures, if there is scientific justification for doing so or if the level of protection afforded by the Codex standard is inconsistent with the level of protection generally applied and deemed appropriate by the country concerned.
4. The SPS Agreement covers all food hygiene and food safety measures including control of pesticides and other chemicals. In addition, it covers plant quarantine measures.
5. The SPS Agreement recognizes the IPPC (International Plant Protection Convention) as the relevant international organization responsible for the establishment of international standards for phytosanitary measures and encourages countries to base their phytosanitary measures on IPPC standards, guidelines or recommendations to promote global harmonization of phytosanitary measures in trade.
6. The SPS Agreement recognizes the International Office of Epizootics as the organization to set benchmarks for meeting SPS requirements related to animal health. The WTO Committee on Sanitary and Phytosanitary Measures guides this work.
7. The SPS Agreement states that any measures taken that conform to international Codex Standards, guidelines or other recommendations are deemed to be appropriate, necessary and non-discriminatory. Furthermore, the SPS Agreement calls for a programme of harmonization of national requirements based on international standards

Agreement on Technical Barriers to Trade (TBT)

1. Agreement on TBT is designed to check deception and economic fraud.
2. Agreement on TBT seeks to ensure that technical regulations and analytical procedures for assessing conformity with technical regulations and standards do not create unnecessary obstacles to trade.
3. The Agreement on Technical Barriers to Trade was established with the objective of preventing the use of national or regional technical requirements, or standards in general, as unjustified barriers to trade.
4. The TBT agreement covers standards relating to all types of products including industrial and agricultural products. Please note, what TBT Agreement does not cover are food standards related to sanitary and phytosanitary measures.

Major Clauses of TBT agreement covers the following aspects-

It includes numerous measures designed to protect consumers against deception and economic fraud. Examples of food standards covered by the TBT Agreement are those related to quality and labeling.

The TBT Agreement basically provides that all technical standards and regulations must have a legitimate purpose and that the impact or cost of implementing a standard must be proportional to the purpose of the standard. It also says that if there are two or more ways of achieving the same objective, the least trade-restrictive alternative should be followed.

The agreement also places emphasis on international standards and WTO members are obliged to use international standards or parts of these standards except where the international standard would be ineffective or inappropriate in the national situation.

It is also important to note that the TBT Agreement does not include a programme for harmonizing national standards.

Changing Food Regulations in India

When Government of India through Food Safety and Standards Authority under the Food Safety and Standards Act is in the process of developing food standards, it is important for all the stakeholders to know more about how standards are set globally. It is important for stakeholders to know what are the important provisions and criteria in food standards setting process.

Global Reference for Food and related Standards

The adoption of the SPS and TBT Agreements resulted in new emphasis and importance being placed on the work of Codex in establishing international food quality and safety standards.

Codex Alimentarius means a code of international food standards

The purpose of Codex is

1. To guide and promote the elaboration of definitions and requirements for foods and assist in their harmonization
2. To facilitate world trade
3. To promote consumer protection

What is Codex Alimentarius and how it functions?

The name Codex Alimentarius is taken from Latin and translates literally as “food code” or “food law”.

The Codex Alimentarius is a series of food standards, codes and other regulations adopted by the Codex Alimentarius Commission (CAC) that countries could use as models in their domestic food legislation and regulations, and which could be applied to international trade. Codex provides the assurance that any foods produced according to its codes of hygienic practices and complying with its standards are safe and nutritious and offer adequate health protection.

The CAC was created in 1962 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Its main purpose is was to promote consumer protection and to facilitate world trade in foods through the development of food standards, codes of practice and other guidelines. Since its inception, the CAC has been responsible for implementing the Joint FAO/WHO Food Standards Programme. The CAC is an intergovernmental body with a current membership of more than 180 member governments. Membership is open to all Member Nations and Associate Members of FAO and WHO. In addition, observers from international scientific, food industry, food trade and consumer associations may attend sessions of the Commission and of its subsidiary bodies. While observer organizations can fully participate in the proceedings of the meeting, by statute, only Member governments can participate in any decision process.

An Executive Committee, six Regional Coordinating Committees and a Secretariat assist the Commission in administering its work and other activities. The work of the CAC is divided between two basic types of committees. The first type deals with general subject matter(s) that cuts across all food classes or groups. The work of the second type of committee, the Codex Commodity Committees, is specific for foods within a class or group. In addition, there are ad hoc Intergovernmental Codex Task Forces, which were established to undertake specialized tasks. For example, the 23rd Session of the CAC was held to develop standards, guidelines and recommendations for foods derived from biotechnology, for animal feeding and for fruit juices.

