Group 6: 1. Bui Thuy Anh - 1606060002 2. An Quoc Anh - 1606060003 3. Hoàng Đức Anh - 1606060004 4. Phạm Đình Bình - 1606060006 5. Đào Linh Chi - 1606060008 6. Nguyễn Thị Chung - 1606060009 7. Nguyễn Thùy Dương - 1606060010 Topic: Labelling That the labelling requirements are 1classified as a technical regulation or as a standard has been a controversy. Both the 12definition of technical regulation and standard (Annex 1.1. of TBT Agreement) refer to documents which “include or deal exclusively with … labelling 20requirements as they apply to a product, process or production method”. The prominent difference between technical regulation and standard is the nature of “mandatory compliance”. However, this issue is still disputable. The exemplary case to take a close look at can be the dispute case US – Tuna II, which mainly concerns with the requirement from US that tuna products have “dolphin-safe” labels. The 1US argued here that its measure did not mandate compliance and could not be reviewed as a technical regulation. It is true that the labelling requirements can mandate compliance when 3the label is required for the product to access market, and hence, be technical regulations. Still, 1if the product can be marketed without the label, the labelling requirements will be a standard which do not need to be complied in a mandatory manner. 5The fact that “labelling requirements” may consist of criteria or conditions that must be complied with in order to use a particular label does not imply therefore that the measure is for that reason alone a “technical regulation” within the meaning of Annex 1.1. Also, it is fair 1to say that all labelling requirements are concerned with consumer information. Labels can take various forms 28with respect to the importance of the information conveyed to consumers. 1If the authority requires the label to be used in order for the product to be marketed since it is highly important for consumers to receive 3the information in a uniform manner. Therefore, a mandatory technical regulation will be preferred. On the other hand, a voluntary standard becomes an option as it becomes less important for consumers to receive the information in a uniform manner. Therefore, labelling requirements are not always technical regulations. And the 17determination of whether labelling requirement is a technical regulation must be made in the light of the characteristics of the measure at issue and the circumstances of the case. How to take into account the label standards adopted by Codex? 13The Codex Alimentarius or "Food Code" was established by FAO and the WHO in 1963 to develop harmonized international food standards, which protect consumer health and promote fair practices in food trade.2Codex standards ensure that food is safe and can be traded. The 188 Codex members have negotiated science based recommendations in all areas related to food safety and quality: food hygiene; maximum limits for food additives; residues of pesticides and veterinary drugs; and maximum limits and codes for the prevention of chemical and microbiological contamination. Codex food safety texts are a reference in WTO trade disputes. The Codex food labeling standards are the “international standards, guidelines or recommendations” of food labeling suggested by FAO and WHO. However, these standards are not the obligation of Codex members. It’s the recommendation from 11FAO and WHO to develop harmonized international food standards, protect consumer health and promote fair practices in food trade. Member states and organizations could develop their standards to treat the imported and exported goods to other countries if there is another scientific justification. In terms of imports, if the host state’s level of standards in Sanitary or Phytosanitary Measures and Technical Barriers are higher than the Codex, then they have to follow Anex B (Transparency 27of Sanitary and Phytosanitary Regulations) of SPS and Article 2 of TBT Agreement. In sort, they have to 29explain the justification for that technical Sanitary or Phytosanitary Measures and Technical Regulations. Vice versa, regarding export, if the home country requires level of standards in Sanitary or Phytosanitary Measures and Technical Barriers must be lower than the Codex, they also have to explain the justification for such recommendations. When does a consumer information label become a health warning, incompatible with WTO rules? When 4technical regulations are required and relevant international standards exist or their completion is imminent, members shall use them or parts of them as a basis for technical regulations. When international standard does not exist, they follow TBT conditions. When international standards exist, they follow ISO: Standards, IEC: Electronics, ITU: Telecommunication or CODEX Alimentarius. For example, tobacco labelling without international standars, which is imposed by more than 70 countries in the world, based on Article 2 TBT: this warning for purpose of health problems, a country can apply this requirements to all tobacco product. Tobacco with existing international standard is regulated by the Codex standard 1-1985: 9General Standard for the Labelling of packaged foods, the name of the food, list of ingredients, net contents and drained weight, name and address, country of origin, lot identification, date marking and storage instructions, instructions for use are mandatory. 