by Lawrence Kogan
I. Introduction Part 1 of this article discussed how the various food safety-related provisions of the Hong Kong Code of Marketing and Quality of Formula Milk and Related Products, and Food Products for Infants & Young Children ("the Draft HK Code") violate the WTO Sanitary and Phytosanitary ("SPS") Agreement. In particular, it focused on how the Government of the Hong Kong Special Administrative Region ("the GHK-SAR") had failed to substantiate with scientific evidence, on food safety grounds, the Draft HK Code's effective imposition of a 30-month marketing ban on follow-up formula and complementary food products intended for infants and young children up to 36 months of age. As discussed in Part 1 of this article, the WTO Panel in EC-Biotech Products ruled that it is possible to have a consolidated measure part of which qualifies as an "SPS measure" subject to coverage under the WTO SPS Agreement, and part of which qualifies as a "non-SPS measure" potentially subject to coverage under the WTO Technical Barriers to Trade ("TBT") Agreement. It found that TBT "Article 1.5 makes clear that, to the extent the requirement at issue qualifies as an SPS measure, the provisions of the TBT Agreement would 'not apply', even though the requirement at issue is contained in a law which meets the definition of a technical regulation." And, "to the extent the requirement at issue is applied for a purpose not covered by Annex A(1) of the SPS Agreement, it can be viewed as embodying a non-SPS measure." However, since TBT Article 1.5 is not necessarily applicable, by its terms, to non-SPS measures, it must first be demonstrated that the measure qualifies for coverage under the TBT Agreement. The notification the GHK-SAR submitted in November 2012 to the WTO TBT Committee in accordance with TBT Article 2.9 provides a step in that direction. It indicates that the Draft HK Code also has non-food safety-related purposes. While Section 7 of the GHK-SAR's TBT notification provides a statement of purpose that is identical to the statement of purpose contained in Section 7 of the notification it submitted to the SPS Committee, it must be read with an eye towards gleaning the Draft HK Code's non-food safety purposes. Both notifications provide that, "[t]he HK Code aims to contribute to the protection of breastfeeding and...provision of safe and adequate nutrition for infants and young children by: (a) protecting breastfeeding and; (b) ensuring the proper use of formula milk, formula milk related products, and food products for infants and young children up to the age of 36 months, on the basis of adequate and unbiased information and through appropriate marketing" (emphasis added). The key difference between these two notification documents is to be found in Section 8. Section 8 of the GHK-SAR's TBT notification identifies the WHO International Code of Marketing of Breastmilk Substitutes (the "WHO Code") as the "Relevant Document", whereas Section 8 of the GHK-SAR's SPS notification identifies eight Codex standards, in addition to, the WHO Code as "Relevant International Standards". The GHK-SAR's TBT notification is important because it "enjoys a rebuttable presumption of truthfulness and good faith consistent with international law." The Draft HK Code's background description and text support such a reading. They similarly reflect that one such purpose is to promote public health by "protect[ing], promot[ing] and support[ing] breastfeeding" which helps "infants...to achieve optimal growth, development and health and thereafter, to meet their evolving nutritional requirements." The Draft HK Code's background description and text also indicate that another such purpose is to address "the aggressive marketing of formula milk in Hong Kong, which is considered a factor that contributes to the low breastfeeding rates ...[i.e., t]o protect breastfeeding from being undermined by inappropriate marketing." The background description states that the intent of this latter purpose is to ensure parental choice in infant feeding decisions free from commercial influence and/or misrepresentations. Although Draft HK Code provisions may qualify (wholly or partly) as non-SPS measures, it cannot be presumed that they fall within the scope and coverage of the TBT Agreement. Part 2 of this article discusses how various such provisions qualify as de facto "technical regulations" under the TBT Agreement but nevertheless violate the letter and spirit of the TBT Agreement because they impose unnecessary obstacles to trade. [footnotes omitted]
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Lawrence A. Kogan, Esq. is Managing Principal of The Kogan Law Group, P.C., a New York City-based multidisciplinary legal services firm, and President/Director of the Institute for Trade, Standards and Sustainable Development (ITSSD) (www.itssd.org) that is a globally recognized NGO for reporting and analysis of the growing influence of evolving foreign and international public interest rules on private property rights and the American free enterprise and common law systems.