7 - Codex Details - Taylor, Rath

http://www4.dr-rath-foundation.org/features/codex_wto.html

Codex Guidelines for Vitamins and Minerals - Optional or Mandatory?

By Paul Anthony Taylor

Introduction

The Codex Alimentarius Guidelines for Vitamin and Mineral
Supplements are a joint attempt by the Food and Agriculture
Organization of the United Nations (FAO) and the World Health
Organization (WHO) to formulate one single standard governing
the sale of food supplements that can be applied throughout the
global market. Under the guise of free trade `harmonization'
the Guidelines are being drawn up by the Codex Committee on
Nutrition and Foods for Special Dietary Uses (CCNFSDU), where
vitamins and minerals are defined as foods. This committee
meets in Germany once every year, usually in November.

Although the Guidelines have gone through several revisions over
recent years it is now becoming increasingly clear that their
eventual effect, once completed and implemented, may be to remove
large numbers of the most effective forms of nutrients from the
global market; set restrictive upper limits on the dosages of all
permitted nutrients; and prevent the sale of all supplements for
curative, preventative or therapeutic purposes without a doctor's
prescription. As a result, the Guidelines would continue to ensure
that the sale of curative, preventative and therapeutic products
remains the exclusive province of the pharmaceutical industry.

As this article will show, the Codex Alimentarius Guidelines
for Vitamin and Mineral Supplements are now without question
the most serious of all the various threats currently facing
the global natural products industry.

A brief history of Codex

The Codex Alimentarius Commission was established in 1963
following resolutions passed at the Eleventh Session of the
Conference of the Food and Agriculture Organization of the United
Nations in 1961, and at the Sixteenth World Health Assembly in
1963. (1). The historical origins of Codex Alimentarius lie in
the Codex Alimentarius Austriacus however, which was a collection
of standards and product descriptions for a wide variety of
foods, developed in the Austro-Hungarian Empire between 1897 and
1911. (2). Austria subsequently actively pursued the creation of a
regional food code, the Codex Alimentarius Europaeus, or European
Codex Alimentarius, between 1954 and 1958. (3). The Council of
the Codex Alimentarius Europaeus then adopted a resolution in
1961 proposing that its work on food standards be taken over by
the FAO and the WHO. (4).

The relationship between Codex Alimentarius and the WTO

The WTO replaced the General Agreement on Tariffs and Trade (GATT)
on 1 January 1995. The GATT itself had been in existence since
1947, as the organization overseeing the multilateral trading
system. (5). The governments that had signed GATT were officially
known as "GATT contracting parties", and upon signing the new WTO
agreements (which include the updated GATT, known as GATT 1994),
they officially became known as "WTO Members". Built upon some of
the ideas and principles that underpin the European Union (6), the
WTO currently has a total membership of 146 countries. (7). In
the mid-1990s Codex Alimentarius signed agreements with the
WTO by which Codex creates trade standards that the WTO uses to
resolve international trade disputes. (8), (9), (10).

Codex is effectively mandatory for all WTO Members

The legal basis for enforcement of the various different
Guidelines and Standards created by Codex comes from the
`Agreement on the Application of Sanitary and Phytosanitary
Measures' (SPS Agreement) and the `Agreement on Technical Barriers
to Trade' (TBT Agreement). Both the SPS Agreement and the TBT
Agreement were included among the Multilateral Agreements on
Trade in Goods, which was annexed to the 1994 Marrakesh Agreement
that established the WTO. (11). Although Codex standards and
guidelines are theoretically voluntary, a new status has in
effect been conferred on them by the SPS Agreement, in that any
WTO Member adopting them is presumed to be in full compliance
with the SPS Agreement. (12).

The net result of this is that even when a country decides not
to use a Codex standard the measure that it operates in place
of that Codex standard remains subject to a range of conditions
set out in detail in Article 5 of the SPS Agreement. (13). The
most important of these conditions is a requirement to take into
account risk assessment techniques developed by "the relevant
international organizations". (14). As it turns out however these
"relevant international organizations" actually include Codex
itself, and in this respect it is notable that the CCNFSDU
is already considering a document entitled `Discussion Paper
on the Application of Risk Analysis Applied to the Work of the
CCNFSDU'. (15). In other words, in the event of a country choosing
not to implement a Codex standard the measure that it operates in
place of that standard still remains subject to Codex guidelines.

