Indian Avian Flu Import Ban Violates SPS Agreement: WTO

The WTO Appellate Body confirmed on 4th June, 2015, that India Avian flu measure (AI measure) prohibiting the import of life-stock and agricultural products from countries reporting Avian flu is inconsistent with the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) as it is not based on the relevant international standards or a risk assessment, appropriate to the circumstances. 

The measure in question was notification S.O. 1663(E) issued by the Department of Animal Husbandry, Dairying, and Fisheries under section 3(1) r/w 3A of the Live-Stock Importation Act 1898, effective from 19 July 2011.

The notification provided that the: “Central Government hereby prohibits, with effect from the date of publication of this notification in the Official Gazette, namely:

1. The import into India from all countries in view of Notifiable Avian Influenza, of wild birds except those reared and bred in captivity;


2. The import into India from the countries reporting Notifiable Avian Influenza, the following livestock products, namely:
   • Domestic and wild birds (including poultry and captive birds);
   • Day old chicks, ducks, turkeys, and other newly hatched avian species;
   • Un-processed meat and meat products from Avian species, including domesticated, wild birds and poultry;
   • Hatching eggs;
   • Egg and egg products (except Specific Pathogen Free eggs);
   • Un-processed feathers;
   • Live pigs;
   • Pathological material and biological products from birds;
   • Products of animal origin (from birds) intended for use in animal  feeding or for agricultural or industrial use; and
   • Semen of domestic and wild birds including poultry : Provided that the Central Government may allow the import of processed poultry meat after satisfactory conformity assessment of the exporting country.”^[1]

The United States of America requested the established of a Panel on 11^th May 2012 for a finding that this measure was inconsistent with India obligations under the SPS Agreement and GATT 1994. Some on the main contentions raised by USA are discussed below.

USA argued that the measure was inconsistent with Article 3(1) of the SPS Agreement which provides that “Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations.” Both Parties accepted that the international standard with respect to this issue was Chapter 10.4 of the OIE Terrestrial Animal Health Code^[2]. India contended that the recommendations of Chapter 10.4 envisaged, implicitly, the imposition of import prohibitions and such prohibitions did not need to be limited to specific zones or compartments reporting avian flu. The Panel, however, rejected this view as Chapter 10 allows for the importation of relevant products from countries, zones or compartments reporting avian fly, provided that appropriate measures are taken for the mitigation of risk.^[3]

Next it was contended by USA that the AI measure was not in conformity with Article 5.1 and 5.2 of the SPS Agreement as India had not conducted any assessment to gauge the risk to human, animal or plant life or health before implementing the ban. India claimed that an SPS measure which conforms to the relevant international standard is based on scientific evidence, thereby precluding its obligation to conduct a further risk assessment to justify the adoption of such measure. The panel did not accept this argument. It concluded that the absence of a risk assessment was inconsistent with Article 5.1 and 5.2 of the SPS Agreement.

Thirdly, USA argued that the India AI measure was incompatible with Article 2.2 of the SPS Agreement which provides that an SPS measure shall be applied only to the extent necessary to protect life or health based on scientific evidence as provided for in Article 5 (risk assessment). India failure to conduct a risk assessment rendered its AI measure in contravention of Article 2.2 also.

Next, USA contended that India AI measure discriminated between agricultural products on the basis on its place or origin, in the sense that India did not impose such restrictions on its own products. The notification imposed a complete ban on the import of products if there was an outbreak of AI in the exporting country, however, the domestic law in India allowed the sale of products even after an AI outbreak IF those products originated 10km away from such outbreak. Thus, the measure was a disguised restriction on trade and not inconformity with Article 2.3 and 5.5 of the SPS Agreement. India argued that such a comparison was illogical as the risks associated with a domestic outbreak were distinct and less severe in comparison to the risks associated with the ingress of a disease into India through the importation of products. Furthermore, the import ban was not permanent and would be removed once the exporting country notified that it was free from AI.

The Panel found that India AI measure: (1) discriminated between imported and domestic products, (2) amounted to an arbitrary and unjustifiable discrimination, and (3) that similar conditions existed in India and other export countries making the measure a disguised restriction on trade and rendering it incompatible with Article 2(3) of the SPS Agreement. Following the same reasoning discussed above, the Panel also concluded that the AI measure was incompatible with Article 5.5 and 5.6 of the SPS Agreement.

The DSB had given India a deadline of 26^th January 2015 to adopt the Panel report; however, India appealed the Panels finding before the expiry of this period. The Appellate Body has upheld the Panels Report and advised the DSB to request India to bring its AI measure in conformity with its obligation under the SPS Agreement and GATT.^[4]

The report of the Appellate Body has a significant impact on the life-stock industry of USA which exported a total of 6.8 billion pounds of poultry in 2010, valued at $3.1 billion. The report is well reasoned and thorough and it is advisable that India revises its AI measure and brings the notification in conformity with its international obligations

By : Adv. Niharika Dhall
info@lawsenate.com