Following the unexpected ban of Exporia's corn beer by Imporia, Exporia in this document outlines concerns regarding the action and associated implications. Exporia hereby states that Imporia erred in the imposition of the ban. This is in violation of the Agreement on the Application of Sanitary and Phytosanitary Measures (the "SPS Agreement") in general; Imporia violated Article 3.3, 5.1, and 5.2 of the SPS Agreement.
In respect to the violation of the SPS Agreement in general, Exporia argues that Imporia erred since the SPS Agreement directly acknowledges that a Member has the right to pick an appropriate level of sanitary and Phytosanitary protection. In addition, Article 3.3 provides that in cases where an international standard are set, there are specific guidelines that govern the right to choose exercise as presented in the Hormones case[footnoteRef:1]. Exporia asserts that Article 3.1 does not give Imporia a free hand in reading in isolation, but provides options that a Member should adhere to when international standard exist [1: Appellate Body. EC Measures Concerning Meat and Meat products. Geneva, 1998 .]
With regard to the violation of Article 5.1 of the SPS Agreement, Exporia opposes the fact that Imporia claims that one of the used flavorings in Exporia's Beer, namely the hops, was infected during winter by the Two-spotted Spider Mite (Tetranychus urticae). Exporia notes that Imporia conducted some studies on the Beer and the pests affecting the starches and flavorings used in beer. The findings of these studies have been countered by similar studies conducted by the Food and Agriculture Organization (FAO) and the World Health Organization (WHO) that were inconclusive with regard to the causality between the poisonous saliva of the Spider Mite and the localized paralysis.
Nonetheless, Exporia argues that the ban discriminates against Exporia-produced Beer thereby violating Article III of the General Agreement on Tariffs and Trade ("GATT").[footnoteRef:2] Exporia further argues that GATT Article XX, which lists exceptions for trade distorting behavior in certain circumstances, does not provide Imporia with the ultimate justification for the ban. Imporia's ban on Exporia's Beer is inconsistent with World Trade Organization member obligations as stipulated in GATT Articles III and XX. Article XX (b), allows for limited exceptions to discriminatory trade policies only if they are meant to protect human health, it however does not apply in this case because Imporia unjustifiably and arbitrarily uses it to discriminate against Exporia's Beer.[footnoteRef:3] Imporia unfairly discriminates against Exporia's Beer as Both Food and Agriculture Organization (FAO) and the World Health Organization (WHO) studies did not find any relationship between causality and the poisonous saliva of the Spider Mite and the localized paralysis. [2: General Agreement on Tariffs and Trade. Sanitary and phytosanitary measures. New York: The World Trade Organization, 2012.] [3: ibid]
Food-borne vs. pests' risks
Furthermore, Exporia understands the concern of human and animal safety as well as Phytosanitary. The argument by Imporia unfairly challenges Exporia's food safety system evaluation. Both the WTO and FAO have conducted pest risk analysis and this is consistent with the Sanitary and Phytosanitary measures (the SPS Agreement). The important aspect of the SPS Agreement is that measures for the protection of plant, animal as well as human life based on accepted international assessment of risk considering scientific guidelines and evidence.
Specificity Test in Risk Assessments
According to specificity test in risk assessment, the results of the tests conducted by Imporia on Exporia's corn beer were inconsistent. The tests results indicating that the saliva injected by Spider Mite in the hops used in flavoring was harmful to human health are flawed. The World Health Organization as well as the Food Agricultural Organization had conducted similar tests and the results were inconclusive with regard to the causality between the poisonous saliva of the Spider Mite and the localized paralysis. It is therefore inappropriate for Imporia to impose the ban since their assessment is one sided and an outright show of biasness.
Exporia asserts that there exists a legitimate SPS objective of providing a chance for the potentially affected Member to show scientific evidence. Exporia therefore, submits that Imporia submits new evidence outlining detailed measures aligned to internationally accepted standards.