Other conditions affecting measures that countries operate in
place of Codex standards include a requirement to take into
account economic factors and the relative cost-effectiveness of
alternative approaches to limiting risks (16); a requirement
to take into account the objective of minimizing negative
trade effects (17); and a requirement to avoid arbitrary or
unjustifiable distinctions in the levels of risk protection that
it considers to be appropriate in different situations, if such
distinctions result in discrimination or a disguised restriction
on international trade (18). As such then, countries that are
members of the WTO are effectively required to implement all
Codex standards by virtue of the fact that they have signed
up to the SPS Agreement. It may not be entirely coincidental
therefore that many countries have already begun taking steps to
implement stringent restrictions upon the dosage and availability
of vitamins and minerals, in preparation for the finalisation
of the Codex Guidelines for Vitamin and Mineral Supplements.
Indeed, the significance of Codex was underscored in 1985 by
United Nations Resolution 39/85, whereby guidelines were adopted
on consumer protection policies. The guidelines advise that
"Governments should take into account the need of all consumers
for food security and should support and, as far as possible,
adopt standards from the ... Codex Alimentarius". (19).

Codex texts are used by the WTO to resolve international trade
disputes

Whilst it may be technically true for the WTO to say that "there
is no legal obligation on Members to apply Codex standards,
guidelines and recommendations" (20), the reality is that Codex
texts are used by the WTO as a means of resolving international
trade disputes (21), and WTO Members are legally obliged to
abide by WTO rulings. Once the Codex Guidelines for Vitamin and
Mineral Food Supplements are completed therefore, all it would
take to begin enacting them globally would be for one of the
participating countries to launch, and win, an international trade
dispute. The global adjudicators in such an instance would be the
WTO Dispute Settlement Body (22), some of the hearings for which
take the form of closed meetings held in private. Appeals to
Dispute Settlement Body rulings are possible, but they have to
be based on points of law such as legal interpretation -- they
cannot re-examine existing evidence or examine new issues. (23).

The WTO does not distinguish between `Standards" and `Guidelines'

Theoretically, there are three levels of acceptance for Codex
texts, namely; `full acceptance'; `acceptance with specified
deviations'; and `free distribution' (which means that the
country concerned undertakes that products conforming with a
Codex Standard may be distributed freely within its territorial
jurisdiction, while domestically produced products sold within
its own borders remain unaffected). (24). The `free distribution'
option has led many people to mistakenly believe that Codex
does not have the authority to impose anything on a country
in terms of domestically produced products sold into its own
internal market. However, because Codex standards are used by
the WTO to resolve international trade disputes, WTO members can
literally have Codex Guidelines and Standards forced upon them,
irrespective of acceptance. Proof of this comes from the Codex
Committee on General Principles, who have stated the following:

The Committee recognized that the current procedures had not
been used frequently and recalled that Codex standards were a
reference in the framework of the WTO Agreements irrespective
of acceptance. (25).

Furthermore, in response to a request from the 22nd Session
of the Codex Alimentarius Committee for the WTO Committee
on Samitary and Phytosanitary Measures (the SPS Committee)
to clarify "how the Committee would differentiate standards,
guidelines or recommendations in relation to the implementation
of the SPS Agreement" by WTO Members, the WTO has informed Codex
that the SPS Agreement does not differentiate between standards
and guidelines (26), (20), and that how a Codex text is applied
depends upon its substantive content rather than the category of
the text. (20). Clearly then, any distinction between `Standards'
and `Guidelines' by the Codex Alimentarius Committee is purely
arbitrary.

The growing influence of the EU upon Codex

The EU is the single most powerful influence upon the Codex
discussions, and a recent European Council document has
acknowledged the increased legal relevance that the various
Codex Alimentarius standards, guidelines and recommendations
have acquired "by virtue of the reference made to the Codex
Alimentarius in the WTO Agreements and the presumption of
conformity which is conferred on relevant national measures when
they are based on such standards, guidelines or recommendations
adopted by the Codex Alimentarius Commission." (27). Similarly,
this document also acknowledges that one of the objects of the
Codex Alimentarius Commission is to harmonise worldwide health
standards. (28).

