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STC Number - 454
EU transitional periods for MRLs and international consultations
Brazil; Chile; China; Costa Rica; Ecuador; Guatemala; Honduras; Panama; Paraguay; Peru; Turkey; United States of America
First date raised:
, paras. 3.12-3.23
Dates subsequently raised:
July 2019 (
, paras. 4.62-4.73)
Number of times subsequently raised:
0803 Bananas, including plantains, fresh or dried.; 0813 Fruit, dried, other than that of headings 08.01 to 08.06; mixtures of nuts or dried fruits of this Chapter.; 2009 Fruit juices (including grape must) and vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter.; 22 Beverages, spirits and vinegar
Primary subject keyword:
Human health; Food safety; Maximum residue limits (MRLs); Pesticides; International Standards / Harmonization; Risk assessment; Technical Barriers to Trade (TBT)
Date reported as resolved:
Extracts from SPS Committee meeting summary reports
In March 2019, Colombia raised a concern regarding EU transitional periods for MRLs and international consultations, addressed in document G/SPS/GEN/1697. As already raised in the TBT Committee on 6 March 2019, Colombia stated that, in practice, European regulations tended to include shorter transition periods for standards amending MRLs. Colombia explained that a six-month period was not enough to comply with new MRLs, given the harvesting periods and the stage at which agrochemicals were applied. For processed and/or frozen products, the situation could be even more problematic. Colombia explained that the development of a new phytosanitary pest-control product took 36 months on average and therefore transition periods should exceed the general rule of a reasonable interval of six months under Annex B.2 of the SPS Agreement and Ministerial Decision WT/MIN(01)/17. Colombia referred to Article 10.2 of the SPS Agreement, as it provided for longer time frames for the compliance with sanitary and phytosanitary measures for products of interest to developing country Members, with a view to maintaining trade opportunities for their exports. Colombia presented the example of the transition period for reducing MRLs for buprofezin to a minimum detection limit (0.01 mg/kg) (Commission Regulation (EU) 2019/91 of 18 January 2019, addressed in STC No. 448) and its effects on the marketing of bananas. Colombia insisted that the deferred implementation date did not allow time to find effective alternatives for pest control that met the high-quality standards required by the European market. Colombia suggested creating a forum at the WTO for technical discussions to prevent MRL changes from restricting trade more than necessary.
Brazil, Chile, China, Costa Rica, Ecuador, Guatemala, Honduras, Panama, Paraguay, Peru, Turkey and the United States supported Colombia's concern, emphasizing that the EU transition periods granted to implement modified MRLs were insufficient to adapt to the new requirements and prepare dossiers for import tolerance requests.
Paraguay added that concerns and observations raised in international consultations did not seem to have been taken into account by EU authorities. An example of this was the non-renewal of picoxystrobin and the subsequent modification of the MRL by the European Union in January 2019 (notification G/SPS/N/EU/264/Add.1), despite prior concerns raised in the SPS and TBT Committees.
Turkey called on the European Union to take into consideration international standards on MRL levels in the type of circumstances at issue, as they were facing trade disruptions as a result of the ongoing situation. Turkey asked the European Union to implement longer transitional periods for products with a longer shelf life.
The United States recalled that many US growers had to make final crop decisions a year in advance of the final product reaching a foreign market's border, which meant that the inconsistent timing of EU MRL review and the short transition periods created significant challenges for them. The problem was particularly acute for commodities with longer storage and distribution cycles (e.g. dried fruits, dried nuts, canned products, frozen products, juices wines and spirits), which had been produced in accordance with the EU standards in effect at the time of production, but were no longer eligible for entry into the European Union upon shipment. In addition, the United States wished to know why EU domestic producers had been granted grace periods of up to 15 months to continue using the substances in question when products of other Members had not, and why the European Union had determined that immediate action on MRLs was not needed until these domestic grace periods ended. Finally, the United States wished to remind the European Union of its obligations under the SPS Agreement to take into account the technical and economic feasibility for producers of complying with the timeframes provided in EU MRL measures, and to avoid arbitrarily or unjustifiably discriminating between the EU territory and that of other Members.
Ecuador felt the absence of alternative molecules meant the EU measures would in practice hinder access to its main export market. Ecuador lacked the resources required to support farmers wishing to submit to EU authorities scientific dossiers in support of import tolerances or molecule replacement requests. Ecuador supported Colombia's proposal to discuss within the Committee the establishment of a possible minimum transition period for exporting developing countries seeking to adapt to modification of EU MRLs.
Costa Rica explained that the six-month period was insufficient for agricultural production to adapt to MRL adjustments, because registration of new molecules in itself already required a longer evaluation process. On buprofezin specifically, Costa Rica requested the European Union to extend the deadline for compliance with the new tolerance level, given its effect on Costa Rica's EU-bound banana exports. In addition, Costa Rica urged the European Union to dialogue with countries exporting agricultural products that were affected by MRL amendments and singled out the CAC as the appropriate multilateral framework for these decisions.
China stated that the concern on MRL amendments should be directed at other Members beside the European Union. China considered that MRL transition measures had to go beyond the basic rules of the SPS Agreement, since different plants had different growth periods. Some plants for instance needed a year or more to reach the harvest stage, which meant that certain MRL transition periods were insufficiently long for farmers to adjust even if they had been enacted in compliance with the SPS Agreement. China therefore suggested that Members include actual data on plant growth periods when setting MRL transition measures in future.
