STC Number - 184

China's AQSIQ official certification requirements for food imports (G/TBT/N/CHN/1209) (previously raised as Lack of transparency for certain SPS measures)

Maintained by: China
Raised by: Israel; United States of America
Supported by: Australia; Canada; Chile; Costa Rica; European Union; Guatemala; Japan; Korea, Republic of; Mexico; Norway; Singapore; Switzerland; Thailand
First date raised: March 2004 G/SPS/R/33, paras. 32-33
Dates subsequently raised: June 2016 (G/SPS/R/83, paras. 4.51-4.55)
March 2017 (G/SPS/R/86, paras. 3.44-3.49)
July 2017 (G/SPS/R/87, paras. 4.49-4.53)
November 2017 (G/SPS/R/88, paras. 3.59-3.62)
March 2018 (G/SPS/R/90, paras. 3.35-3.37)
July 2018 (G/SPS/R/92/Rev.1, paras. 4.64-4.72)
July 2019 (G/SPS/R/95, paras. 4.92-4.96)
Number of times subsequently raised: 7
Relevant documents: G/SPS/N/CHN/22; G/TBT/N/CHN/1209
Products covered:
Primary subject keyword: Other concerns
Keywords: Other concerns; Transparency; Certification, control and inspection
Status: Not reported
Solution:
Date reported as resolved:

Extracts from SPS Committee meeting summary reports

In March 2004, the United States expressed concerns over China's failure to notify nearly 60 regulations covering food, forestry and fishery products issued since 2002. Burdensome certification requirements for fresh, chilled and frozen aquatic products were imposed by AQSIQ Decree 31, which entered into force on 1 July 2003, but were not notified to the WTO. Despite holding bilateral consultations with China, no progress had been made on this issue. The United States urged China to comply with its SPS obligations and to notify new regulations so that Members had an opportunity to comment on them.
China stressed that it had notified 213 SPS measures since its accession and was committed in fulfilling its transparency obligations. The comment period was calculated from the day the Secretariat circulated the notification. There was no obligation to notify AQSIQ Decree 31 as it was an operational rule of a corresponding regulation that had already been notified to the WTO, and imposed no new technical requirements. However, in the interest of enhanced transparency, Decree 31 had been notified in August 2003 (G/SPS/N/CHN/22).

In June 2016, the United States reiterated its concern, first raised in March 2004, with China's lack of transparency for certain SPS measures. The United States recognized that China had been actively notifying the SPS measures of many of its agencies, and expressed appreciation for these efforts. However, recently many measures issued by some of China's principal regulatory agencies in relation to the implementation of China's 2015 Food Safety Law had not been notified. The United States indicated as an example a recent Chinese measure implementing the new official certificate requirement for imported foods, of which the United States had become acquainted through a letter sent by the Chinese General Administration of Quality, Supervision, Inspection and Quarantine (AQSIQ) to the United States embassy in Beijing on 9 May 2016. The United States urged China to notify this measure, as well as all SPS measures that could impact international trade, in order to allow its trading partners to comment on them, and to take these comments into account upon finalizing the measures. The United States again expressed appreciation to China for the substantive bilateral dialogue on transparency, and looked forward to further cooperation with China to improve food safety.
Australia reminded all Members that they should notify in accordance with their WTO obligations. While appreciating that it was sometimes difficult to determine whether a measure required notification or not, Australia encouraged Members, when in doubt, to notify.
The European Union supported the points made by the United States and Australia, and underlined its particular concern about the new Chinese certification regime. The European Union feared that this specific measure would not be justified by any risk assessment, as the products concerned (pasta, confectionary or baked products) were inherently safe, and would impose a disproportionate and unnecessary burden on the importing countries. The European Union looked forward to seeing the Chinese notification for this measure, and to work with China on this issue.
New Zealand shared the concerns of Australia, the European Union and the United States regarding China's lack of transparency, and especially highlighted Australia's more generic reminder to encourage all Members to notify their SPS measures. New Zealand insisted on the values of the notification system in allowing Members to comment and clarify measures, as well as exchange experiences. New Zealand wondered whether a lack of transparency in notifying SPS measures could be associated with a lack of experience with the notification system, and recalled the value of the mentoring system put in place some years ago, wherein developed Members helped developing Members to manoeuvre the notification system.
China responded that, from 2013 to 2015, it had submitted 494 regular SPS notifications, providing the 60-day comment period for all the notified measures. China explained that the example provided by the United States on the Official Certificate Requirements for Imported Food did not correspond to non-compliance with the notification requirement, as the Official Certificate Requirements had not been implemented, and the purpose of diplomatic letters was to inform trading partners and collect their comments in advance. China stated that the measure would be notified to the WTO, with the transitional comment period, after further evaluation. China additionally argued that many of its SPS measures criticized for not having been notified were in line with international standards, or did not have a significant effect on international trade, and thus in conformity with Annex B, paragraph 5 of the SPS Agreement. China further explained that according to its administrative legislation procedure, the notification to the WTO came after the online public comment period and first revision of a measure rather than at the same time, in order to provide the WTO with the measure in a more advanced stage. China reminded the United States of its lack of transparency, providing as an example the Seafood Import Monitoring Program published on the Federal Register on 5 February 2016 and which had not been notified to the WTO. China referred to data from the WTO SPS Information Management System (SPS IMS) indicating that the United States had submitted 317 regular SPS notifications between 2013 to 2015, among which only 15 provided for a 60-day comment period. A large number of the measures were notified, sometimes unjustifiably, as trade-facilitating, and therefore did not provide any comment period. China added that the United States seldom notified sub-federal laws or regulations, and thus violated transparency rules.