It now appears increasingly likely that EU health policy will
gradually become the blueprint for global health policy. The
growing similarities between the text of the EU Food Supplements
Directive (29) and the Codex Draft Guidelines for Vitamin and
Mineral Supplements (30), for example, are no coincidence. Basil
Mathioudakis, who was responsible for drafting the text of
the EU Food Supplements Directive, is the head of the European
Commission delegation at Codex, and will now be representing 25
EU countries at the next Codex meeting in Bonn in November 2004
(due to the 10 new countries who will be joining the EU on 1st May
2004). Moreover, the EU will shortly have full membership status
at Codex. (31). The net result of this is that Mr. Mathioudakis,
on behalf of the EU Commission, will now be entitled to wield a
number of votes at Codex equal to the number of its Member States
that are present at the time the vote is taken. (32). Furthermore,
whenever Mr. Mathioudakis exercises his right to vote, the Member
States will not be entitled to exercise theirs. (33). As such,
the EU Member States are now virtually powerless to oppose the
EU Commission at Codex; especially so given the fact that the
majority of the guidelines being drawn up are either already law,
or about to become law, in their own countries.

The likely acceleration of the Codex adoption process

Although formal votes are rarely taken at Codex, both the FAO
and the EU are now in favour of a majority of two-thirds being
sufficient in future for a Codex text to be adopted. (34).
Democratically of course, since the EU, with its soon-to-be
population of 450 million people (35), is allowed 25 votes at
Codex, then the United States, with its population of over 280
million people (36), should proportionately be given at least
15 votes. Under the present system however, the United States
is only allowed one vote, which means that the EU is now in an
extremely powerful position. In fact, at the next Codex meeting
it is very likely that the EU will be able to wield a block vote
consisting of almost one half of all of the countries who are
likely to attend. As such, only another 12 more votes would be
needed over and above the EU's 25 votes to reach a two-thirds
majority. (37). Because only one country, South Africa, is
actively opposing these restrictive proposals for the world-wide
availability of vitamins and mineral supplements, the global
future for natural healthcare now lies at a critical juncture.

Furthermore, both the FAO and the EU have recently stated their
desire to accelerate the work of Codex (38), and have agreed
that the present 8-step procedure should be `simplified' to
a 5-step procedure. (39). Nevertheless, it should be borne in
mind that in order to achieve an adoption in 5 steps it may not
even be necessary to modify the existing procedures, as these
already provide for an accelerated adoption. (40), (41). The
Codex Alimentarius Commission can authorise, for example, on
the basis of a two-thirds majority of votes cast, the omission
of Steps 6 and 7, whenever such an action is recommended by the
relevant Codex Committee (42).

The Codex threat to the Food Supplements Directive legal challenges

The Food Supplements Directive (29) was passed by the EU
Parliament on 13th March 2002, and entered into law in the
EU Member States on 1st August 2003. Its text and intent are
remarkably similar to that of the Codex Draft Guidelines for
Vitamin and Mineral Supplements (30), as its effect, when it
becomes fully implemented on 1st August 2005, will be to remove
large numbers of the most effective forms of nutrients from
the EU market; set restrictive upper limits on the dosages of
all nutrients permitted in the EU; and prevent the sale of all
supplements for curative, preventative or therapeutic purposes
within the EU without a doctor's prescription.

Two legal challenges to the validity of this Directive have now
been launched by groups from the UK; one by the Alliance for
Natural Health (43) in conjunction with Nutri Link Ltd. (44),
and the other by the Health Food Manufacturers Association (45)
in conjunction with the National Association of Health Stores
(46). Both of these challenges have recently been referred to
the European Court of Justice (ECJ), following a High Court
hearing that took place in London on 30th January 2004. The
judge at the hearing, Mr Justice Richards, ruled that there
was an arguable case that the Food Supplements Directive was
unlawful; that a reference to the ECJ was plainly appropriate;
and that it should be made as soon as possible. (47).

However, because of the strength of the EU block-vote at Codex it
is possible that discussions regarding the Codex Draft Guidelines
for Vitamin and Mineral Supplements might even be completed at
this year's CCNFSDU meeting in November. Such an outcome could
have grave implications for the legal challenges to the EU Food
Supplements Directive, because if the Codex Guidelines were
agreed before the legal challenge was completed the UK lawyers
would in essence be arguing for the European Court of Justice to
overturn legislation that was fully in line with a newly agreed
global standard.

