Thursday, 16 November 2017

Brexit Briefing - SPS Regulations

As part of a continuing series of posts examining the Single Market and Norway/Flexcit option (as expressed in a "Brexit Briefing" blog post by Pete North). this post will examine the claims made for EEA Sanitary & Phyto-Sanitary (SPS) regulations (i.e. regulations covering animal and plant health) and their relation to global standards.

WTP SPS Agreement

The WTO SPS agreement encourages the use of international SPS standards. Article 3.1 states "Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations". Article 3.4 identifies three organisations as having particular relevance:
UNECE also provide agricultural quality standards and is party to an agreement with Codex (the "Geneva Understanding") in order to avoid duplication of work. 

However, Article 3.3 of the WTO SPS Agreement provides a get-out: "Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations".  

EU SPS Regulations

EEA SPS regulations make up 1,507 of the 5,584 EEA regulations in force, i.e. approximately 27% (as of 16th November 2017). It is true that the great majority of these SPS regulations are based on international standards (primarily from Codex and UNECE). However, as explained in Derrick Wilkinson's blog, the EU imposes severe restrictions or bans on a wide range of plant protection products (PPPs), veterinary pharmaceuticals (VPs) and biotechnologies.

This point has attracted media coverage recently: an EU Commission decision on Basmati rice, slashed allowable levels of the pesticide Tricyclazole (used for 30 years) to a hundredth of the current legal level; US Trade Secretary Wilbur Ross described EU regulations as "unscientific", referring to the ban on chlorine-washed chicken and also Genetically Modified Organisms (GMO).

Commenting on the speech by US Trade Secretary Ross,  Alan Beattie in the FT notes that the EU has lost several cases on food regulation at the WTO to the US, and also comments: "Brussels’ cautious interpretation of the “precautionary principle” retards growth and innovation and is exploited by protectionist lobbies. Its food regulations, which frequently disadvantage farmers in developing countries, often bear the marks of public prejudice and domestic lobbying rather than science."  

EU SPS Enforcement

The  WTO SPS agreement also covers Control, Inspection and Approval Procedures (Article 8 & Annex C). Unsurprisingly, the EU has erected a highly regulated system of food safety measures for imports from third countries (i.e. outside the single Market).

Products of animal origin (POAO), i.e. live animals and animal products including meat and dairy, imported from third countries require EU approval of the third country and establishments. Products must be accompanied by relevant veterinary certificates and imported via a nominated Border Inspection Post (BIP) where they are subject to:
(i) documentary check - health certificates and any accompanying laboratory test results;
(ii) identity check - container seals, packaging of the goods, labelling and health marking;
(iii) physical check - packaging will be opened, sight, smell, taste assessment (where appropriate), samples may also be taken for laboratory assessment. The frequency of POAO physical checks (governed by Commission Decision 94/360/EC) is:
▪ 20 per cent for meat and fish;
▪ 50 per cent for poultry meat, honey and dairy products;
▪ 1-10 per cent for inedible POAO, such as hay.

Non-animal products (i.e. plants and plant products) from third countries may be subject to import checks, determined on the basis of risk analysis. In addition, specific controls are applied to certain non-animal products originating from certain countries 
(i) Some products must have a phytosanitary certificate under Directive 2000/29/EC, guaranteeing they have been  properly inspected; are free from harmful organisms; and conform with relevant plant health regulations. 
(ii) Some products are classified as 'High-risk' products of non-animal origin under Regulation EC/669/2009. These products must be imported via a Designated Port of Entry (DPE) to undergo checks similar to those required for products of animal origin (i.e. documentary, identity and physical checks at a set percentage rate).

The  WTO SPS agreement encourages members to enter into equivalence agreements (Article 4), which can reduce non-tariff barriers for third countries. Switzerland copies all EU SPS regulations and has an equivalence agreement with the EU allowing all agricultural products to be traded under the same conditions as intra-EU trade. The EU recognises other third country regimes such as Canada and New Zealand as essentially equivalent and lower inspection rates apply.

