Steve Suppan, Ph.D.¹
Director of Research
Institute for Agriculture and Trade Policy

Rod Leonard²
Executive Director
Community Food Institute

The United Nations Food and Agriculture Organization (FAO) and the World Health Organization (WHO) are to be congratulated for deciding to undertake a comprehensive review of the relevance and adequacy of international food safety standards and the standards setting process. The terms of reference for the review offer ample opportunity for a comprehensive review and we are grateful for the care that FAO and WHO has exercised in developing these terms. We are pleased that WHO has identified food safety as a public health priority and has decided to promote the participation of public health professionals in the development of the standards and related texts of the Codex Alimentarius Commission.³ The "WHO Global Strategy for Food Safety" and other related documents present a daunting panorama of increasing and widespread incidence of food borne illnesses and challenges to public health that have been intensified by different aspects of globalization, including the attempt to structure a global food system. As the terms of reference for the Joint FAO/WHO Evaluation note, the Food Standards Programme’s "importance has gradually shifted from providing a basis for national standards to providing a point of reference in standards, guidelines and codes of practice for international trade."⁴

This shift is of great importance for the firms that rely on a reference to standards to facilitate trade and for the countries that hope for some development benefits from export revenues despite the farm level price collapse for agricultural exports from most Codex members. The reoriented significance of Codex standards has focussed the standard setting process on the approximately ten percent of global food production that is traded, rather than on the ninety percent that is subject, in theory, to national standards. It may be argued that there is a "trickle down" effect of trade related food safety standards implemented nationally to the benefit of public health. However, documentation on the incidence of the adoption, implementation and enforcement of Codex standards in national legislation, regulations and sanitary and phyto-sanitary programs is largely absent. Hence, the public health effects of the Food Standards Programme, though usually assumed to be positive, is unknown.

The scarcity of data to show what the standards have achieved thus far was pointed out by Digby Gascoine, then Chair of the Codex Committee on Food Import and Export Inspection and Certification Systems (CCFICS) at an international trade-related food safety conference in October 1999. Mr Gascoine wrote that "There are no firm data as to the extent of use of Codex standards. The acceptance procedure by which Codex members are expected to voluntarily indicate their recognition of Codex norms at the national level is now rarely used. WTO Members when notifying new or revised technical requirements under the relevant procedure are expected to indicate whether their measure conforms with a relevant international (e.g. Codex) standard, guideline or recommendation, but such notifications can give only a very limited impression of whether Codex norms are meeting national needs and therefore providing a suitable basis for harmonization."⁵ Although Mr. Gascoine subsequently averred, without examples, that Codex standards were adopted by member countries, anecdotes of adoption scarcely provide a data base for determining the contribution of food standards to protecting consumer health or to improving public health indicators.

Furthermore, some Codex committee meetings have become occasions for often unspecified accusations about unfair rejections of exported foods and exports of substandard foods. The origin of these complaints and their resolution, if any, are most often bilateral. Thus far, to our knowledge, there is no data base that summarizes these complaints and their resolution. Codex does not have country, commodity or regional profiles on whether the cause of rejection is a sanitary/phytosanitary matter, a customs valuation matter, a technicality or some combination of two or more of these. Reference to such a data base might give an empirical grounding to proposed language for draft standards or texts that has become often hortatory for the lack of such a data base. The increasing charges in Codex meetings of cases of unfair trading practices is, furthermore, overwhelming any effort to determine whether imports allowed under Codex standards are harming consumer health.

To address this urgent need for baseline data about the impact of Codex standards and related texts, we propose that the FAO and WHO Director Generals seek authorization and a budget from their members for the following studies and surveys:

