US Loses to Argentina on Beef Ban at WTO, Lifts Ban

OIE Grants Zero FMD Status to Argentina

A WTO panel (DS447) found last Friday that a US import ban on animals and beef from Argentina violates global trade rules, citing inconsistencies with the relevant rules on measures to protect food safety and animal and plant health.

The ban, which was imposed in response to an outbreak of foot-and-mouth disease (FMD) in northern Argentina in 2001, violates various provisions under the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), the panel ruled.

FMD is a highly contagious disease that primarily affects cloven-hoofed livestock and wildlife and is often fatal to non-vaccinated young animals. It can also lead to decreased milk yield, permanent hoof damage, and chronic mastitis. Vaccinating animals is considered one way to fight the disease.

Disease status

The WTO uses the World Organization for Animal Health (OIE) as the reference organisation for standards relating to animal health and zoonoses, including the latter’s Terrestrial Animal Health Code (OIE Code).

Chapter 8.5 of this code is specifically devoted to foot-and-mouth disease. It aims to provide for safe trade in FMD-susceptible animals and products from them by recommending particular mitigating measures for both exporting and importing members, which are to be adopted depending on the exporting country or zone’s FMD-status.

The OIE recognised the entire Argentine territory as free of foot-and-mouth disease where vaccination is not practised in 2000. This country-wide determination was then suspended in May 2001 following new FMD outbreaks.

Between 2003 and 2007, northern Argentina obtained OIE recognition as FMD-free where vaccination is practised, though the status was suspended three times following disease outbreaks in certain areas. This status was renewed annually after it was reinstated in 2007. In 2011 the OIE recognised the protection zone established along the Argentine border with Bolivia, Paraguay, and Brazil as FMD-free where vaccination is practised.

Import ban

The US has been FMD-free for over 80 years and does not vaccinate cattle or other FMD-susceptible species. The OIE has formally acknowledged the disease’s absence in the US. Following various disease outbreaks in Argentina, Washington moved to prohibit imports of beef from the South American country, though such imports were allowed from neighbouring Uruguay, despite not being declared by the US Animal and Plant Health Inspection Service (APHIS) to be free of the disease.

Harmonisation, international standards, review process

The SPS Agreement encourages governments to “harmonise” or base national SPS measures on international standards, guidelines, and recommendations developed in other international organisations, such as the OIE.

The panel found that the relevant provisions of the OIE Code provides that imports from countries or zones that vaccinate cattle can be safely traded and should be permitted subject to the relevant mitigating protocols.

Separately, the panel also found that the US did not undertake and complete the procedure to review Argentina’s request for imports of beef from northern Argentina as well as the request for declaring Patagonia as FMD-free without undue delay, as required by the SPS Agreement. Following this finding, the panel said that Washington failed to fulfil its obligations to provide Argentina requested updates or explanations for the delay.

Given its earlier finding on the US’ “undue delays” in completing new risk assessments, the panel said that maintaining the import ban violates this particular trade rule.

The panel found that the US’ appropriate level of protection is “to prevent the introduction or dissemination of foot-and-mouth disease within the United States,” which can be described as being higher than that achieved by the Terrestrial Code.

Discrimination

The panel sided with Argentina in finding that the US’ decision to import Uruguayan beef while blocking that from northern Argentina constituted arbitrary or unjustifiable discrimination between members where the same conditions prevail, and is applied in a way that serves as a disguised restriction on trade – thus violating trade rules.

Regionalisation

The panel said that at the time of the panel’s establishment, Argentina had provided the necessary evidence to “objectively demonstrate” that Patagonia as a whole was disease-free and likely to remain so.

Therefore, the panel found that the US’ decision not to recognise Patagonia as disease-free is a failure to adapt its general import prohibition of FMD-susceptible animals and products from Argentina to the specific SPS characteristics of the Patagonia region, thus violating the SPS Agreement’s regionalisation obligations.

Next steps

In August 2014, after the panel was established, APHIS announced that it was adding the Patagonia region of Argentina to the lists of regions that are considered free of FMD and rinderpest, thus allowing exports of products to the US. Last month, APHIS announced it was lifting the import ban on beef from northern Argentina, effective 28 September 2015.