Tetra Pak® Containers and Glass Producers in Dire Straits (Short Essay for International Market Regulations Course)

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The action of Newland mentioned in the case corresponds to the General Exceptions of Article XX, GATT: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (b) necessary to protect human, animal or plant life or health”.

However, the restrictions imposed by Newland in 1997 considering the ban of importation of non-alcoholic beverages in tetra-pack containers do not fully correspond the rules established by the WTO . The reasons of this inconsistency will be presented below.

For a GATT-inconsistent measure to be provisionally justified under the Article XX it should meet the requirements of one of the particular exceptions listed in the paragraphs (in this case paragraph (b)) and the requirements of the chapeau of this Article. Moreover, the measure is provisionally justified by the Article XXb if: •The policy objective pursued by the measure is the protection of human, animal or plant life and health; •The measure is necessary to achieve that objective.

First, Newland did not provide the evidence of particular risk to “human, animal or plant life or health”. It just declared that it could be a risk to the environment as a whole caused by the use of tetra-pack containers. Newland as an importing country should demonstrate more detailed and deeper cause-and-effect linkage between the use of tetra-pack containers and specific environmental damage. Second, a measure is considered “necessary” if no alternative measure exists that would achieve the same end and is less restrictive to trade than the measure at issue. In deciding whether a measure is necessary we should take into account three issues: whether the level of protection established by a Member of WTO is the only way to reach the goal of environmental protection, whether the reasonably available alternative to the measure exists and whether the measure is less trade-restrictive with respect to other alternative provisions. In this case the necessity for achieving the objective to protect the environment is questionable. There is not enough scientific evidence provided by Newland against the use of tetra-pack containers for non-alcoholic beverages. It is just mentioned that “glass bottles are almost 100 per cent recyclable while tetra-pack containers are only 70 per cent recyclable” and that “tetra-pack containers degrade with time and then contaminate any liquid they hold”, but these conclusions do not coincide with most scientific studies (the difference between the recyclability of glass and tetra-pack containers is much lower than 30% and the danger of contamination arises only long after the due date of beverage held by tetra-pack containers). Thus, some principles of SPS Agreement are violated: (Article 2.2, SPS Agreement) “Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5”; (Article 3.1, SPS Agreement) “To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3”; (Article 5.2, SPS Agreement) “In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or...
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