There are nine general subject matter committees, each with different responsibilities. These Committees deal with matters such as hygiene, veterinary drugs, pesticides, food additives, labeling, methods of analysis, nutrition, and import/export inspection and certification systems. For example, one Committee is responsible for developing standards, recommendations and guidelines related to microbiological contamination (Codex Committee on Food Hygiene). This Committee also develops general hygienic (sanitation) practices and conditions for food manufacturing, processing, production, handling, storing and transporting. The subject matter committees interact with the Commodity Committees. For example, the Committee on Food Labeling proposes standards for labeling and for specific labeling requirements of commodities in co-operation with the specific commodity committees.

The second type of Committee is one that deals with a specific type of food class or group, such as dairy and dairy products, fats and oils, or fishes and fish products. There are 17 Committees on specific subsectors of food. Each works on a specific food or class of food. Since its beginning, the CAC has adopted more than 200 different standards for food in all of the main groups of food traded at the international level. For example the Codex Committee on Fresh Fruits and Vegetables has elaborated a number of standards for fresh fruits and vegetables that primarily address quality issues.

Codes of Practice provide guidance on acceptable manufacturing, food processing and handling practices during production, transport and storage. The CAC has elaborated various codes. Some of these have a general application across food product classes or groups, while others are specific for certain commodities or foods. These Codes serve as a means of providing recommendations to producers and to government regulatory organizations on specific Good Manufacturing Practices (GMPs) for the commodities they address. These Codes, when used appropriately, can serve to enhance compliance with Codex standards and international trading requirements.

Related to contaminants, CAC has established guidelines for the maximum tolerable levels for 25 common industrial and environmental contaminants of foods. Food additive evaluations have resulted in establishing acceptable use levels (with no appreciable health risk over a lifetime) for 1300 additives used in food. The review of pesticides for approved use in agricultural pest control resulted in the evaluation of 197 pesticide chemicals, and establishing 2516 maximum residue levels for these pesticides in various foods. All Codex standards are developed according to the same procedure. The CAC decides that a standard should be developed and determines which subsidiary body should undertake the work.

Subsidiary bodies of the Commission also may make the decision to elaborate standards, subject to the approval of the Commission or the Executive Committee. The Secretariat of the Commission then arranges for the preparation of a “proposed draft standard” which is circulated to the Member countries for comments. The subsidiary body reviews and revises the “proposed draft standard” in light of the comments received, and then may present the text to the Commission as a “draft standard.” If the Commission adopts the “draft standard,” it is again sent to Member governments for further comments. In the light of the comments received and after further consideration by the subsidiary body concerned, the Commission reconsiders the draft and may adopt it as a “Codex standard”.

Need for Harmonization

Harmonization means establishing national measures consistent with international standards, guidelines and recommendations.

To facilitate international trade, it has been necessary for efforts to be made to harmonize food standards. Those involved in harmonization efforts recognized that countries have the right to adopt standards they feel are appropriate to protect human, animal and plant health and the environment. They also have the right to take the steps necessary to assure these standards are met. However, preventing these standards from becoming barriers to trade is important to promote trade between countries.

The TBT Agreement does not specifically name the international standard setting bodies whose standards are to be used as benchmarks for judging compliance with the provisions of the Agreement. However, the SPS Agreement specifically names the CAC as the only recognized international food standard setting body. The fact that the Codex Alimentarius is designated in the SPS Agreement indicates the value given to the Codex Standards in the negotiations of the Agreements and this spills over into the areas covered by the TBT Agreement.

National regulations that are consistent with Codex meet the requirements of SPS and TBT Agreements. When joining the WTO, countries agree to adhere to a number of agreements including the SPS and TBT Agreements. These two agreements set the standards necessary to assure the regulation of food quality and safety in international food trade. WTO Member governments agree to use Codex standards as their reference. As Codex standards have the full support of the SPS Agreement that advocates them as the basis for all national standards, they play a significant role in the harmonization of national food safety standards and may be used as a reference point for resolving trade disputes between WTO Members.

What Indian food Industry should do?

Readers are advised to keep close watch on developments and notifications issued by Food Safety and Standards Authority and send their comments so that while finalizing the views your views can be considered by the authority. This will help in developing effective food regulatory system in India, which will help Indian food industry to grow in global markets besides improving the market share by winning consumer confidence in domestic food market.

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