• FAO and WHO should commission a nation-based survey of the incidence of food borne illnesses over the past decade to provide a reference point for strategies of food safety intervention. The survey would begin with reports from available national data bases and academic studies, but would commission studies to estimate the incidence of food borne illness in member countries where such data is absent, fragmentary or methodologically unreliable. The survey would also solicit information about national or international initiatives undertaken to prevent or mitigate outbreaks of food-borne illnesses, including those that resulted from internationally traded food. The survey report should include a summary of actions taken or decisions made by the Food Standards Programme, the Codex Commission and the Secretariat in response to food borne illness trends over the past decade.
• The Independent Evaluation report should suggest that WHO and FAO commission an independent audit of the extent of implementation of Codex standards and related texts in member countries’ legislation and regulations. The survey would also ask members to identify impediments to adoption and implementation of Codex standards and related texts. The survey should contain a bibliography of Food Standards Programme publications and seminars on advice to governments. Related to this survey, FAO and WHO should commission case studies by independent consultants to determine the public health impacts of selected food safety standards and codes of practice. Information from this survey could be used for a communications strategy to facilitate adoption, implementation and enforcement of standards, as member budgets allow. The auditors would work with FAO and WHO regional officers to follow up an electronic survey of regulations, regulatory personnel and inventories of infrastructure and staff, to conduct on-site inspections to be able to report on how standards are being implemented. In the best of all possible worlds, auditors might be able to obtain enough information to make an informed judgment about the effect of the standards on food safety and public health objectives.
• FAO and WHO should commission a survey and bibliography of the state of SPS budgets, infrastructure and personnel among all member countries during the past ten years (1992-2002), in order to have baseline data about the resources for implementing and enforcing standards. The surveys should disaggregate those government budgets dedicated to domestic food safety programs from those dedicated to export programs, insofar as this is possible. In countries where the food industry has a delegated legal responsibility to companies for implementing national food safety regulations, members should obtain, if necessary, legal authority to get documents necessary to produce commodity specific industry SPS budget and infrastructure profiles. Codex members should obtain from food companies estimates of budgets, personnel and infrastructure dedicated to food safety. Insofar as public opinion holds such companies accountable for producing safe food,⁶ and insofar as government have delegated responsibility for doing so, data is needed to demonstrate whether they have adequate means for carrying this responsibility.
• FAO and WHO should commission a survey, perhaps with the assistance of the World Customs Union, to develop a statistical and narrative profile detailing reasons for rejection of food exports at destination. The survey would look at SPS, TBT and customs issues given as grounds for rejection, and would look at the state of information technology integration of inspection and customs services. The survey could include case studies of export rejections and how they were resolved. The study would also seek to estimate the value of those rejected exports and the extent of re-exportation.
• FAO and WHO program evaluation staff should propose a budget and plan for commissioning these recommended studies to be presented to the annual meetings of WHO and FAO and to request member donations to fund them. Once the budget and plan are approved and the financing is in place, the evaluation staff should set a deadline for completion of the surveys and studies. We think that two years is a reasonable amount of time to develop a long overdue data base to guide the work of Codex and the Food Standards Programme.

Despite the lack of baseline data about the effects of Codex standards for public health, and for understanding the reasons for rejection of exported foods, the Chairperson Tom Billy of the Codex Alimentarius Commission has proposed a strategic framework that, among other goals, would "facilitate faster consideration and finalization of draft standards across committees."⁷ The Codex Commission will be asked to approve the accelerated plan for harmonizing standards at its 2003 meeting. The plan is being marketed aggressively, particularly concerning the potential benefits of harmonized standards for increasing the opportunity for market access for products from developing countries. (The need for accelerated standard setting has also been argued for in terms of the need to incorporate rapidly changing scientific knowledge about food safety problems, particularly in microbial contamination, into Codex standards. We respond to this argument in the section of the relation of the Joint Expert Bodies and consultations to Codex.) However, many concerns have been voiced about the plan, not the least of which is whether developing country Codex members will be able to participate in the negotiations of an accelerated schedule for harmonization, much less be able to implement the harmonized standards.⁸ If Codex accelerates the standard setting process without something like the database proposed above for determining the effect of past standards, an uninformed acceleration of the standard setting process could result in less implementation of standards and less knowledge about the effect of standards on public health.

To assist Least Developed Country participation in Codex meetings, an FAO/WHO Trust Fund of U.S. $98 million for 49 countries has been proposed. Proponents of the Fund hope that funding commitments could be gathered in three to five years, i.e. two to four years after the would-be approval of the plan for accelerating the adoption of standards.⁹ Such a fund, the need for which has been acknowledged for years, is overdue. At the latest Codex Commission meeting, fewer than half of Codex’s nearly 170 members sent delegations. At most Codex Committee meetings, less than a quarter of members participate. At Codex working group meetings, still fewer members participate. For example, at a crucial meeting in 2001 towards developing international guidelines on risk analysis of allergenicity in genetically engineered food, only nine members sent delegations.

However, the current status of the Fund is that of a static "pot" of money, rather than a continuous funding mechanism whose interest on principle only could be spent. Given the number of Codex meetings (about 30 a year if workshops and regional meetings are included) and the time needed to develop a critical mass of staff on Codex issues, the effect of this Fund may be very limited and short-lived. Furthermore, the proposed fund to facilitate LDC participation in Codex negotiations, even if it is financed, does not address the greater developing country concern that they have not been able to implement and enforce existing Codex standards and the WTO SPS Agreement, much less implement an accelerated schedule of standards. This lack of capacity for implementing standards is a subset of the greater capacity building crisis in public health that WHO is addressing through its Commission on Macroeconomics and Health. Referring to the work of the Commission, Deepak Gupta has written that developing country public health expenditure averages just U.S.$4 per capita, so that giving food safety a priority in public health is a great political, technical and financial challenge.¹⁰ Dr. Gupta might have added that for many developing countries, structural adjustment demands on developing country government budgets often entail cuts to public health programs. Given such demands, perhaps only privately exported foods might meet Codex standards, with no or extremely little national public health benefit.

