STC Number - 289

Measures on catfish

Maintained by: United States of America
Raised by: China; Viet Nam
Supported by: Thailand
First date raised: October 2009 G/SPS/R/56 paras. 21-22
Dates subsequently raised: October 2012 (G/SPS/R/69 paras. 29-30)
October 2014 (G/SPS/R/76 paras. 3.20-3.21)
March 2015 (G/SPS/R/78 paras. 3.37-3.38)
July 2015 (G/SPS/R/79 paras. 3.27-3.28 )
October 2015 (G/SPS/R/81 paras. 3.25-3.26)
March 2016 (G/SPS/R/82 paras. 3.34-3.37)
June 2016 (G/SPS/R/83 paras. 4.38-4.41)
October 2016 (G/SPS/R/84 paras. 3.27-3.30)
Number of times subsequently raised: 8
Relevant documents: G/SPS/N/USA/2171 G/SPS/GEN/1527
Products covered: 03 Fish and crustaceans, molluscs and other aquatic invertebrates
Primary subject keyword: Other concerns
Keywords: Control, Inspection and Approval Procedures; Food safety; Human health; Other concerns; Equivalence
Status: Not reported
Solution:
Date reported as resolved:

Extracts from SPS Committee meeting summary reports

In October 2009, China raised concerns about the US Federal Meat Inspection Act which potentially could have a significant impact on the international trade of catfish. According to the Act, regulatory responsibility for catfish was shifted from the Food and Drug Administration (FDA) to the US Department of Agriculture (USDA). USDA was mandated to draft a series of rules concerning the production and inspection requirements for catfish before the beginning of 2010; countries wanting to export or to continue exporting catfish to the United States were required to have their inspection system recognized by the USDA as equivalent to the US system. China had serious concerns about the possible negative impact this change of the regulatory system could have on the current catfish trade. China requested an explanation of the sudden change of the regulatory system, and whether any SPS risk factors had triggered the decision. China also questioned whether the US policy would remain consistent in order to avoid any adverse effect to the existing trade of catfish, and whether the existing trade between China and the United States would be taken into consideration when developing the new regulatory system.

The United States stated that the Food Conservation and Energy Act of 2008, signed into law on 18 June 2008, amended the Federal Meat Inspection Act and required USDA's Food Safety Inspection Service (FSIS) to establish a new federal programme for the production and inspection of catfish. In preparation of the anticipated changes to the federal regulations, USDA had visited and communicated with many Members to alert them to the new law. Members were encouraged to participate in the rule-making process once it was announced and notified via the WTO, and to identify any potential concerns with the proposed regulation as soon as possible.

In October 2012, China recalled that in March 2011, the United States notified a requirement for mandatory inspection of catfish and catfish products which included catfish regulation with that of terrestrial animal meat products. Aquatic animal products presented lower risks than terrestrial animal products, and China sought an explanation and risk assessment from the United States. Moreover, China hoped that if the regulation were to be implemented, the United States would respect the traditional transitional period of 5 years considering China's developing country status.

The United States recalled that the Food Conservation and Energy Act of 2008 mandated that catfish be regulated under the Federal Meat Inspection Act. A proposed rule for the inspection of catfish was notified to the WTO and comments accepted until 24 June 2011. The US Department of Agriculture was still reviewing the comments and would notify the adoption of the final rules for inspection of catfish before implementation. The United States would make every effort to minimize disruptions to trade once the catfish inspection program began.

In October 2014 China recalled that in March 2011, the United States had notified its regulations for mandatory inspection of catfish and catfish products, intending to transfer the regulatory responsibility from the Food and Drug Administration (FDA) to the US Department of Agriculture (USDA). In 2014, USDA had been mandated to draft rules concerning the requirements for inspection of catfish and catfish products, which had included catfish regulation with that of terrestrial animal meat products. The biological characteristics, farming, processing and inspection of catfish products, however, were different from that of terrestrial animal meat products. The OIE had established terrestrial and aquatic animal health codes respectively, and there was no evidence that catfish products had higher food safety risks than other aquatic products. China raised its concern that USDA's inspection programme imposed additional costs on foreign catfish producers by requiring equivalence programmes. China believed that the inspection programme was a trade barrier and violated US obligations under WTO agreements. China urged the United States to adjust its mandatory inspection measure based on science, and to implement catfish inspection under the management regulations of aquatic products instead of terrestrial animal meat products.

The United States explained that the Food Conservation and Energy Act of 2008 had mandated that catfish be regulated under the Federal Meat Inspection Act. The Agricultural Act of 2014 had made the Food Safety and Inspection Service (FSIS) responsible for fish safety and inspection. The United States noted that FSIS was currently working on finalizing the catfish inspection rules, and that trading partners would be notified as soon as these rules were finalized.

