Food Safety under WTO Law
Food safety is subject to World Trade Organization (WTO) sanitary and phytosanitary
(SPS) disciplines. Establishing discrimination under WTO food safety provisions
requires comparison not between the products at issue but between the risks at issue.
Therefore food-borne risk is a central element of the food safety regime under the WTO
law. To protect human, animal or plant life or health from such risk, WTO members
have the right to apply SPS measures with certain discretion. This discretion could be
inferred, first, from the fact that food-borne risks may include both territorial conditions
relevant to the risks (environmental or geographical, for instance) and at the
same time, risks found in products. Moreover the analysis may not be limited
exclusively to the present risk; the potential risk should be taken into account as well.
Second, the discretion to apply food safety SPS measures could be inferred from broad
interpretation of the notion of ‘directly related to food safety’, not limited by an
exhaustive list of possible food-borne risks.
Third, WTO members have the right to rely on the precautionary principle as a basis for
application of SPS food safety measures and finally they may set their appropriate level
of protection basing on both quantitative and qualitative aspects.