In March 2017, the United States reiterated its concern with China's lack of transparency for certain SPS measures. The United States expressed a particular concern with the lack of notification of China's measures related to the implementation of its 2015 Food Safety Law. Further, the United States underlined China's State Council publication on 19 October 2016 of the Revised Draft Implementing Rules for the 2015 Food Safety Law as well as the Chinese General Administration of Quality, Supervision, Inspection and Quarantine (AQSIQ) letter dated 25 April 2016, addressed to the United States embassy and other Diplomatic Missions in Beijing, regarding the new requirement for official certification of all food exported to China, with an attestation that the imported food meets Chinese laws, regulations, and standards, also known as "Announcement #327". The United States noted that this would be inconsistent with relevant Codex guidance, and would be a matter of concern under the SPS Agreement. The United States requested that China delay the envisaged enforcement date of October 2017of the new certificate requirement for imported foods, until the concerns of trading partners had been addressed.

The United States urged China to notify both the Revised Draft Implementing Rules and the AQSIQ certificate requirement to the WTO, and take its trading partners' comments into account before finalizing the measures. The United States asked that China notify all SPS measures that would have an impact on trade, including newly proposed and future measures that it would develop to implement the 2015 Food Safety Law. The United States expressed appreciation to China for the substantive bilateral dialogue, and looked forward to further cooperation with China to improve food safety in a transparent manner that was science-based and least-trade restrictive.

The European Union echoed the concerns regarding the notification of the new legislation development in China.

Japan shared the concern raised by the United States and the European Union, and insisted on the need for more information on such a requirement for new official certificates.

China responded that the Chinese government took transparency seriously, fulfilling its obligations under the SPS Agreement. China was among Members who had notified the largest number of SPS measures, and was the Member who had most frequently provided a 60-day comment period. Over the past three years, from 2014 to 2016, China had notified a total of 419 regular SPS measures to the WTO, providing the 60-day comment period for all the notified measures. With specific reference to the two food safety measures flagged by the United States, the European Union and Japan, China reported to the Committee that the competent authority of China had already extensively consulted with the relevant stakeholders, including with those from the United States, the European Union and Japan, and had reflected a number of comments in the revised rules. China commended the active effort of the United States, the European Union and Japan in providing comments in the public consultation process. China reported that it would soon notify the food imports certificate requirements, and that the draft Implementing Rules of the Food Safety Law had been placed on the 2017 legislative agenda of the State Council of China, with ongoing consultations.

China highlighted that transparency was an important obligation shared by all WTO Members. China commented on the lack of transparency by the United States. Referring to data from the WTO SPS Information Management System (SPS IMS), it noted that the United States had submitted 110 regular SPS notifications from 2014 to 2016, among which only 11 provided for a 60-day comment period. China further noted that a large number of the measures were notified as trade-facilitating, often unjustifiably, and did not provide any comment period. China added as a systemic issue that the United States did not notify the acts enacted by its Congress, for example the US Food Safety Modernization Act, and seldom notified sub-federal laws or state regulations. Finally, China encouraged more discussions with the relevant Members with a view to further improving transparency in the SPS area.