Brazil recalled that it had on many occasions expressed its concerns on the European Union's hazard-based approach to approving pesticides, which it viewed as incompatible with Articles 2 and 5 of the SPS Agreement. Brazil also pointed to the draft EU amendments, which seemingly introduced the possibility that the cut-off date for compliance might be that of production for EU products but that of import for imported products; and requested clarification.
Peru announced it had submitted several alternatives, which were being discussed in Geneva and Brussels.
The European Union welcomed China's reference to the MRL measures of other Members in the discussion. The European Union stressed that it fulfilled all its obligations under both the TBT and SPS Agreements, in particular their transparency and notification provisions. Information and comments received in response to notifications were always taken into account before taking a final decision, while detailed replies were regularly sent to those trading partners that submitted comments. Regarding possible transitional periods, the European Union wished to inform the Committee about two key provisions. First, a deferred date of application was established after entry into force of an act lowering MRLs. In most cases, this deferred application date was set six months after entry into force, which allowed third countries and food business operators to make necessary arrangements to meet the new MRLs. Secondly, products produced or imported into the European Union before the application date could continue benefitting from the former MRL levels and thus remain on the market, provided that there was information showing that a high level of consumer protection was maintained.
Concerning Colombia's specific comment on buprofezin, the European Union responded that the Commission Regulation had been notified to the SPS Committee in July 2018 and would only enter into force in August 2019, hence more than a year after notification. The European Union also emphasized that it had conducted a risk assessment which had identified aniline as a carcinogen. The European Union also clarified that it was not the intention of its MRL measures to discriminate. Finally, the European Union wished to recall the constant dialogue taking place with Members in Brussels.
In July 2019, Colombia noted that, considering harvest times and the times when agrochemicals were applied, the six-month period prior to the application of a measure did not provide sufficient time to make the necessary production adjustments to ensure the compliance of agricultural products with new MRLs. MRL transition periods should follow a different analysis to the general rule of six months. Colombia also shared that other Members had expressed similar concerns on this issue.
Brazil, Canada, Chile, Costa Rica, the Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Thailand and the United States also expressed concerns over the transition and implementation periods for MRLs, and the time required to replace the affected substances.
Brazil regretted that new regulations would apply taking into consideration the date of production for European Union products, but the date of importation for non-EU products, which could introduce an unjustifiable discrimination between the SPS measures that were applied.
Ecuador underlined that the registration of new replacement substances required a 24-month evaluation process, followed by another 12 months for the issuance of the registration. Insufficient time and lack of access to alternative molecules could lead to blocking the entry of their agricultural products into their most important market.
The United States expressed its concern that the European Union's transition measures also appeared to establish arbitrary differences in the treatment of domestic and imported products. In the European Union's response to US comments on G/SPS/N/EU/248, one of the first notified European Union MRL measures to introduce the transition measures in question, the European Union explicitly acknowledged that non-EU countries would have a shorter time to comply with new MRLs compared to EU member States. The United States therefore asked the European Union to clarify how it was taking into account the technical and economic feasibility of producers to comply with the timeframes provided in its MRL measures, as well as its obligation to not arbitrarily or unjustifiably discriminate between its own territory and that of other Members.
Costa Rica requested the extension of the deadline for compliance with new tolerances and asked the European Union to establish a dialogue with the exporting countries of agricultural products that were affected by their modifications of the MRLs, and encouraged that studies, analysis and decisions be adopted within the framework of Codex and the SPS Agreement.
Chile requested the European Union to extend the transition period to at least 24 months; while the Dominican Republic requested at least one year. Guatemala also underlined a study undertaken by producers to determine the impact of EU measures. Canada referred to its previous comments on transition periods.
The European Union referred to its statement at the March 2019 SPS Committee meeting. It recalled that generally there was a deferred application of six months and there could be transitional measures when there were no immediate safety concerns, which would allow products produced in the European Union or imported to remain on the market until the end of their shelf life. The European Union explained that it applied the same cut-off date for production and importation for reasons of enforcement and feasibility of controls. The European Union also suggested that the notifications of non-renewal or revocation of authorisations of substances under the TBT Agreement were de facto an early warning, as normally mentioned in these notifications. Following these notifications, the period of withdrawal of authorizations was normally six months, and an additional grace period for placing new plant protection products without market disruption could be up to 18 months. Therefore, there could be two years between TBT notifications and the application of measures modifying MRLs. The European Union took note of Members' comments, and added that the EU system was transparent and predictable.
Costa Rica made reference to the European Union's response which noted its TBT notifications as an "early warning", providing Members with almost two years to adjust to lower MRLs. Costa Rica requested clarification on whether the European Union's TBT notifications should be evaluated under the disciplines of the SPS Agreement, too, including the science-based requirement.
The European Union responded that the notification under the TBT Agreement of the non-renewal of MRLs could be discussed, as it could be argued that there could be some SPS elements in those decisions. However, for measures to be notified, they had to have a significant impact on trade, and the non-renewal of substances' authorisations would not have a significant impact on trade, other than in the European Union.
The United States sought clarification from the European Union's comment that the reason to not notify the non-renewal of substances for domestic use was that they did not significantly impact trade, but at the same time it asserted that their TBT notifications were an early warning to trade partners.
The European Union expressed its commitment to transparency and notifying its measures. It noted that non-renewals of substances had no impact on trade until the MRLs were changed, and notifications had been regularly submitted that way.
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