Q12- SPS

Question 1

The obligation to use a standard bottle is WTO consistent?

Answer 1

NO, reasons:
(1) Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health(art.2.1)

(2) But the standard must apply only to the extent that:
- is necessary to protect human, animal or plant life or health.
- is based on scientific principles
- is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5. SPS (art.2.2)

Question 2

Does the standard fit the necessary standard in this case?

Answer 2

• Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3. And Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994. (art.3 1+2)
• In this case, we do not know if the government standard is based on international standard or conform to international standard. Thus, we do not know if the standard bottle taken by government is to the extent necessary to protect human health or just something does not matter.
• Even if there is sufficient scientific evidence or it conforms with the international standard, in this case, the government does not check the production process, this causes doubt to whether the government indeed want to protect the human health or want something else (like restriction on international trade)

Question 3

Is the ban importation consistent with WTO obligations?

Answer 3

No, reasons:
(1) Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health (art.2.1)

(2) Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade. (art 2.3 national treatment)
(3) In this case, the government did not ban the domestic selling of alcoholic products that contain above 10% of alcohol in volume. But ban the importation of the similar type of the alcohol, this is in fact using the health consideration to disguise a restriction on international trade. Because there are always consumers who want to buy alcohol which contain above 10% of alcohol in volume, if there is no such import alcohol, then the consumer has to buy the domestic similar product, which cause a restriction on international trade.
(4) To avoid this measure to be WTO inconsistent, the government should also ban the domestic selling of alcoholic products that contain above 10% of alcohol in volume.