In July 2017, the United States reiterated its concerns over the official certificate requirement for imported foods, originally issued by China's General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) in April 2016, recalling its transparency concerns regarding the lack of notification of this measure. The United States appreciated China's notification as G/TBT/N/CHN/1209 on 19 June 2017, which indicated under description and objective of the measure, the protection of human health and food safety. Therefore, the United States reiterated the request that China notify its measure to the SPS Committee as well. The measure – entitled AQSIQ Food Bureau's Correspondence [2017] No. 83 in the TBT notification – would require a range of imported food products, including low-risk processed, shelf-stable foods, to be accompanied by official certificates. The United States noted that AQSIQ Correspondence No. 83 would apply only to imports and would require official certification of low-risk foods on a shipment-by-shipment basis. Correspondence No. 83 indicated that the official certificate would need to include product and shipment details which were outside the purview of the United States Food and Drug Administration, a requirement which would go into effect on 1 October 2017.

Given the impact these requirements could have, the United States enquired about (i) the scope of products covered by this measure, noting the importance of using the Harmonized Commodity Description and Coding System developed by the World Customs Organization, and to clarify that duplicate official certificates would not be required; (ii) the scientific justification of the requirements, including data documenting food-borne hazards associated with imported shelf-stable processed foods; how such documented hazards would pose a human health risk to consumers, and evidence showing that shipment-by-shipment official certification was appropriate and proportionate to address the risk; (iii) considering replacing the official certification requirement with a less trade restrictive measure that recognized the primary responsibility of food business operators for compliance, which would be consistent with domestic Chinese requirements, as well as with Codex principles and guidelines; and (iv) the measures that would require the domestic certification of foods manufactured, processed, stored, transported and exported under the supervision of its domestic competent authority. The United States urged China to delay the implementation of this measure to allow for the discussion and resolution of these trade concerns. Finally, the United States appreciated China's willingness to cooperate and they looked forward to a continued engagement.

Israel shared the concerns of the United States, mainly the significant and unnecessary barriers to trade the measure would cause. Israel hoped that, in addition to the notification to the TBT Committee, China would follow with a notification to the SPS Committee; and requested China to elaborate on the scientific justification and international standards their work was based on and the proportionate level of risk presented by the targeted products. Israel thanked China for its willingness to engage bilaterally.

Australia, Canada, Chile, Costa Rica, European Union, Japan, Mexico, Norway, Singapore, and Switzerland shared the concerns expressed by the United States and Israel. They underlined, inter alia, their concerns over the lack of a notification to the SPS Committee, the scope of the products affected by this measure (including low-risk products), the inconsistency with Codex standards, the possible duplication of certification, and the unrealistic implementation date of 1 October 2017. In particular, the European Union underlined the ambiguity of some of the provisions and the difficulties this would pose for custom authorities. Several Members expressed appreciation of China's constructive bilateral meetings and clarifications.

China explained that in recent years it had observed a sustained and fast growth of imported food, becoming the largest importer of food and agricultural products. Imported food and agricultural products accounted for around 7.5% of its domestic food consumption, imported dairy products for 17.1% and edible oil for 29.3% of domestic food consumption. China underlined the importance of strengthening cooperation on food safety and therefore drafted the measure at issue. China also noted that the requirement of official certificates did not go against international conventions, and clarified that certificates were not required to demonstrate that the imported food completely met Chinese regulations, but only to prove that the production, processing, storage, transportation and export processes of the food had been under the effective supervision of the competent authorities of exporting countries. In addition, China explained that the certificates could be issued by the competent authorities of exporting countries or regions, or their authorized institutions. China stated that the notified measure had included Members' suggestions and comments and welcomed further feedback on the notification to the TBT Committee (G/TBT/N/CHN/1209). China explained that the certificates mentioned in the notification included the bilateral sanitary certificate and phytosanitary certificate, which meant that the imported food already covered by these certificates did not require a new certificate. China looked forward to a strengthened communication and cooperation with Members.