World Bank economists Michael Finger and Phillip Schuler note that just to implement the WTO agreements on SPS measures, trade-related intellectual property rights, and customs valuation costs a typical developing country U.S.$150 million, i.e. the cost of all development programs in a year for many Least Developed Countries.¹¹ More specifically, as an example of the difficulty of implementation, a government analysis of the compliance costs with the SPS Agreement and Codex standards for Sri Lankan cocoa and spice exports estimates that training costs alone for the country’s 70,000 spice traders would be about U.S.$1.95 million.The government has a budget of just U.S.$24,000 for such training. Then, for the training in Codex standards to result, in theory, in greater exports and export revenues, Sri Lanka would have to acquire better storage facilities and drying and processing technology, to avoid microbial contamination.¹² Cases studies about the costs of implementation are still relatively few. Such studies, together with those demonstrating the public health benefits of implementing food safety standards, are needed to document cost-benefit arguments for the implementation of standards.

The concern over adoption and implementation of Codex standards is part of the larger debate over the implementation of World Trade Organization agreements. In a February 5^th speech to U.S. government and industry officials, World Trade Organization Director General designate Supachai Panitchpakdi said that current proposals to limit WTO technical assistance to that for undertaking negotiations on new topics of interest to developed country members was wholly inadequate. He suggested that unless technical assistance and capacity building were offered to actually implement the WTO agreements, rather than merely to better understand WTO rules and negotiate new rules, the next round of negotiations would not succeed.¹³ Likewise, the harmonization of SPS standards through Codex can only be a tool for development if they can be implemented and enforced. Otherwise, those standards, as unfunded mandates, will offer the appearance, but not the substance of consumer health protection, and the promise, but not the reality for fair trade.

Despite the lack of means for most Codex members to implement Codex standards and related texts, the Codex Alimentarius Commission and its subsidiary bodies have been subject to overwhelming pressure from the global food industry and its government proponents to "harmonize" health and safety standards for the sake of trade. Delegates at recent Codex meetings have complained in the hallways that they don’t feel that they are deliberating food safety at all. Some delegates propose "stand still provisions," "trade facilitation" and other non-safety provisions. The Codex Secretariat has admonished delegates in vain that such terms offend the decorum of what are supposed to be meetings on science-based standard setting. Some delegations have succeeded in moderating their decorum, at least to the extent of allowing food safety officials, rather than trade promotion officials, be the titular heads of delegations. However, a change in delegate decorum does not address the structural subordination of Codex standards and related texts to the "least trade restrictive" norms of the World Trade Organization agreements on sanitary and phyto-sanitary measures and technical barriers to trade.

WTO members are legally obligated to develop SPS standards that are "least trade restrictive," rather than "most health promoting." In support of meeting this obligation, some discussions in Codex have tried to balance econometrically the estimated trade benefits of lower SPS standards with a trade related Appropriate Level of Protection (ALOP), measured in terms of estimated incidence of mortality due to a specific standard. A few such econometric studies have been cited as evidence for lowering Codex member standards, usually those of the European Union, in such a way that would promote fair trade with a level of harm to public health determined as an acceptable ALP by regulatory officials. For example, in October 2001, the World Bank published a paper that suggested "adopting a worldwide [i.e. Codex] standard for aflatoxin B1 -- the most potentially toxic of all aflatoxins -- based on current international guidelines is found to increase the level of cereal and nut trade among the countries studied by $US 6.1 billion from the 1998 levels."¹⁴ The paper notes that the EU lowered its aflatoxin B1 standard as a result of "consultations with its trading partners" and a 1997 Joint FAO/WHO Expert Committee on Food Additives (JECFA) study that determined "reducing the aflatoxin standard from 20 ppb (part per billion) to 10 ppb will decrease 2 cancer deaths a year per billion people."¹⁵ Apart from errors in the accuracy of econometric forecasting, there are methodological controversies in the econometric modeling of trade e.g. lack of analysis of the terms of trade, of distributional effects and of development benefits, and in this case, the model’s reduction of public health benefits to those of mortality incidence. Similarly controversial are the limits of risk assessment and risk management in analyzing alternatives to achieve public health objectives.¹⁶ Nonetheless, it seems likely that for the sake of trade facilitation, econometric arguments to show trade volume increases, if not a demonstration of trade benefits, will be adduced as a Codex recognized Other Legitimate Factor to be taken into consideration when developing standards.