Exporia allude that Imporia's action is malicious and imposition of the ban is misleading. Imporia's risk assessment is inconsistent and falls short of meeting the requirements of Article 5.2 of the SPS Agreement. In addition, Imporia did not ensure that their SPS measures were based on risk assessments making their allegations to lack specificity in risk assessment of the allegedly contaminated corn beer. This makes the specificity of Imporia's allegations vague, as they have not outlined their inspection methods and the availability of contamination in Exporia's corn beer. Additionally, Imporia's mode of studying and sorting out facts and opinions relating to the allegations are unexceptionable and incorrect.
The specificity of Imporia's scientific studies used as evidence should be dismissed. This is because they show only the harmful effect of the Spider Mites to the beer consumers but not the beer content specifically manufactured by Exporia and the production methods that are likely to bring about paralysis when the beer is consumed.
Risk Assessments and the Precautionary Principle
Article 2.2 and Article 5.1 outline considerations undertaken in the measurement of risks relating to potential harmful products.[footnoteRef:4] These articles observe that an evaluation of risk is (at least with respect to risks to human life and health) a scientific assessment of data and factual studies in a dispute, but is not a policy exercise involving social value judgments made by political bodies. Article 5.1 of the SPS Agreement requires a scientific process aimed at providing basis for the sanitary measure a member should take. It outlines the scope of a risk assessment including quantitative analysis by the empirical or experimental laboratory methods commonly associated with the physical sciences. Nonetheless, all the factors enumerated in Article 5.2 need to be considered including the relevant process and the production method as well as relevant inspection, sapling and testing methods need to be taken into consideration. The risk evaluated under article 5.1 includes risk ascertainable in a science laboratory operating under strictly controlled conditions, as well as risk in human societies, which possess potential for adverse effects on human health. [4: The World Trade Organization . Agreement on Sanitary and Phytosanitary Measures. New York: The World Trade Organization, 2012.]
The Precautionary Principle
Exporia asserts that the precautionary principle is relevant and a vital aspect of international law. It is not only useful in risk management, but in assessment as well. Exporia further state that Articles 5.1 and 5.2 as well as the Annex A.4 of the SPS Agreement do not prescribe a specific type of risk assessment, rather they simply point at factors that need to be considered.[footnoteRef:5] In discussing this dispute, Article 5.7 establishes a stringent test with four risk assessment and SPS requirements that Imporia should meet in challenging the corn beer. Imporia does not fully meet these requirements as prescribed and therefore rendering their allegations against Exporia's corn beer inconsistent. [5: ibid]
International Standards vs. National Standards
According to WTO rules, members are prohibited from applying mediocre standards in comparison to the stipulated international standards. The tests carried out by FAO and WHO are not consistent with the test carried out with the national authority in Imporia. This inconsistency raises concerns as to technicalities involved in both the processes and the procedure that represents the international standard. Common knowledge suggest that WHO and FAO standards are fully representative of internationally set requirements. It is also true that the instruments used by these two organizations are scrupulously and meticulously operated to deliver reliable and valid outcome of any test. It is therefore Exporia's concern that Imporia's standards are not at par with the recognized international standards in regard to the requirements of Sanitary and Phytosanitary Measures.
The inconsistency between the two results indicates that Imporia has breached the international standard regulation that requires national standards to be purely based on international standards. Imporia solely relies on the results outlined by the National Authority on the Quality of Beverages (NAQB).
Emporia asserts that the results of NAQB were bureaucratic resolutions aimed at benefitting Imporia and were unfair and should have been subjected to International standards to ascertain and their reliability and validity. Imporia decision to ban Exporia's beer was inconsistent with the SPS Agreement; a prejudice to Exporia's beer which is inconsistent with the SPS Agreement. This renders Imporia's decision baseless in accordance to existing international standards under the SPS Agreement.
In addition, the SPS Agreement encourages members to base their measures on international standards, guidelines and recommendations, in cases of disagreements on products that affect human life. Imporia thus totally failed to implement this regulation, which could facilitate harmonization and application of common SPS procedures. Harmonization of SPS measures with international standards facilitates the achievement of food safety, animal and plant health protection without restricting the use of international trade.