Nevertheless, the legal challenges currently being mounted against
the EU Food Supplements Directive are unquestionably crucial
to the future of health freedom in the EU, and their eventual
success could buy valuable time for the growing European health
freedom movement, as well as strike a blow against the text of
what is in effect an EU blueprint for the global regulation of
supplements. However, it should not be forgotten that from the
regulatory perspective Codex is the trump card. Even if the legal
challenges to the Food Supplements Directive are successful,
for example, the Codex proposals could still be implemented as
the global standard, thus effectively overruling any short-term
victory for health freedom in the EU.

Conclusion

As a result of the SPS Agreement, Codex texts, guidelines and
standards are effectively mandatory for all WTO Members. Also,
because the WTO do not distinguish between guidelines and
standards, and the fact that the WTO uses Codex texts to
resolve international trade disputes, a finalised Codex text
would have the ability to override the dietary supplement
laws of all countries - including the United States and its
hard-fought victory in passing DSHEA. Moreover, although the
Codex Guidelines for Vitamin and Mineral Food Supplements are
currently at step 5 of an 8-step finalisation process, the EU
and the FAO have both recently stated their desire to accelerate
the work of Codex such that the adoption of Codex texts could
henceforth be achieved in 5 steps. However, and as previously
stated, in order to achieve an adoption in 5 steps it may not
even be necessary to modify the existing procedures, as these
already provide for an accelerated adoption. As a result of the
stranglehold that the EU are beginning to exert upon the Codex
Alimentarius discussions this outcome therefore remains a very
real possibility for the next CCNFSDU meetings in November 2004.

In summary the EU is now the single strongest influence at Codex
meetings, and the EU Food Supplements Directive is essentially
the blueprint for the Codex Guidelines for Vitamin and Mineral
Supplements. Unless serious changes are made to the way in which
Codex operates therefore, it would not be unreasonable to expect
that other EU health-related legislation, such as restrictive
regulations on nutrition and health claims, will become the
blueprints for still further standards to be enacted on a
globally harmonised basis. In the event of this the planetary
effects upon natural health, and by implication public health,
would be both profound and disastrous.

REFERENCES

1. Understanding Codex Alimentarius. Food and Agriculture
Organisation of the United Nations. World Health
Organization. 2000. p. 11.

2. Ibid. p. 6.

3. Ibid. p. 7.

4. Ibid. p. 7.

5. World Trade Organization
http://www.wto.org/english/thewto_e/gattmem_e.htm

6. The man who built the WTO: an interview with Peter Sutherland.
http://www.opendemocracy.net/debates/article-6-28-1674.jsp

7. World Trade Organization
http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm

8. SPS Agreement. World Trade Organization. URUGUAY ROUND AGREEMENT:
Agreement on the Application of Sanitary and Phytosanitary Measure.
http://www.wto.org/english/docs_e/legal_e/15sps_01_e.htm

9. TBT Agreement. World Trade Organization. URUGUAY ROUND
AGREEMENT: Agreement on Technical Barriers to Trade.
http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm

10. Understanding Codex Alimentarius. Food and Agriculture
Organisation of the United Nations. World Health
Organization. 2000. pp. 24-25.

11. Ibid. p. 24.

12. World Trade Organization
http://www.wto.org/english/thewto_e/whatis_e/eol/e/wto03/wto3_26.htm#note7

13. Ibid.

14. World Trade Organization. The WTO Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS Agreement).
http://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm Article 5;
paragraph 1.

15. Codex Committee on Nutrition and Foods for Special Dietary Uses.

Agenda for Twenty-fifth Session, held at "Brückenforum Bonn",
Friedrich-Breuer-Strasse 17, Bonn, Germany, on 3 - 7 November 2003.
http://www.codexalimentarius.net/ccnfsdu25/nf03_01e.htm

16. World Trade Organization. The WTO Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS Agreement).
http://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm Article 5;
paragraph 3.

17. Ibid. Article 5; paragraph 4.

18. Ibid. Article 5; paragraph 5.

19. United Nations Food and Agriculture Organization (FAO).
http://www.fao.org/news/1999/codex-e.htm

20. World Trade Organization.
http://docsonline.wto.org/gen_search.asp?searchmode=simple
SIMPLE SEARCH for document number 98-1071.