In view of the difficulties of implementing food standards, despite the trade related pressures to accelerate the standard setting process, we believe the FAO and WHO should consider the following proposals:

• National SPS Action Plans: At the FAO/WHO Global Forum of Food Safety Regulators, Dr. Deepak Gupta sought to enhance the role of food safety in public health by calling for the "preparation of a National Action Plan based on an objective needs assessment. This assessment would provide data to be used by member governments and Capacity Building agencies to set priorities, make decisions about programme activities, and allocate resources. ... Once the plan is prepared elements of it could be posed for bilateral assistance."¹⁷ The national strategy model would supervise various bilateral food safety projects so that they would not either duplicate each other or work at counter purposes. Gupta also proposes the creation of a team of food safety officials in each WHO Regional Offices and FAO Regional Offices.¹⁸ One of the many tasks that these teams could perform would be to assist and coordinate preparation of the members’ budget history and infra-structural capacity for both domestic and export oriented food safety programs. FAO and WHO should commission a project to Gupta’s proposal, including a plan and budget for regional food safety offices.
• Global Food Safety Fund: The FAO and WHO budgets have been stagnate for the past decade, and its current financing, relative to FAO and WHO responsibilities, can only be described as meager and perilous.¹⁹ Nonetheless, to begin to implement food safety measures in the context of an overall national plan, Gupta proposes the creation of a Global Food Safety Fund.²⁰ Immediately the question of the financing of such a Fund arises. Should the Fund be donor driven, like the one-time $98 million funded envisioned for LDC Codex participation that must be replenished by donors when empty. Should funding be sought from a private donor, such as the Bill and Melinda Gates Foundation? Or should such a fund be financed by an independent, continuous funding mechanism managed jointly by WHO and FAO, but less subject to donor pressure? Our own preference is for the latter mechanism. It would be worth studying the feasibility of establishing a small Tobin-like tax on speculation in the agricultural commodities futures and options exchanges, levied on a per transaction basis. With the entry of huge mutual funds and hedge funds speculating in the futures and options market grain traders recognize privately that the price volatility of agricultural commodities has less to do with the relation of supply and demand, and more to do with the movement of speculative money. A Tobin-like tax could have a salubrious effect on commodities price volatility in the futures and options market, while also providing a continuous funding basis for the terribly under-funded food safety programs of developing countries.
• Codex Contact Points and Electronic Participation in Codex Meetings: If LDC participation Trust Fund monies are committed, FAO and WHO should take a decision to dedicate X percentage of the monies to electronically equipping the Codex Contact Points from LDCs to enable them to table conference room documents. The decision would require an accountability mechanism to ensure that the monies were funneled through regional FAO/WHO offices to Codex Contact Points in LDCs for use in Codex related work. An annual report from the Codex Contact Point would be required on Codex related work facilitated electronically. The CAC should take a decision to instruct Codex chairs that such electronic submissions must be presented for discussion, whether or not representatives from the country that tabled the CRD are physically present at a given Codex meeting. Such electronic participation does not enable the kind of exchange that goes into the wording of Codex documents. However, enhanced opportunities and facilities for electronic participation might encourage some participation by the half of the non-participating Codex member countries, particularly if there is the political will to establish the aforementioned financing mechanism for standards implementation to the benefit of public health.
• Preventing Negative Impacts of Structural Adjustment on Food Safety and Public Health Programs: FAO and WHO should work with the publicly financed international financial institutions, national public health organizations, food safety officials and non-governmental organizations to determine how food safety programs budget and infrastructure have been affected by structural adjustment conditionalities. The resulting report or reports could be used in the drafting of international financial institution Country Strategy Plans to minimize reductions to food safety budgets in countries receiving IFI loans.

According to the original mission of Codex, all Codex standards and related texts are, in theory, advice to governments whose implementation is voluntary. However, since the entry into force of the WTO SPS Agreement, all Codex standards and related texts are potentially a norm of evidence in a trade dispute or a threatened dispute, as to whether or not WTO members are conforming to the SPS Agreement. Recent trade related strategies to confine the scope of application of Codex texts to "Codex only" are a further sign of the extent to which the Food Standards Program has departed from its historic mission of giving advice to governments. Because of the status of Codex standards and related texts as potential evidence in trade disputes, the role of the Joint Expert Bodies (JEBs), in providing the scientific judgments upon that are most often used to justify the standards, has become particularly contentious.

Quantified risk assessment has become the gold standard for standards, according to the voluntary guidelines approved by the WTO SPS Committee in July 2001. Given the importance assigned to quantitative risk assessment in setting standards, the Codex Alimentarius Commission, as a kind of global risk manager, should ensure that the data in scientific literature reviewed by the JEBS comes from a wide and representative sampling of Codex members. Unfortunately, presently only the companies and governments that can afford to gather and analyze that data are providing the analytic basis for nearly all Codex standards. Despite the universal validity claimed for Codex standards, susceptibility to food borne illness or allergic reactions is known to vary according to many factors, e.g. lactose intolerance in non-Caucasians. While only a narrow data base is needed to establish that harm will come to consumers by eating foods contaminated with lead or with dioxin, the validity of other standards might be strengthened by widening the data base from which they were derived.