By contrast, trade within the EU/Single Market is mostly exempt from these checks. EU SPS regulations are enforced via national agencies (Food Safety Agency (FSA) in the UK) who directly monitor establishments. Live animals must travel with a veterinary health certificate (although there are specific exemptions for horses). A limited number of plant products originating within the EU are also subject to health controls under Directive 2000/29/EC, requiring a "plant passport" once they have passed all EU checks.

Future UK-EU trade

Outside the Single Market, UK exporters will face third country barriers. Meat and dairy exports will be heavily impacted. However, given UK convergence with EU SPS regulations and the established track record of the FSA in monitoring UK establishments, an EU refusal to approve UK establishments and recognise equivalence in line with agreements enjoyed by other third countries (e.g. Canada) would constitute discrimination under WTO law.

Non-animal products should see little impact - while all third country imports may be subject to inspections based on risk analysis, there seems little reason to believe that EU member states customs authorities will suddenly deem UK products as high risk and divert resources away from inspecting known sources of risk.

An acrimonious "No Deal" impasse could see the EU could drag its heels on approvals and equivalence agreement.  But it should be borne in mind that since the UK is mirroring EU law, trade barriers will apply in both directions. The UK currently imports 3 times more than it exports to the EU in the agrifood sector. In any case, high tariffs in this sector would severely diminish UK-EU agrifood trade. UK response should be a mix of import substitution and pivot to global agricultural trade.

Executing such a pivot on agricultural trade (primarily meat & dairy) is not at all straightforward given the complex and interwoven nature of food supply chains. The UK would need (i) a carefully designed subsidy scheme to support farmers and facilitate switching of activity; (ii) lowering of agricultural tariff barriers (via TRQs and FTAs) and non-tariff barriers (liberalised SPS regime and equivalence agreements) with the rest of the world.


Contrary to claims made by supporters of Norway/Flexcit option, adopting EU SPS regulations is not just adopting global standards and we cannot influence EU SPS non-tariff barriers at a "global" level. As Alan Beattie put it in his FT article "product regulation is not global; international laws to constrain national rules are weak". US Trade Secretary Ross also made clear that Brexit presents us with a distinct choice in this sector.

We could stay inside the protectionist EU SPS regime which provides barriers to trade with the rest of the world, but avoids barriers in trade with the EU (primarily for live animal, meat & dairy products). This avoids adding another issue to the Irish border, but at present no solution seems to satisfy the EU/Ireland short of separating Northern Ireland from the UK.

Alternatively we can break out of the EU regime and trade freely with the rest of the world, while facing similar barriers to agricultural trade with the EU as other third countries. Many EU FTA's founder on EU protectionism in agriculture. Developing economies are locked out of the EU's market. A Swiss-USA FTA was abandoned because the Swiss are tied to the EU SPS regime and could not offer liberalisation on agriculture.

For me, breaking free from EU SPS regulations is the obvious choice. While a creative solution is needed for the Irish border, creative thinking is already needed to address many Irish border concerns beyond SPS regulations. The positive opportunities are simply too good to turn down.


  1. The key point here I think is that UK agricultural exports to the EU are so modest while the SPS regulations plus high tariffs divert our import demand to high cost sources. So the case for a really radical shake up of trading patterns here is strong. A glance back to 1970 or so shows a dramatically different picture.

  2. Well put and well said - I totally agree.

  3. A possible half way house Paul would be for the UK to voluntarily continue with the agriculltural SPS regime for a few years, then phase it out. That would make things easier re. Ireland.

    Increasingly it seems to me the UK needs to lay out a detailed unilateral strategy in all these areas, with clear timetables and say to the EU that unless they have constructive suggestions these strategies will be going ahead.

  4. Yes, I've previously speculated that we could start with a form of Swiss equivalence then move to Canadian equivealnce (sector by sector if need be) as & when we diverge. However, that relies on EU being willing to facilitate our move away from dependence on EU imports. Given their current attitude, that seems unlikely.

  5. Paul may I suggest one of your future briefings be on aviation?