Lesson 3: SPS Agreement Principles

Topic 4: Setting the Appropriate Level of Protection

Every country has the right to determine the level of protection that suits its needs. This is called an Appropriate Level of Protection (ALOP). However, that level of protection must be technically justified and applied consistently among Members. In this topic, you will learn how countries should determine, justify, and apply their ALOP.

Objectives:

  • Explain the concept of appropriate level of protection (ALOP)
  • Explain the relationship of the ALOP to the acceptable level of risk
  • Describe how the ALOP is used to prevent unjustified barriers to international trade

Each country has the right to determine what level of food safety and animal and plant health it considers appropriate, based on an assessment of risk. Once a country has decided this acceptable level of risk, there are often a number of alternative measures that may be used to achieve this protection.

Let’s examine Article 5 of the SPS Agreement more closely. Article 5 outlines a country’s rights to determine and implement its Appropriate Level of Protection (ALOP).

The remaining five items in Article 5 of the SPS Agreement cover Member’s appropriate level of protection (ALOP) and relate directly to assessment of risk.

  1. Members should, when determining the appropriate level of sanitary or phytosanitary protection, take into account the objective of minimizing negative trade effects.
  2. With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade. Members shall cooperate in the Committee, in accordance with paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical implementation of this provision. In developing the guidelines, the Committee shall take into account all relevant factors, including the exceptional character of human health risks to which people voluntarily expose themselves.
  3. Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.(3)
  4. In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.
  5. When a Member has reason to believe that a specific sanitary or phytosanitary measure introduced or maintained by another Member is constraining, or has the potential to constrain its exports, and the measure is not based on the relevant international standards, guidelines or recommendations, or such standards, guidelines or recommendations do not exist, an explanation of the reasons for such sanitary or phytosanitary measure may be requested and shall be provided by the Member maintaining the measure.

Agreement on the Application of Sanitary and Phytosanitary Measures.

Minimizing Negative Trade Impacts

The potential negative trade impacts of any measure should be considered before the measure is applied. Members should try to keep negative trade impacts as low as possible. For this reason, measures are not applied if the benefit from them cannot be proven (for example, preventing new infestations from happening or existing infestations from escaping), or they do not reduce risk. The level of protection considered appropriate by an importing country must be consistent and non-discriminatory. This means that the importing country must make sure similar risks are considered in the same way, regardless of what country the risk begins from. A country’s appropriate level of protection (ALOP) should ensure an acceptable level of risk. This risk level is different for every country, but cannot be zero.

If the risk posed by an exporting country is acceptable to an importing country, the same risk from any other country should also be acceptable to that importing country. If two or more measures are available that offer comparable efficacy, are equal technically, and offer economic feasibility, the measure that is least restrictive to trade must be adopted. Insisting on a measure that is difficult or expensive to comply with when other equally effective measures are available is an unjustified barrier to trade.

Provisional Measures

A country may adopt measures on a provisional basis in instances where available evidence is insufficient to effectively assess risk. However, there is no definition of “sufficient information”. The WTO does not have a minimum requirement for the amount of information needed to do a risk assessment. It is important to remember that even though there is no minimum requirement for information, the WTO requires a risk assessment. Sometimes countries use a lack of information as an excuse when they provisionally adopt a measure, sometimes for many years. This behavior is inconsistent with the SPS Agreement and has resulted in formal WTO dispute resolution proceedings.

A risk analysis can be made using very little direct information, with the understanding that uncertainty is higher. Measures to compensate for uncertainty are allowable, but precautionary measures without a risk assessment are not permissible.

The SPS Agreement encourages both importing and exporting countries to participate in risk assessment. The exporting country should provide relevant information about pest presence, pest distribution, production practices, and inspections. The importing country must justify the application of measures when they are not based on a standard. However, if a provisional measure is used, the importing country is required to provide all proof to support the provisional measures within a reasonable period of time. A country cannot indefinitely impose measures on the grounds of uncertainty alone. After sufficient information has been collected, the importing country should once again assess the risk based on the new information. The importing country should use this risk assessment to justify application or removal of measures. If requested, technical information must be provided to justify the use of all measures not based on international standards.

The following video will provide an example of Appropriate Level of Protection.

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In this topic, you learned about Appropriate Level of Protection (ALOP). ALOP is the mechanism that countries use to determine the level of protection they require. While each country is free to set its own ALOP, there are obligations that go along with that determination.

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