21. Understanding Codex Alimentarius. Food and Agriculture
Organisation of the United Nations. World Health
Organization. 2000. p. 25.

22. World Trade Organization.
http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm

23. World Trade Organization.
http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm#appeals

24. General Principles of the Codex Alimentarius. 4.A.i/ii/iii.
http://www.fao.org/DOCREP/005/Y2200E/y2200e05.htm#TopOfPage

25. Report of the Thirteenth Session of the Codex Committee on
General Principles, held in Paris from 7 to 11 September 1998. Item
6.2; paragraph 43. Revision of the Acceptance Procedure (CX/GP 98/8).
http://www.fao.org/docrep/meeting/005/W9809E/w9809e08.htm#bm08.2

26. World Trade Organization.
http://docsonline.wto.org/gen_search.asp?searchmode=simple
SIMPLE SEARCH for document number 98-0462.

27. COUNCIL DECISION of 17 November 2003
on the accession of the European Community
to the Codex Alimentarius Commission (2003/822/EC).
http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/l_309/l_30920031126en00140021.pdf
Preamble; paragraph 2.

28. Ibid. Preamble; paragraph 1.

29.
http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_183/l_18320020712en00510057.pdf

30. Codex Committee on Nutrition and Foods for Special Dietary
Uses. 25th Session. Bruckenforum, Bonn, Germany 3-7 November
2003. ALINORM04/26. ftp://ftp.fao.org/codex/alinorm04/al04_26e.pdf

31. COUNCIL DECISION of 17 November 2003 on
the accession of the European Community to the
Codex Alimentarius Commission (2003/822/EC).
http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/l_309/l_30920031126en00140021.pdf

32. Codex Alimentarius Commission. Procedural Manual. Thirteenth
Edition. Rules of Procedure of the Codex Alimentarius
Commission. Rule II (3) - Member Organizations. p. 6.
ftp://ftp.fao.org/codex/PM/Manual13e.pdf

33. Ibid.

34. European Community Comments on the Joint FAO/WHO Evaluation
of Codex Alimentarius and other FAO and WHO work on Food
Standards. (Codex Circular Letter CL 2003/8-CAC). p. 9.
http://europa.eu.int/comm/food/fs/ifsi/eupositions/cac/cac_ec-comments_cl2003-8_en.pdf

35.
http://europa.eu.int/comm/eurostat/Public/datashop/print-product/EN?catalogue=Eurostat&product=3-09012004-EN-BP-EN&mode=download

36. http://www.census.gov/main/www/cen2000.html

37. Forty eight countries attended the Codex Committee on Nutrition
and Foods for Special Dietary Uses 25th Session, held at the
Bruckenforum, Bonn, Germany, from 3-7 November 2003. ALINORM04/26.
See ftp://ftp.fao.org/codex/alinorm04/al04_26e.pdf These forty
eight countries included three of the new EU countries (Hungary,
Poland and Slovenia). If the other seven new EU countries attend the
next meeting in November 2004 (and assuming that every country that
attended last year also attends) there will be fifty five countries
attending in total. A two thirds majority would therefore consist
of thirty seven votes. The EU will have twenty five votes.

38. European Community Comments on the Joint FAO/WHO Evaluation
of Codex Alimentarius and other FAO and WHO work on Food
Standards. (Codex Circular Letter CL 2003/8-CAC). p. 1.
http://europa.eu.int/comm/food/fs/ifsi/eupositions/cac/cac_ec-comments_cl2003-8_en.pdf

39. Ibid. p. 8.

40. Ibid. p. 9.

41. Codex Alimentarius Commission. Procedural Manual. Thirteenth
Edition. Part 2: Uniform Accelerated Procedure for the
Elaboration of Codex Standards and Related Texts. pp. 22-23.
ftp://ftp.fao.org/codex/PM/Manual13e.pdf

42. Ibid. Procedures for the Elaboration of Codex Standards and
Related Texts. p. 22.

43. http://www.alliance-natural-health.org/

44. http://www.autismfile.com/nutrilink.htm

45. http://www.hfma.co.uk/

46. http://www.nahs.co.uk/

47. BBC News. http://news.bbc.co.uk/2/hi/health/3445503.stm