In his paper for the Global Food Safety Regulators meeting, Dr. Deepak Gupta suggested, and we concur, that the SPS data base reviewed inter alia by the JEBS, as a kind of risk assessor, needs to be widened, and the laboratory infrastructure for data analysis improved.²¹ He has called for collection and analysis of data from developing countries for the peer-reviewed literature that is debated by the JEBS and consultations. In the absence of a substantial budget increase in both FAO and WHO to collective such data on food contaminants and other causes of food-borne illness, its seems likely that the JEBs will continue to rely on risk assessment literature reviews based on the data generated in about 20 of 170 Codex members. Continued reliance on such a narrow data base for standard setting may lead to more challenges to at least some of the standards, and put into question the overall validity of the Codex standard setting process. Dr. Gupta notes that India is in the process of applying to the World Bank for a loan to establish a foodborne disease surveillance project, which, among its other benefits, would begin to provide much needed data.

Given the heightened importance of the JEBs in the standard setting process, the relatively narrow current data base in the literature on food-borne illness, and the increasing workload of the JEBs, particularly if the Commission adopts the plan for accelerated standard setting at its 2003 meeting, we recommend the following:

• Codex has begun to take steps to reduce the potential for conflicts of interest among the scientists serving on JEBs and financial stakes they may have personally, through family members or through their academic affiliations in food or feed products subject to the standard-setting process. These steps must be implemented and enforced. JEB reports containing the work of members whose lack of full disclosure of conflict and potential conflict of interest is subsequently revealed should be reviewed to ensure that the scientific validity of the JEB report is sustained.
• The Food Standards Program should select a few standards that apply to selected foods commonly consumed in selected developing counties and should seek funds, whether from private foundations or from international financial institutions, to gather data and analyze data to determine whether analysis of that data would show substantial variation from the risk assessment of data used to set said standards. Results from such a pilot project might be used to obtain funding for the larger project of collecting developing country food safety data, as outlined in Dr. Gupta’s paper.

The JEBs are under-funded and cannot meet frequently enough to carry out the work demanded of them. This lack of resources, not addressed at the 24^th meeting of the Commission has put pressure on them to rush to provide evidence for Codex. With the decision for JEBS to undertake work on microbial contamination, the case for a substantial increase in funding becomes all the greater, particularly if the next Commission decides to adopt the Chairperson’s plan for accelerated standard setting further impeding the ability of JEBs reports to reflect the best available science is the fact that their own reports are not peer reviewed. Because it is difficult to change a Codex standard once it is set on the basis of a JEB report, peer review is all the more important, even if it requires extra time and resources. Absent peer review, neither the public health objectives nor the fair trade objectives of the Codex mandate can best be served.

The acceptance of JEB reports by consumers will be enhanced if Codex recognized consumer organization representatives are allowed to participate in JEB meetings, and to review documents in preparation for those meetings. Given the decline of public funding for education and the extent to which university research now depends financially on contracts with corporations,²² scientific experts with industry ties may bring with them an industry perspective to the risk analysis process. To balance the perspective of what has been called "the academic-industrial complex"²³, scientifically literate consumer organization representatives may be able to bring perspectives to the attention of JEBs that will enhance JEB reports to be used as a basis for standard setting.

Another factor complicating the work of the JEBs is the extent to which documents under their review are claimed to be confidential business information (CBI), for example, concerning pesticide residue or food additive residues. (According to the U.S. Department of Agriculture’s Inspector General, CBI status has been extended far beyond information pertaining to standards, to cover such related texts as company developed Hazard Analysis Critical Control Point plans!²⁴) We believe that no information concerning products or processes pertaining to public health should be classified as CBI. New standards should not be derived on the basis of CBI. Existing standards derived from CBI should have CBI declassified as public health information and subject to the aforementioned peer review of JEB reports.

In view of the problems outlined above, we believe that the FAO and WHO governing bodies should consider the following measures:

• FAO and WHO should commission an independent scientific panel to review the process by which JEBs review and present scientific evidence to Codex bodies for the purpose of setting standards. The panel should also review whether JEB panels have had sufficiently broad and interdisciplinary expertise to determine public health effects of matters under their review. The panel should have the authority to submit selected JEB reports for peer review in pertinent scientific journals.
• FAO and WHO should determine an adequate bi-annual budget for JEBs, whether or not the Chairperson’s accelerated standard setting plan is adopted by the Commission. A trust fund for the Joint Expert Bodies and consultations is urgently needed, and it too should be an ongoing funding mechanism. A $20 million blind trust fund could yield as much as $2 million a year (conservatively invested and subtracting administrative fees) to finance JEB work. The new work concerning microbial contaminants has a degree of scientific uncertainty about it that is likely to require more meetings to come to recommendations on which Codex bodies may act.
• FAO and WHO should adopt a policy, to be conveyed to all Codex bodies, on what may be considered Confidential Business Information. As noted above, informing pertaining to food safety and public health may not be classified as CBI for purposes of the Food Standards Program.
• The FAO annual Conference and the World Health Assembly should adopt resolutions in favor of having consumer organization representatives on the JEBs and expert consultations. The Codex Secretariat should report these resolutions to its members, who should adopt the resolution at the next meeting of the Commission.