In November 2017, the United States reiterated its concern on China's proposed official certification requirements for imported food. The United States thanked China for its bilateral engagement and for its notification to the WTO of the two-year transitional period for the implementation of the official certification requirement, delaying its entry into force to 30 September 2019. The United States noted that though the notification had been made to the TBT Committee, it indicated the protection of human health and food safety in the description and objective of the measure. The United States therefore requested China to keep the SPS Committee abreast of the measure's developments. The United States also requested a clarification of the scope of the measure, given that AQSIQ Food Bureau's Correspondence No. 83 appeared to require a wide range of imported food products to be accompanied by official certificates on a shipment-by-shipment basis, including processed, shelf-stable food, which would pose little to no risk to food safety and human health. The United States argued that China's proposed requirement was inconsistent with Codex guidelines and principles. Finally, the United States welcomed the clarifications provided by China and the opportunity to work with China on the matter.

Singapore supported the concern and added that it looked forward to receiving responses to the questions posed to AQSIQ.

Japan, the European Union, Guatemala, and Thailand also shared the concern of the United States and urged China to provide timely and appropriate information on the revised draft and its implementation, noting that the measure would be disproportionate, go beyond international standards, and be trade disrupting.

China responded that it had carefully considered the comments submitted by Members and had decided to provide a unified transitional period of two years until 30 September 2019, as notified to the WTO. China explained that the measure had been drafted taking into account the practical situation of other Members, and hoped that Members would provide a sample of certificates attached to food exported to China as soon as possible. The comments received would be delivered back to the capital for consideration.

In March 2018, the United States reiterated its concern on China's proposed official certification requirements for imported food. The United States thanked China for its bilateral engagement and for its notification to the WTO of the two-year transitional period for the implementation of the official certification requirement. The United States welcomed the clarifications provided by China and requested confirmation that China was considering revision of the measure in the coming months. The United States further requested information on the associated timelines for such a revision and urged China to notify any revision to the SPS Committee. The United States highlighted the wide range of imported food products covered by the measure, including processed, shelf-stable food, which would pose little to no risk to food safety and human health. The United States also noted the potential administrative and financial burden to both exporting countries and China, due to the measure. The United States recalled the existing Codex guidelines and principles on official certification requirements and urged China to consider aligning its measure to these international guidelines. Finally, the United States welcomed the opportunity to work further with China on the matter.

The European Union, Guatemala, Japan, Korea, Singapore and Thailand also shared the concern of the United States and urged China to provide information on the revised draft and its implementation, noting that the measure would be disproportionate, go beyond international standards, and be trade disrupting. Guatemala further looked forward to receiving a response to its questions submitted in August 2017.

China recalled its response in previous SPS Committee meetings, highlighting that it had carefully considered the comments submitted by Members and had decided to postpone enforcement of the measure to 1 October 2019, as notified to the WTO. China explained that the measure had been drafted taking into account the practical situation of other Members, and further indicated that it would take into consideration all reasonable comments from Members, with a view to adjust the measure and minimize negative trade effects. Finally, China invited Members to coordinate with Chinese authorities to continue discussions on the technical details.

In July 2018, the United States appreciated China's September 2017 announcement of the two-year transitional period before enforcement of the official certification requirements. The United States understood that China was planning further changes and clarifications to the measure and requested confirmation of China's intention to notify a revised measure to the WTO SPS and TBT Committees concurrently. The revised notification should identify the risk to be mitigated by the certification requirements, and clarify the scope of products subject to certification. The United States further reiterated its concern on several issues, including the scope of the products covered by the measure, which appeared to include processed, shelf-stable food that ordinarily posed little or no risk for food-borne illness; the lack of scientific justification for the requirement, or evidence that official certification would address an identified public health concern; that the requirement appeared to deviate from the relevant Codex guidelines and principles on official certification requirements; and that there appeared to be no requirements for domestic production corresponding to those imposed on imports. Finally, the United States expressed its willingness to continue to cooperate with China to assess whether the requirements were consistent with legitimate food safety and health protection goals.

Guatemala expressed appreciation to China for its presentation in the SPS workshop on Annex C and the explanation of their domestic restructuring process with regards to AQSIQ and Customs. Guatemala requested China to clarify whether the restructuring would cause changes in the regulations notified in 2017 and whether the new structure would be notified to the WTO, as a notification would allow for a better understanding of the processes, stages and respective actions. Guatemala also requested China to consider reviewing the measure regarding low risk products such as processed products.