In March 2015, China recalled that in the 2014 Farm Bill of the United States, the regulatory food safety oversight of all Siluriformes fish was moved from the Food and Drug Administration (FDA) to the United States Department of Agriculture's Food Safety Inspection Service (FSIS). FDA was traditionally in charge of other food products, including aquatic products. The proposed rule on mandatory inspection of catfish and catfish products, notified to the Committee in March 2011, would thus duplicate inspections already conducted by FDA on all catfish products. China also recalled the report published by the United States Government Accountability Office in May 2012. According to China, the report observed that the USDA proposed rule on mandatory inspections would duplicate existing government programmes and would not improve consumer safety. The USDA risk assessment published in July 2012 showed that the probability of food poisoning from catfish is very low, with only one salmonella outbreak linked to catfish in the past 20 years. China believed that the inspection programme was not based on a serious risk assessment, which violated US obligations under the SPS Agreement. China urged the United States to regulate catfish on a scientific basis, and to maintain the catfish inspection programme under the regulatory system of aquatic products.

The United States explained that the Food Conservation and Energy Act of 2008, known as the 2008 Farm Bill mandated that catfish be regulated under the Federal Meat Inspection Act and directed USDA to promulgate a rule to define catfish and provide for its mandatory inspection. The Agricultural Act of 2014, known as the 2014 Farm Bill had made FSIS responsible for Siluriformes fish including catfish. The United States noted that FSIS was currently working on finalizing the catfish inspection rules, and that trading partners would be notified as soon as these rules were finalized.

In July 2015, China recalled its concerns regarding US regulations on the mandatory inspection of catfish and catfish product notified in March 2011, which transferred the regulatory food safety oversight of all Siluriformes fish from the Food and Drug Administration (FDA) to the United States Department of Agriculture's Food Safety Inspection Service (FSIS). As a result, the United States applied terrestrial animal meat inspection procedures for the imports of Siluriformes fish, including catfish. According to China, the inspection programme was not based on science and would result in a disguised restriction on international trade. China also recalled that according to the 2012 US Government Accountability Office report, the risk of food poisoning from catfish might be overestimated. China urged the United States to revoke all legislation on mandatory inspection of Siluriformes fish and to maintain the catfish inspection programme under the FDA regulatory system of aquatic products.

The United States explained that the regulation was based on relevant international standards and would also apply to domestic products. The United States welcomed comments from Members in this regard.

In October 2015, China raised its concern regarding the US regulation on Mandatory Inspection of Catfish and Catfish Products, which transferred the regulatory food safety oversight of catfish from FDA to the Food Safety Inspection Service (FSIS) of the United States Department of Agriculture (USDA). The 2014 US Farm Bill had extended the product range covered through this transfer from catfish to all Siluriformes fish. China observed that the USDA had previously been responsible for meat, poultry and processed eggs, while FDA had been in charge of other food products, including aquatic products. As such, China queried the application of terrestrial animal meat inspection procedures to aquatic products, highlighting that this approach was without precedent worldwide. China further noted that there was no evidence showing that Siluriformes fish posed a higher food-borne risk than other aquatic products and thus queried the rationale for changing the regulatory responsibility from FDA to USDA only for Siluriformes fish instead of all aquatic products. In addition, China believed that the US measure was not based on a scientific risk assessment in accordance with Article 5.1 of the SPS Agreement. China noted that the distinction between Siluriformes fish and other aquatic products could also result in a disguised restriction on international trade and as such, China urged the United States to base its regulation on relevant international standards or on a scientific risk assessment.

The United States replied that its measure had been published in February 2011 and notified to the SPS Committee in G/SPS/N/USA/2171. In particular, the United States noted the previous exchanges with China regarding the statutory details that underpinned this proposed rule, which remained unchanged. FSIS would continue to work to finalize its rule on fish inspection. The United States assured Members that it had closely reviewed the comments provided by its trading partners and that the final rule would be consistent with its international obligations.

In March 2016, China again raised its concern regarding the US regulation on Mandatory Inspection of Catfish and Catfish Products, which transferred the regulatory food safety oversight of catfish from FDA to the Food Safety Inspection Service (FSIS) of the USDA. The regulation had taken effect on 1 March 2016 and applied terrestrial animal meat inspection procedures to aquatic products, which was without precedent worldwide. China further noted that there was no evidence showing that Siluriformes fish posed a higher food-borne risk than other aquatic products and thus queried the rationale for changing the regulatory responsibility from FDA to USDA only for Siluriformes fish instead of all aquatic products. China again noted that the distinction between Siluriformes fish and other aquatic products could also result in a disguised restriction on international trade. China urged the United States to abolish all non-conforming legislation related to mandatory inspection of Siluriformes fish and to base its regulation on relevant international standards or on a scientific risk assessment.

Viet Nam shared the concerns expressed by China and echoed that the measure was not based on scientific evidence. Viet Nam, like China, questioned the application of terrestrial inspection regimes to only one type of aquatic animal. Viet Nam stated that in implementing this legislation, the United States had not taken into consideration existing trade in catfish and catfish products with Viet Nam and other countries. Viet Nam requested that United States address these concerns as the regulation in its current form would result in disguised trade restrictions.