Presently, Codex members that can afford to host the Codex Committees do so, with the result that their meetings, and the Codex process are dominated by perhaps a tenth of the membership and international non-governmental organizations based in those countries. Proposals have been made to strengthen developing country participation in the Food Standards Program by appointing developing country officials as vice-chairs or co-chairs of Codex Committee and Task Force meetings. These proposals have been rejected by developing country officials as inadequate and even as patronizing.

• FAO and WHO members would be better served if Codex members that currently host Codex Committee meetings were to contribute to a General Trust Fund whose interest on principal would be used to help fund Codex and other Food Standards Programme meetings in developing countries. Countries would apply to the Trust Fund Board to host committees for a certain period of time, e.g. four years, at the end of which time they could opt to host the Committee for another four years under their own financing. Among the qualifications required for the application would be sustained evidence of an active national Codex office or Codex contact point participating in Food Standards Programme meetings and in meetings with national non-governmental groups on food standards matters. This fund would be apart from that to facilitate the participation of Least Developed Country officials in Codex meetings.

Much has been said about the understaffing and overwork of the Codex Secretariat. Little more needs to be added here, except to marvel that they have been able to do so much in straitened circumstances. Whether or not the plan for accelerated standard setting is approved, the staff of the Food Standards Programme needs to be increased and diversified in its scientific expertise, particularly in public health disciplines.

One complaint heard repeatedly at Codex meetings is that the translations of draft Codex texts are neither timely nor accurate. Because Codex negotiations are usually held in English, non-English speakers and non-native English speakers often comment that their proposals are not translated or are even ignored. Translation and interpretation matters have become particularly controversial when large amounts of proposed draft text are being changed and the chair is pushing for consensus on many changes.

• Any reform of the Food Standards Programme staff should include an agreement with FAO and WHO to provide translators and interpreters who specialize in matters within the remit of the Food Standards Programme. Codex Committee and Task Force would likewise provide specialized interpreters and translators.
• The Codex Secretariat ask Codex Committee chairs whether they would use computer technology to enable texts and proposed changes to texts to appear on a large computer screen in the official FAO and WHO languages. Such a visual presentation of the text might assist meeting participants’ comprehension and avoid misunderstandings.

One sources of controversy in Codex meetings that can compromise the validity of the standard setting process is the conduct of Codex committee and task force chairs in determining which standards and related texts are forwarded to the next step of the Codex deliberation process. Until such time as the Commission decides to give the chair the power to call for member votes to adopt or reject proposed draft texts, the chair, assisted by the Secretariat, has the often difficult and unenviable task of trying to determine whether and when there is consensus among the participants. There are instances of Codex chairs ignoring numerous procedural and substantive objections to advancing a standard or related text to the next Step. Some of these objections could be removed by relatively simple solutions, such as timely translations of proposed changes in draft texts. Other objections will not be so easy to resolve without the possibility of applying sanctions to Codex chairs who advance standards in defiance of the Codex norm of consensus.

• The CAC should ask the Committee on General Principles to draft language to govern the conduct of Codex chairs that advance standards in the absence of consensus. The CCGP should consider sanctions on chairs, such as removal from the role of chair of members whose representatives abuse the role of chair at more than one meeting. Another appropriate sanction would be return of the standard or related text to the step of deliberation prior to the chair’s abuse in advancing a text without consensus or a vote. CCGP should also be asked to propose under what conditions Codex chairs may call for a vote on a standard or related text when no clear consensus is possible.
• To simplify the agenda of Commission meetings and create more time for debating controversial issues, the Food Standards Programme should consider making the adoption of numerically defined standards by electronic means over a period of two weeks. Only controversial standards would be presented for approval to the flesh and blood CAC.
• To improve the overall discussion of public health related food safety issues, the Food Standards Programme should take initiatives to engage both international public health organizations in the work of Codex. National Codex Committees and Codex Contact Points should be urged to get input from national public health organizations on member country position papers for Codex meetings.

At the 24^th Session of the CAC, the Commission rejected a proposed Other Legitimate Factor that would have instructed Codex committees to ensure that their standard setting would not have negative consequences for the goals of other multilateral agreements.²⁵ Upon rejection of this proposed OLF, biotechnology industry representatives seated behind Consumers International broke into wild applause. Apparently these representatives were concerned that "free" trade in their products and services might be constrained if Codex were to deliberate in such a way as to avoid adopting standards that might have a negative environmental impact. Nonetheless, there are undeniable relations between public health and environmental health issues in the production and consumption of food. For example, the current trade related opposition to considering these relations in a multilateral context will hamper Codex’s ability to work to avoid invasive species that could result from the multiple functions of some commodities as seed, as well as feed and food. Standards on veterinary drug residues for the purpose of combating human antibiotic resistance resulting, in part, from the non-therapeutic use of antibiotics in animal feed may have little public health effect if they ignore FAO codes of practice on animal husbandry that would avoid the need for non-therapeutic use of antibiotics on animals.

