Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Despite Unpopular U.S. Labelling of Swine from Canada, Canada Not to Blame for Swine Flu

Okay, the country of origin labelling rules pre-dated the world attention to swine flu.  However, swine flu will likely exacerbate the ongoing dispute between the United States and Canada over the United States Country Of Origin Labelling (COOL) provisions for food in the Agricultural Marketing Act of 1946 as amended by the 2008 Farm Bill. A new U.S. food-labelling law requiries labels on supermarket packages of meat (including fresh beef, pork, lamb, goat and chicken) and other foods to identify all countries from which the food originates.

Another problem is that the COOL rules will fuel the "Buy America" sentiment and consumers may prefer to buy U.S.-only foods.

Also, the effect of the COOL labelling is to increase costs of foreign product so that consumers will be incentivized to purchase U.S.-only foods. This is protectionism.

On December 1, 2008, Canada filed a Request for Consultations with the United States under the WTO Dispute Settlement Understanding. Canada alleged that the mandatory COOL provisions appear to be inconsistent with the United States' obligations under the WTO Agreement, including:

  • Articles III:4, IX:4 and X:3 of the GATT 1994;
  • Article 2 of the TBT Agreement, or, in the alternative, Articles 2, 5 and 7 of the SPS Agreement; and
  • Article 2 of the Agreement on Rules of Origin.

The dispute is being held in abeyance as the United States had made certain representations to Canada during the consultations that the proposed COOL labelling requirements would be amended.

Canada filed a complaint about the law at the World Trade Organization last year, but suspended it in January after the U.S. government revised the final version, making it more flexible.  But before the law went into effect on March 16, U.S. Agriculture Secretary Tom Vilsack warned meat packers he would rewrite it unless they voluntarily made labels more explicit.  Canada has asked for more details about Vilsack's request, but failed to receive clarification, Day said.

In response, on April 27, 2009, Minister Day announced that Canada would proceed with the WTO dispute and theat consultations would be resumed.

On a unrelated/related note, China (and Russia (only from certain States), Honduras, El Salvador, Lebannon, Ukraine, Thailand, Kazakhstan, Philippines and the UAE)  have banned U.S. pork imports in light of the swine flu outbreak.  U.S. officials have responded to the Chinese ban saying that such embargoes could trigger "serious trading disruptions".

So, let me get this straight - serious trading disruptions are okay if imposed by the United States and foreign goods are affected, but not okay if imposed by other countries and U.S. goods are affected.

Also, it is important to note that the U.S. Centers for Disease Control and Prevention and other health organizations have insisted that the swine flu strain cannot be spread by food and that properly cooked pork is safe.  if this is so, what is the justification for the COOL rules. 

Canada should applaud the indirect assistance of China's import ban.  There should be many helpful statements made by the U.S. officials interested in keeping U.S. swine exports flowing...

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