Thailand also shared this concern even though the export value of catfish from Thailand to other countries was low. Thailand requested the United States to provide clarification and justification on this matter.

The United States replied that the measure had been published in February 2011 and notified to the WTO in G/SPS/N/USA/2171. The final USDA rule on catfish inspection had been published on 2 December 2015, with the addendum notified on 3 December 2015. The rule had been carefully developed to take into account all comments and obligations under WTO rules. The United States remained committed to facilitate a smooth introduction of the inspection programme and FSIS would conduct outreach to all trading partners regarding implementation.

In June 2016, China again raised its concern regarding the US regulation on mandatory inspection of catfish and catfish products, which transferred the regulatory food safety oversight of catfish from FDA to the Food Safety Inspection Service (FSIS) of the USDA. The regulation had taken effect on 1 March 2016 and applied terrestrial animal meat inspection procedures to aquatic products, which was without precedent worldwide. China insisted that this inspection programme was inconsistent with certain requirements of GATT 1994 and the SPS Agreement. China stated that the regulation was not based on scientific principles or on a scientific risk assessment, and constituted a disguised restriction on trade. China queried the rationale for changing the regulatory responsibility from FDA to USDA only for Siluriformes fish instead of all aquatic products, and observed that this constituted an arbitrary and unjustifiable distinction. China requested that the United States provide a written explanation on the US Senate vote on 25 May 2016 against the regulation, and the steps following this vote. China urged the United States to remove its mandatory inspection for Siluriformes fish and maintain the FDA inspection program.

Viet Nam shared the concerns expressed by China and echoed that the measure was not based on scientific evidence, and constituted a disguised restriction on trade. Viet Nam indicated that it felt encouraged by the US Senate vote of 25 May 2016, and expressed its expectation that the programme be removed following action by the US House of Representatives and US Administration. Viet Nam reminded that the programme, if maintained, would fail to comply with the SPS Agreement, and thus urged for its repeal.

Thailand also shared the concerns expressed by China and Viet Nam, and urged the United States to align its measure with international standards and to comply them with the SPS Agreement.

The United States replied that the FSIS had been conducting outreach events such as bilateral meetings and a regional seminar to the potentially affected trading partners, in order to ensure a smooth transition and avoid disrupting imports following the new rule. The United States indicated that any Member interested in hosting an educational outreach meeting for their national inspection team could contact FSIS. The United States maintained that the final rule at play was consistent with the SPS Agreement, and declared that if the FSIS had not finished its equivalence determination after 1 September 2017, the United States would take steps to ensure that trade continue smoothly for all countries that had previously submitted their equivalence documentation. The United States had no information on whether or not the House of Representatives would consider a resolution similar to that of the Senate, and in the meantime would continue to implement the rule.

In October 2016, China again raised its concern regarding the US regulation on mandatory inspection of catfish and catfish products, which transferred the regulatory food safety oversight of catfish from FDA to the Food Safety Inspection Service (FSIS) of the USDA and accorded unjustified discriminatory treatment to siluriformes and their products. China drew Members' attention to document G/SPS/GEN/1527 which provided further information on this issue. The US regulation had taken effect on 1 March 2016 and applied terrestrial animal meat inspection procedures to siluriformes (including catfish) and derivate products. China stated that the regulation was not based on scientific principles or on a risk assessment. Referring to the results of various US government reports, China argued that catfish did not pose a higher risk compared with other aquatic products, and that the effectiveness of the FSIS siluriformes inspection programme was uncertain. China stated that the US regulation failed to respect international norms and imposed unnecessary restrictions to trade, causing important financial losses to its industry and affecting tens of thousands of jobs. China again urged the United States to consider the comments it had provided and bring its measure into full compliance with the provisions of the WTO Agreements.

Viet Nam shared China's concerns and also argued that the measure was not based on scientific research or on a risk assessment. Viet Nam declared that it had exported catfish to the United States for nearly 20 years without raising any food safety concerns, and that the 2012 USDA FSIS risk assessment report had concluded that "illness from catfish [was] an uncommon event." Viet Nam indicated that it felt encouraged by the US Senate action on 25 May 2016 to pass a resolution to overturn the USDA programme, as well as the letters recently signed by the majority of the House of Representatives to support the Senate resolution. Viet Nam expected that the US administration would take similar steps and remove the programme, which otherwise would fail to comply with the SPS Agreement.

Thailand echoed the concerns expressed by China and Viet Nam, recalling that the programme was not supported by a risk assessment and violated various articles of the SPS Agreement.

The United States reiterated its commitment to working with its trading partners during the implementation of the measure in order to ensure a smooth transition and avoid disrupting imports following the new rule. The United States reminded Members that FSIS had been conducting outreach events such as bilateral technical meetings and regional implementation seminars. The United States indicated that any Member interested in hosting an educational meeting for their national inspection team could contact FSIS.