The Secretariat can point to the traditional participation of some intergovernmental organizations and its participation as an observer to a meeting of the Convention on Biological Diversity.²⁶ However, such participation is not the same thing as a decision by the Commission to become engaged in the interdisciplinary problems of public and environmental health. By isolating the work of Codex from public health issues with an environmental or animal welfare component, Codex risks making its work only partially relevant to existing and emerging problems of food-borne illness and food related public health problems. To counter this isolationist tendency, we propose:

• The Commission appears to have rejected the possibility of adopting as an Other Legitimate Factor in the Codex decision making process the OLF that would instruct Codex bodies to avoid adopting standards that would have a negative impact on recommendations taken by other multilateral intergovernmental bodies. However, we believe that the Joint Food Standards Programme should commission a study on systemic solutions to food related public and environmental health problems in which Codex standards and related texts might play a role.
• An expanded Secretariat should employ at least one staff member with expertise in environmental health and another with expertise in animal welfare issues. These staff members would be among those that should participate as observers in multilateral intergovernmental meetings on food and feed related issues.

We have identified several features of the currently dysfunctional relationships between the proliferation of food standards, the inability of most Codex members to implement and enforce them, and the consequent undemonstrated lack of fulfillment of the Codex mandate to protect consumer health. We have described some of the contributing factors that have led to the shift of Codex to become a point of reference in standards, guidelines and codes of practice for international trade. These include:

• Although the purpose of Codex is to provide recommendations that countries may adopt, the designation of certain recommendations that may have adverse trade consequences for some countries as recommendations to apply only "within Codex" raises fundament questions of the value and purpose of Codex, if it is not to give advice to governments;
• The introduction of econometric justifications to support Codex actions to increase the level of harm in standards proposed for adoption justifies the substitution of trade values for humane safeguards implicit in health standards that should be left to national criteria;
• Lack of baseline data about food standards related public health data leads to a number of critical problems, including the inability to measure the value and benefits of Codex, assess the impact of the adoption of Codex standards or evaluate the response of Codex to the increase in the level and incidence of food borne illnesses globally;
• Lack of technical and financial support to build and sustain a health infrastructure capable of adopting and implementing Codex standards raises questions of the value of Codex in development programs;
• The emphasis on an accelerated process for adopting standards will accelerate the role Codex as a reference point for trade, and will impose on country members a system from which only a minority of members, i.e. those with the infrastructure to implement the standards, will benefit. In the absence of a reliable data base on the adoption, implementation and enforcement of Codex standards, any public health benefits of an accelerated standard setting process will remain conjectural;
• Codex can ensure its claim to global status only through full participation of developing countries as Commission members, a condition that depends on the consensus model in decision making. However, the repeated instances of chairs of committees and working groups declaring consensus when its absence is obvious threatens to erode the confidence of member countries as well as the public in the commitment of Codex to protecting health.

Our outline of some dysfunctionalities in the implementation of the Codex mandate to protect consumer health, as well as to ensure fair trade, provides the basis for itemizing in a protocol the criteria for an international body on health standards for food safety that would raise two critical issues:

1. Since the role of the Food Standards Program has shifted to become a standards reference point for trade facilitation and dispute resolution for the World Trade Organization, what intergovernmental entity will strengthen the ability of FAO/WHO member countries to implement and enforce health related food standards in concert with the participation of their citizens?
2. Will a Codex dedicated to accelerating the adoption of standards, which currently the majority of its members cannot implement and enforce, be able to reform itself to advise members on how to implement and enforce health standards for food safety? Or should a new institution be created to carry out that task?

We hope that the evaluation team will again meet with all parties interested in this review following the publication of its interim report. Again, we thank you for the opportunity to present our views and to participate in this process.

1 | Suppan has been participating in Codex Committee and Commission meetings, both as a non-governmental advisor on U.S. delegations and as a Consumers International delegate, since 1999. He has commented on CI positions concerning the Codex Committee on General Principles, the biotechnology task force, the Committee on Export/Import Inspection and Certification, the Codex Food Labeling Committee and the Codex Committee on Meat and Poultry Hygiene. He has also serve on U.S. delegations to Codex meetings.

2 | Leonard, a former food safety and consumer protection official in the Kennedy, Johnson and Carter administrations of the U.S. government, has participated in Codex work as a non-governmental advisor to U.S. delegations, since 1990. His writings on Codex are too numerous to mention but many of them can be found in NUTRITION WEEKLY, as publication of the Community Nutrition Institute.

3 | "WHO Global Strategy for Food Safety," Revised draft of 8 January 2002 at 3, 5 et passim.

