The Study on the Compliance of Taiwan's Regulations on Ractopamine with the WTO Covered Agreements

• Main Authors: Yu-Han Chen, 陳郁涵
• Other Authors: Hui-Yen Hsu
• Format: Others
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/43cgm5

碩士 === 國立東華大學 === 財經法律研究所 === 102 === Taiwan is a member of the WTO, and the legal system of Ractopamine, a method of trade limitation, is under Article 1 of the SPS agreement which prescribes the sanitary and phytosanitary measures. The maximal residue level of Ractopamine in beef is 0.01 ppm, a standard that conforms to the international standards, guidelines and recommendations, and, according to Article 3.2 of the SPS agreement, the disputed measure is presumed to be consistent with the SPS agreement and GATT standards. Limiting Ractopamine residues of pork imported in Taiwan is performed under “zero risk” high restriction standards, and certainly conforms to Article 5.4 of the SPS agreement. Under the presence of prima facie evidence showing that Taiwan violates Article 3.3 of the SPS agreement, Taiwan would be responsible to disclaim these accusations with proof. If the disputed measure does not simultaneously satisfy the three conditions stated in Article 5.5 of the SPS agreement, then the measure is not regarded as inconsistent with Article 5.5 of the SPS agreement. The disputed measure is not arbitrary or unjustifiable measure, because it does not fulfil capriciousness, inconsistency, and other illegally and unmorally justification. Therefore, it is hard to conclude that the disputed measure is inconsistent with Article 2.3 of the SPS agreement. There may be an alternative measure that can meet Taiwan’s standard (zero Ractopamine residue in pork), is economically and technically feasible, and is less trade-restrictive. According to Article 5.6 of the SPS agreement, the complainant is responsible for presenting evidence, or else the disputed measure cannot be said to be inconsistent with the SPS agreement. To the consumers of Taiwan, beef and pork are not considered to be the like products. Since they are not considered the like products, the measure does not conflict with the most-favored nation treatment and the national treatment. For these reasons, the disputed measure does not contradict Article 1.1, 3.2, and 3.4 of the GATT. The labeling of country of origin in Taiwan is a technical regulation under the TBT agreement, not under the SPS agreement. Article 2.1 of the TBT agreement is similar to the national treatment of Article 3.4 of the GATT; the labeling measure does not accord lower treatment to imported products in comparison to domestic products, which is consistent with Article 2.1 of the TBT agreement. Although the protection of consumer rights and purveying of information to consumers is not a part of the objective of Article 2.2 of the TBT agreement, they should be an objective of Article 2.2 of the TBT agreement. Until other WTO members provide possible less trade-restrictive alternative measures, it cannot be said that Taiwan’s labeling measures is inconsistent with Article 2.2 of the TBT agreement. Under the insufficiency of relevant scientific evidence, the restriction measure of no residue in viscera products is a provisional measure under Article 5.7 of the SPS agreement, and is presumed to conform to Article 20 (b) of the GATT, according to Article 2.4 of the SPS agreement. The inspection of import products is different than that of domestic products, which is considered an act of arbitrary and unjustifiable discrimination, inconsistent with Article 8 and annex C (1) of the SPS agreement. The procedure of risk assessment, and the consultation, recommendation and deliberation of the Food Risk Assessment Advisory Committee, would not fulfill WTO’s requirements of risk assessment, which is inconsistent with Article 5.1 and 2.2 of the SPS agreement. Not separating risk assessment with risk management seems to be inconsistent with the principle of Article 5.1 of the SPS agreement.