WTO SPS Agreement: Exporia's Plea Against Corn Beer Ban

Introduction and Overview of Violations

Following the unexpected ban of Exporia's corn beer by Imporia, Exporia hereby outlines its concerns regarding the action and its associated implications. Exporia states that Imporia erred in imposing the ban, which constitutes a violation of the Agreement on the Application of Sanitary and Phytosanitary Measures (the "SPS Agreement") in general. Specifically, Imporia violated Articles 3.3, 5.1, and 5.2 of the SPS Agreement.

With respect to the general violation of the SPS Agreement, Exporia argues that Imporia erred because the SPS Agreement directly acknowledges that a Member has the right to choose an appropriate level of sanitary and phytosanitary protection. In addition, Article 3.3 provides that where international standards have been set, specific guidelines govern the exercise of that right, as established in the Hormones case.¹ Exporia asserts that Article 3.1 does not grant Imporia unrestricted discretion when read in isolation, but rather provides options that a Member must adhere to when international standards exist.

With regard to the violation of Article 5.1 of the SPS Agreement, Exporia opposes Imporia's claim that one of the flavorings used in Exporia's beer — namely hops — was infected during winter by the Two-spotted Spider Mite (Tetranychus urticae). Exporia notes that Imporia conducted studies on the beer and the pests affecting the starches and flavorings used in beer production. 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), both of which were inconclusive with regard to any causal relationship between the poisonous saliva of the Spider Mite and localized paralysis.

Exporia further argues that the ban discriminates against Exporia-produced beer in violation of Article III of the General Agreement on Tariffs and Trade ("GATT").² Exporia also argues that GATT Article XX, which lists exceptions for trade-distorting behavior under certain circumstances, does not provide Imporia with ultimate justification for the ban. Imporia's ban 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 where they are genuinely intended to protect human health; it does not apply in this case because Imporia unjustifiably and arbitrarily invokes it to discriminate against Exporia's beer.³ Imporia unfairly discriminates against Exporia's beer given that both FAO and WHO studies found no causal relationship between the poisonous saliva of the Spider Mite and localized paralysis.

Food-Borne vs. Pest Risks

Exporia recognizes the importance of human and animal safety as well as phytosanitary protection. However, Imporia's argument unfairly challenges Exporia's food safety evaluation system. Both the WTO and FAO have conducted pest risk analyses consistent with the SPS Agreement. A central requirement of the SPS Agreement is that measures for the protection of plant, animal, and human life must be based on accepted international risk assessments that take into account scientific guidelines and evidence.

Specificity Test in Risk Assessments

According to the specificity test in risk assessment, the results of the tests conducted by Imporia on Exporia's corn beer were inconsistent. The test results indicating that the saliva injected by the Spider Mite into the hops used in flavoring was harmful to human health are flawed. The World Health Organization and the Food and Agriculture Organization conducted similar tests, and the results were inconclusive with regard to any causal relationship between the poisonous saliva of the Spider Mite and localized paralysis. It is therefore inappropriate for Imporia to impose the ban, as its assessment is one-sided and demonstrates clear bias.

Exporia asserts that a legitimate SPS objective requires giving the potentially affected Member an opportunity to present scientific evidence. Exporia therefore submits that Imporia should provide new evidence outlining detailed measures aligned with internationally accepted standards.

Exporia contends that Imporia's action is malicious and that the 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. Furthermore, Imporia did not ensure that its SPS measures were based on proper risk assessments, causing its allegations to lack the specificity required for risk assessment of the allegedly contaminated corn beer. The specificity of Imporia's allegations is therefore vague, as Imporia has not outlined its inspection methods or demonstrated the presence of contamination in Exporia's corn beer. Additionally, Imporia's methods of studying and evaluating the facts and opinions relating to the allegations are unacceptable and incorrect.

The scientific studies put forward by Imporia as evidence should be dismissed on the grounds that they demonstrate only the harmful effects of Spider Mites on beer consumers in general, rather than the specific beer content manufactured by Exporia or the production methods that could plausibly cause paralysis upon consumption.