STC Number - 257

Import restrictions on cooked poultry products from China

Maintained by: United States of America
Raised by: China
Supported by:
First date raised: October 2007 G/SPS/R/46 paras. 11-12
Dates subsequently raised: April 2008 (G/SPS/R/49 paras. 39-40)
June 2008 (G/SPS/R/51 paras. 29-30)
October 2008 (G/SPS/R/53 paras. 35-36 )
February 2009 (G/SPS/R/54 paras. 15-16)
October 2009 (G/SPS/R/56 paras. 37-39)
March 2010 (G/SPS/R/58 paras. 33-34 )
June 2010 (G/SPS/R/59 paras. 42-43 )
Number of times subsequently raised: 7
Relevant documents: Raised orally
Products covered: 160232 -- Of fowls of the species Gallus domesticus
Primary subject keyword: Food safety
Keywords: Control, Inspection and Approval Procedures; Food safety; Human health; Equivalence
Status: Resolved
Solution: DSU consultations requested on 17 April 2009 (WT/DS392/1). Panel established on 31 July 2009. Panel report (WT/DS392/R) adopted on 25 October 2010.
Date reported as resolved: 25/10/2010

Extracts from SPS Committee meeting summary reports

In October 2007, China stated that the OIE had explicitly pointed out in the Avian Influenza Guideline that restrictive measures associated with avian influenza should not be applied to cooked poultry meat that had been subjected to heat treatment to destroy the virus. Nonetheless the United States prohibited the importation of such cooked poultry meat processed from poultry originated in China. Although the United States admitted that there was no technical problem for the importation of such cooked poultry meat and it was only a matter of legal procedure, the US Congress had passed in August the Agriculture Appropriations Bill for Fiscal Year 2008, of which Section 731 prohibited the importation of such products from China. China questioned the scientific justification behind such a decision, how this section took into consideration the SPS principle of minimizing negative effects on trade and the principle of risk assessment. China hoped that the United States would abolish Section 731 and lift the ban as soon as possible.

The United States noted that the Agriculture Appropriations bill had not yet passed Congress, and was subject to potentially substantial change before it was signed into law by the President.

In April 2008, China indicated that despite numerous bilateral meetings, including on the recognition of equivalence, China's cooked poultry products were still denied access to the US market. The United States had admitted that there were no technical problems with the importation of cooked poultry from China, yet imports remained restricted due to legal problems. The Agriculture Appropriations bill, which contained a specific provision to not allow imports from China, had been signed into law. This prohibition was contrary to Articles 2.2 and 2.3 of the SPS Agreement, as the law was discriminatory and not science-based. This development set a bad precedent, showing that SPS measures could be easily overturned by legislation that paid no attention to scientific factors.

The United States explained that the Agriculture Appropriations bill prohibited the use of federal funds by USDA to continue work on this rule. China's concerns would be brought to the attention of the appropriate authorities in Washington, with the aim to resolve this problem as soon as possible.

In June 2008, China reported that its concerns on the US ban on imported Chinese cooked poultry dated back to 2004. China had been informed that all technical issues, including recognition of the equivalence of its sanitary system, had been resolved during bilateral consultations. However, the US Agriculture Appropriations Bill for Fiscal Year 2008, Section 7333, stipulated that the funds made available by that bill could not be used to establish or implement a rule allowing Chinese poultry products to be imported into the United States. This legislation disregarded the fact that the USDA had undertaken a risk assessment which concluded that Chinese cooked poultry did not pose risks to health. China considered the law to be discriminatory, and not based on science. China requested an update of the situation, and an indication of when Chinese cooked poultry products would be allowed into the US market.

The United States indicated that her country placed great importance on the fact that its SPS measures were based on science. China's concerns would continue to be raised with the appropriate authorities within the United States with the hope that this situation could be resolved as soon as possible.

In October 2008, China reiterated its concerns regarding US import restrictions on cooked poultry products from China, even though there were no technical problems with these products. However, the US Agriculture Appropriations Bill banned the use of federal funds to allow poultry products to be imported from China.

The United States affirmed that it would continue to raise China's concerns with the appropriate authorities in Washington and hoped to resolve the issue as soon as possible.

