ICTSD Outputs and Activities on Biotechnology, Trade and Sustainble Development

Biotechnology: Addressing Key Trade and Sustainability Issues

Index

B.2 Multilateral trade rules

Q8 What WTO agreements apply to trade in biotechnology products?

Several WTO agreements are relevant to trade in biotechnology:

the General Agreement on Tariffs and Trade (GATT) which establishes the basic principles and rules for trade in goods;
the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) which deals with food safety and animal and plant health regulations; and
the Agreement on Technical Barriers to Trade (TBT Agreement), which addresses technical regulations and standards, including packaging, marking and labelling requirements.

In addition, the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement), which establishes minimum standards of protection for intellectual property, is also pertinent to biotechnology. Section B.4 will analyse in detail the relationship between intellectual property and biotechnology.

The extent to which and circumstances in which these agreements apply to biotechnology-related measures, however, are still uncertain.

The GATT covers all international trade in goods between WTO Members, and would thus also apply to trade in biotechnology products. Nevertheless, the WTO Panels or Appellate Body generally only turn to the GATT in relation to issues not covered by more specific agreements. In certain cases, though, the GATT may apply concurrently with a more specialised agreement, such as the TBT or the SPS agreements. Moreover, these specific agreements would only prevail to the extent that there is a conflict between their provisions and those of the GATT; otherwise, both the general and the more specific agreements would continue to apply to the greatest extent possible (Zarrilli, 2005).
The SPS Agreement applies to all sanitary and phytosanitary measures that may, directly or indirectly, affect international trade. Annex A (1) of the SPS Agreement defines SPS measures primarily on the basis of their purpose, including protecting animal or plant life or health from risks arising from pests and diseases, and from risks arising from additives and toxins in foods, beverages or feedstuffs. Annex A(1) also provides examples of the types of measures that are covered, such as laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; and quarantine treatments. To the extent that biotechnology-related measures address food safety concerns such as potential toxicity, allergenicity, and antibiotic resistance, they would thus fall under the SPS Agreement. Measures with environmental objectives, insofar as they address pesticide resistance, genetic flow, and other animal and plant health issues, might also be considered to constitute SPS measures under WTO rules (Wolff, 2005). Indeed, in the EC-Biotech Report, the Panel developed a broad interpretation of the definition of an SPS measure and found the SPS Agreement was applicable to the EU approval procedures, as well as to the challenged measures – the general moratorium on approvals of biotech products, failure to provide final decisions on specific products and national safeguard measures (WTO, 2006).
The TBT Agreement aims to ensure that technical regulations and standards do not create unnecessary obstacles to international trade. All products, including industrial and agricultural products, are subject to its provisions. However, Article 1.5 of the TBT Agreement states that its provisions do not apply to sanitary and phytosanitary measures. Measures such as packaging, marking and labelling requirements for biotechnology products – labelling to identify nutritional values, for example – would thus be considered under the TBT Agreement.