The European Union welcomed the objective of the new General Administration of Customs of China to simplify and accelerate procedures of custom clearance for imported goods. In this context, the European Union wondered if the new requirement would not create an administrative burden which would be disproportionate to the risk. Recalling its previous intervention, the European Union stressed that official certifications should be required only to manage real risks, and, therefore, should be limited to high-risk products.

Switzerland informed the Committee of the productive meeting held with China and welcomed China's decision to delay the enforcement of the measure to 1 October 2019, which demonstrated its willingness to consider feedback from Members, to make the measure more effective and practical, and to minimize negative effects on trade. The measure was scheduled to enter in force in approximately 14 months, providing time for Swiss competent authorities and private operators exporting to China to prepare. Switzerland encouraged China to use this time to engage in discussions to reply to questions and comments received.

Japan expressed concerns regarding the measure's scientific background and the avoidance of duplication of certificates.

Thailand pointed out that the measure covered a wide range of imported foods, including processed and shelf-stable foods, which posed low or no risk to human health, thus going beyond international standards. Thailand also requested China to align the measure with Codex guidelines and principles and to notify it to the SPS Committee.

Korea requested China to clarify the risk addressed by the measure. Korea also considered that requiring certification for all foods, including low-risk processed, shelf-stable foods on a batch-by-batch basis, as stated in China's notification of this measure to the WTO TBT Committee in June 2017, was inconsistent with Codex guidelines and principles. Korea requested China to revise the measure and notify it to the SPS Committee.

Singapore expressed its interest in this issue and looked forward to further discussions with China to minimize any potential disruptions to trade.

China emphasised that food safety was a current global challenge, and that only cooperation among countries could ensure safety of the global food supply chain. Regarding certification requirements, China highlighted that international organizations such as OIE, IPPC and Codex, had developed relevant certification requirements and guidelines, and that some Members had similar regulations. After taking full consideration of Member's comments, China had decided to postpone the enforcement of its measure to 1 October 2019. However, China noted that some Members believed that governments should not issue certificates for low-risk foods, while not being able to provide the legal basis to define low-risk foods. Further, China added that some Members did not supervise foods meant for export. Thus, China wondered who would guarantee the safety of food imported into China. The certificates under consideration included veterinary health certificates and certain sanitary certificates which had been widely accepted to certify that the production, processing, storage, transportation and export processes of foods had been under the effective supervision of competent authorities of the exporting parties. This way, China argued that the frequency of inspections and sampling could be reduced, allowing a quick clearance, facilitating trade and enhancing consumer confidence. China also informed the Committee that the institutional restructuring plan of the State Council had been reviewed and approved in March 2018, clarifying that the responsibilities for the exit, entry, inspection and quarantine of the former AQSIQ would be integrated to the General Administration of Customs, pending formal approval, once the institutional restructuring had been completed.

In July 2019, the United States requested an update on the status of the draft measure notified as G/TBT/N/CHN/1209, which required official certificates to accompany a range of imported food products on a shipment-by-shipment basis, including processed, shelf-stable foods. In response to concerns raised by trading partners on the burden it would impose and its lack of scientific justification, China notified an extension of the entry into force until 30 September 2019. Given that there were pending concerns regarding the measure, the United States requested a confirmation that the measure would not enter into force on that date. It recalled China's statement made to the TBT Committee on 5 July 2019, that the measure would "not affect existing trade after October, even though other Members could not provide certificates for processed food", until a mutually agreed solution was found. The United States would welcome a notification by China of an addendum indefinitely postponing the implementation of the measure.

Japan supported the concern, and requested information on the risk analysis and the revised draft, as well as sufficient time to prepare for any new measure.

Guatemala sought clarification on the implementation of the measure and queried whether its entry into force would be postponed.

The European Union referred to the Codex recommendations that official certificates should only be required when attestation and essential information were necessary to ensure food safety.

China clarified that the objective of the measure was not restrict trade, but to ensure the safety and complete traceability of products, through a strengthened supervision and the responsibility of exporting parties' authorities. China assured Members that the measure would not affect existing trade after October 2019, even when Members could not provide a certificate for processed food. To enhance communication and cooperation with Members, China had joined the electronic working group (EWG) on Food Integrity and Food Authenticity of the Codex Committee on Food Import and Export Certification and Inspection (CCFICS), addressing Members' concerns on the safety problems of low-risk foods in the international food trade through the formulation of Codex standards or guidelines. China remained open to maintaining close communication with the United States to resolve the issue.