4 | "Terms of Reference of the Joint FAO/WHO Evaluation of the Codex Alimentarius and Other FAO and WHO Work on Food Standards,"

5 | Digby Gascoine, "Harmonisation, Mutual Recognition and Equivalence -- How and What is Attainable" Conference on International Food Trade Beyond 2000: Science-Based Decision, Harmonization, Equivalence and Mutual Recognition, (Melbourne, Australia; 11-15 October 1999) FOOD AND AGRICULTURE ORGANIZATION, ALICOM 99/21, para. 8.

6 | "Food Companies Held Accountable Ahead of Governments for Ensuring Safe Food: Results of New 10-naiton Survey," ENVIRONICS INTERNATIONAL, 22 May 2001.

7 | "Chairperson’s Action Plan," CODEX ALIMENTARIUS COMMISSION (24^th Session; 2-7 July 2001), ALINORM 01/6-Add.1, para. 8.

8 | It should be noted here that developed country members too have had difficulties in demonstrating improvements in public health through the implementation of food safety measures, e.g. that industry controlled Hazard Analysis and Critical Control Point programs have decreased pathogen incidence in food. E.g. see the U.S. Department of Agriculture’s Office of the Inspector General’s "Food Safety Initiative: Meat and Poultry Products, Report Nos. 24001-3-At, 24601-1-Ch, 24099-3-Hy and 24601-4-At (Washington, DC: June 2000). However, the difficulties of developed country implementation of food safety standards have not been a focus of the reform of Codex to accelerate the standards setting process.

9 | "FAO proposes food safety fund for least developed countries," FOOD CHEMICAL NEWS, Vol. 43, Issue 14 (21 May 2001).

10 | Deepak Gupta, "Capacity Building and Technical Assistance -- New Approaches and Building Alliances", FAO/WHO GLOBAL FORUM OF FOOD SAFETY REGULATORS (Marrakesh, Morroco; 28-30 January 2002) (GF 01/12), 2.

11 | J. Michael Finger and Philip Schuler, "Implementation of Uruguay Round Commitments: The Development Challenge," THE WORLD BANK (October 1999), 21 at http://www-wds.worldbank.org/

12 | Anura Herath, "Cost of Compliance of Sanitary and Phytosanitary Requirements in Beverages and Spices in Sri Lanka," paper presented at a CUTS/UNCTAD International Workshop, "Negotiating Agenda for Market Access: Cases of SPS and TBT," at http://cuts.org/sps-analysis_srilanka.htm/

13 | "Supachai Ties Round’s Success To Improved Technical Assistance," INSIDE U.S. TRADE, 8 February 2002.

14 | John Wilcox and Tsunehiro Otsuki, "Global Trade and Food Safety: Winners and Losers in a Fragmented System," WORLD BANK DEVELOPMENT RESEARCH GROUP (October 2001), 1.

15 | Ibid., 6.

16 | E.g. Mary O’Brien, "Alternatives Assessment: Part of Operationalizing and Institutionalizing the Precautionary Principle," in Protecting Public Health and the Environment: Implementing the Precautionary Principle, ed. C. Raffensperger and J. Tickner (Island Press, 1999), 207-219.

17 | Deepak Gupta, "Capacity Building and Technical Assistance -- New Approaches and Building Alliances", FAO/WHO GLOBAL FORUM OF FOOD SAFETY REGULATORS (Marrakesh, Morroco; 28-30 January 2002) (GF 01/12), 3.

18 | Ibid., 4.

19 | See "Status of Contributions", FOOD AND AGRICULTURE ORGANIZATION, Thirty-first Session (2-13 November 2001), C2001/INF/13.

20 | Gupta, "Capacity Building and Technical Assistance -- New Approaches and Building Alliances," 5.

21 | Ibid. 5-6.

22 | E.g. Eyal Press and Jennifer Washburn, "The Kept University," THE ATLANTIC MONTHLY (March 2000), 39-54.

23 | Ibid. 40-41.

24 | "Food Safety and Inspection Service: HACCP Implementation," USDA/OIG-A,24001-3-At, Section I, 10.

25 | "Consideration of Proposed Amendments to the Procedural Manual of the Codex Alimentarius Commission," JOINT FAO/WHO FOOD STANDARDS PROGRAMME, CODEX ALIMENTARIUS COMMISSION (May 2001), Alinorm 01/10, Appendex V, bullet point 7. "[albeit not within the mandate of Codex, certain factors may be taken into account, if recommendations of relevant multilateral intergovernmental organizations exist. Codex standards should avoid having a negative impact on the application of such internationally agreed recommendations.]"

26 | "Relations Between the Codex Alimentarius Commission and Other International Intergovernmental Organizations," JOINT FAO/WHO FOOD STANDARDS PROGRAMME, CODEX ALIMENTARIUS COMMISSION (May 2001), Alinorm 01/8 - Part 1.