15Any information or pictorial device written, printed, or graphic matter may be displayed in labelling provided that it is not in conflict with the mandatory requirements is optional. Nutrition declaration have to follow CAC/GL 2-1985 stating about 23energy value, amounts of protein and fat, any other nutrient for which a nutrition or health claim is made. 4. The case: Dolphin safe Label Labeling “Dolphin safe” intended to be 8a certification that (a) no nets were intentionally set on dolphins in the set in which the tuna was caught; and (b) no dolphins were killed or seriously injured in the sets in which the tuna was caught. Whether it is a technical regulation? According to Van den Bossche and Zdou, 10a measure is a “technical regulation” within the meaning of TBT Agreement if: Measure applies to an identifiable products of group of products? This labeling requirement applies to canned tuna exported to and sold in the US. Measure lays down product characteristics? This requirement though does not define directly which characteristics a tuna product should have, it implicitly excludes some particular methods of tuna fishing and fish processing – process and production method (PPM). The US – the respondent party in US - Tuna II (Mexico) (2012) case argue that “dolphin safe” labeling requirement is a standard but not a technical regulation. Their argument was not the above mentioned 2 tests but the third. 10Compliance with the product characteristics laid down in the measure is mandatory? In order to determine 24whether a measure is a standard (voluntary applied) or a technical regulation (mandatory) following exercises 21should be considered: Whether the measure consists of a law or a regulation enacted by a WTO member? Dolphin Safe label and its standards has legal status in the US under the Dolphin Protection Consumer Information Act, a part of the US Marine Mammal Protection Act. Whether it prescribes or prohibits particular conduct? Dolphin Safe label requires 22that dolphins may not be intentionally chased, circled or netted; driftnets and gillnets cannot be used during tuna fishing. 4Whether it sets out specific requirements that constitute the sole means of addressing a particular matter? The16measure sets out a single and legally mandated definition of “dolphin safe” tuna products and disallow the use of other labels that do not satisfy with the definition. The nature of the matter addressed by the measure? “Dolphin safe” labeling requirement definitely defines when a tuna products can be safe-to-dolphin. According to 26Annex 1.1 of TBT Agreement, “dolphin safe” label is a technical regulation, which is mandatory to apply. Several recommedations are suggested for Vietnam. Vietnam can 7benefit from the recognition and protection of origin in the international market. For example, when the EVFTA comes into force in 2018, the use of Geographical Indications (GIs) 25such as Moc Chau tea or Buon Ma Thuot coffee7will be reserved in EU for products imported from Vietnam’s regions in which they originate. This protection will be assured on the EU market by appropriate administrative sanctions, including upon request of an interested party, which creates many favorable conditions for Vietnamese exporters. Although GM label is not mentioned in CODEX, in 2014, 64 countries required labeling of all GM foods. It was not until the enforcement of Joint Circular On Labeling Of Prepacked Genetically-Modified Foods (No. 45/2015/TTLT-BNNPTNT-BKHCN) on 08th Jan 2016 that GM label became mandatory for Vietnamese food. The phrase “genetically modified” and content thereof shall be written on product’s label next to the name of the genetically modified ingredients. Thus, Vietnam has better access to other markets all over the world. Overall, Vietnam follow the procedures on label standards adopted by Codex. The TCVN 7087:2013 12for the labelling of prepackaged foods is similar to CODEX STAN 1- 1985. At the same time, it shall be in accordance with Art. 5 of the TBT 12“Procedures for Assessment of Conformity by Central Government Bodies”. In conformity with the procedures in labelling, there are 6fees chargeable for assessing the conformity of like products of national origin or originating in any other country, taking into account communication, transportation and other costs arising from differences between location of facilities of the applicant and the conformity assessment body (Art. 5.4 of the TBT). Word count: 1500 Reference: 1. 19Agreement on Technical Barrier to Trade. Available at: https://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm 2. Ministry of rural and agricultural development, Joint Circular On 30Labeling Of Prepacked Genetically-Modified Foods, 2015. Availbale at http:// thuvienphapluat.vn/van-ban/Thuong-mai/Joint-circular-No-45-2015-TTLT- BNNPTNT-BKHCN-on-labeling-of-prepacked-genetically-modified-foods- 297932.aspx 3. 18Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization, Third Edition, Cambridge University Press.144. The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Available at: https ://www.wto. org /english/tratop_e/sps_e/spsagr_e.htm 5. The11Codex Alimentarius, International Food Standard. Available at: http://www.fao.org/fao-who-codexalimentarius/en/