In February 2009, China reiterated concerns about the US Agricultural Appropriations Bill for fiscal year 2008, which had seriously affected China's exports of cooked poultry products. Although all technical problems had been resolved after numerous bilateral consultations, the United States still maintained an import ban because the Bill's section 733 indicated that no funds made available in the Bill be used to establish or implement a rule allowing poultry products to be imported to the United States from China. China was seriously concerned about this discriminatory legislation, which was in obvious violation of US international obligations. China hoped to resolve this problem in a science-based and pragmatic manner and asked the United States for an update. The representative of the United States indicated that the US authorities placed great importance on ensuring that measures were based on science. China's concerns would be brought to the attention of the appropriate authorities in Washington with the aim of resolving the issue as soon as possible.

In October 2009, China stated he United States had modified the relevant clauses of the Omnibus Appropriations Act 2009, and the newly adopted Agriculture Appropriation Act of 2010, allowed imports of processed poultry or poultry products from China only if certain criteria were met. The criteria included audits of inspection systems and onsite reviews of slaughter and processing facilities, laboratories and other control operations; a significantly increased level of port of entry re-inspection; and the creation of an information-sharing programme with other countries. While China noted the progress on the issue, the new measures were discriminatory as they specified conditions applicable only to China.
China further stated that the planned auditing and inspection requirements were excessively stringent and the certifying procedure was complicated. Additionally, the new provision ignored the agreement reached in 2007 between the United States and China on relevant technical issues concerning the import of poultry and poultry products from China, and the achievements China had made on developing disease-free areas in accordance with OIE standards. China requested the United States to fulfil its WTO obligations and to take active steps to eliminate discriminatory measures and normalize bilateral poultry trade.

United States stated that her government placed great importance on ensuring that its measures were based on science and in compliance with the WTO SPS Agreement. The Agriculture Appropriations legislation approved in 2009 permitted USDA to make a determination with respect to China's application to export poultry products to the United States, provided that the Secretary of Agriculture made certain commitments to Congress. Such commitments set forth what would ordinarily occur under the standard procedure that would apply to an application to export poultry products from any country. USDA would undertake certain transparency and notification obligations with respect to Congress, but it would not have any effect on the substantive treatment of China's application or of any imports from China.

In March 2010, China reiterated that Section 743 of the US Agriculture Appropriations Act (AAA) of 2010 set discriminatory requirements on China's processed poultry products. China had raised similar concerns about Sections 733 and 727 of the US appropriations acts of 2008 and 2009, respectively. Section 743 was discriminatory in nature, and required a significantly increased level of port of entry re-inspection, the creation of an information-sharing programme with other countries, audits of inspection systems and on-site reviews of slaughtering and processing facilities. These Chinese-specific requirements were not in conformity with Articles 2.2 and 2.3 of the SPS Agreement. Although the United States asserted that Section 743 only established commitments on the Secretary of Agriculture by the US Congress, the new requirements would create substantial obligations for China when exporting poultry products to the United States. At the end of 2007, the USDA had concluded the equivalence recognition process for Chinese poultry inspection and control systems. However, the only remaining task, which was the finalization of the US legislation process, had never been concluded. China was dismayed by recent US comments that the equivalence recognition process for Chinese poultry would need to be restarted.

The United States responded that the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act 2010 permitted the USDA to use funds to establish and implement equivalence rules for Chinese poultry. The USDA Food Safety Inspection Service (FSIS) was moving forward with the equivalence process for China and had requested information regarding China's new food safety law on poultry inspection systems, as well as any other changes to China's laws and regulations related to these systems. This type of request was made to any country that had significantly changed its food safety system during an equivalence determination process.

In June 2010, China reiterated that Section 743 of the US Agriculture Appropriations Act (AAA) of 2010 set discriminatory requirements on China's processed poultry products. China had previously raised this concern at the October 2009 and March 2010 meetings. At the March meeting, the United States had reported that additional information was being sought regarding China's new Food Safety Law. China stated that it had in fact finalized a recognition of equivalence with the United States at the end of 2007, and therefore Chinese cooked poultry products were able to meet United States' SPS requirements before the adoption and implementation of the new Food Safety Law. China argued that the Food Safety Law could not be used to impede the ongoing consultation process, and urged again the United States to eliminate discriminatory restrictions on Chinese cooked poultry products.

The United States noted that the United States did not maintain a funding restriction on USDA's ability to move forward with rulemaking related to China's equivalence for poultry. USDA had reached out to China several times in recent months to move forward with China's equivalence application, specifically asking for an updated application and more information regarding its new Food Safety Law. USDA was committed to ensure that its regulatory policies were based on science and met its international obligations. The United States urged China to work with the USDA on its application of equivalence and to provide the requested information as soon as possible.