On the 27th of February 2024, the House of Lords International Agreements Committee published its Scrutiny Report on the UK accession to the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP). The Committee adopted Dr Leonelli’s recommendations (paragraphs 29 to 34 of the Report) and called on the Government ‘to set out how it intends to address the potential risk of equivalence provisions leading to regulatory chill’ (paragraph 35 of the Report).
In her oral and written evidence, Dr Leonelli argued that the equivalence procedure laid out in Article 7.8 of the CPTPP Chapter on sanitary and phytosanitary (SPS) measures could indirectly undermine the UK precautionary approach to food safety and risk regulation. She expressed concerns that this procedure could be potentially applied in the future in such a way as to pressure UK regulators into recognising non-precautionary or less stringent food safety or phytosanitary standards in force in different CPTPP Parties as ‘equivalent’ to precautionary or more stringent UK standards. Under the Article 7.8 procedure, the UK would have to recognise the equivalence of an exporting CPTPP Party’s measure if that state Party ‘objectively’ demonstrates that its own standards achieve the same level of protection as the UK’s standards. This question would be assessed in the light of the WTO dispute settlement organs’ interpretation of relevant provisions in this area. This is problematic, as the WTO dispute settlement organs’ interpretative approach is very difficult to reconcile with a precautionary approach to food safety and risk regulation.
During her oral evidence session on the 17th of October 2023, Dr Leonelli employed the hypothetical example of maximum residue limits (MRLs) of pesticides to illustrate the potential implications of the equivalence procedure of CPTPP. She outlined a scenario where a CPTPP Party unsuccessfully requests a recognition of equivalence of its less protective MRLs, and later has recourse to state-to-state dispute settlement under CPTPP.
Further, Dr Leonelli noted that the application of the equivalence procedure raises further questions surrounding Parliamentary oversight and the category of statutory instruments that would be employed to accept or reject requests for the recognition of equivalence from exporting CPTPP Parties.
You can read the House of Lords International Agreements Committee’s Scrutiny Report here
You can read Dr Leonelli’s written evidence and legal analysis here
You can read the transcript of Dr Leonelli’s oral evidence session here
You can watch the video of Dr Leonelli’s oral evidence session here