United States - Certain measures affecting imports of poultry from China: The fascinating case that wasn't

Abstract

US-Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an 'equivalence regime'. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues - in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS Article 4 says about equivalence regimes. The essay also criticizes the Panel's analysis of some of the issues the Panel does discuss, such as the meaning of the 'appropriate level of protection' in SPS 5.5 and 5.6, and the relationship between the SPS and GATT XX(b). © Copyright Donald H. Regan 2012.