On March 2020, a motion for a resolution asking for the creation of parliamentary investigation committee in order to check the applicability, efficiency and influence of Article 44 of the Egalim law was tabled by 24 members of the French National Assembly[i]. The effective implementation of this Article, vis-à-vis some international agreements such as the Comprehensive Economic and Trade agreement (CETA) has been causing a heated discussion in France, especially from environmental and rural associations. Indeed, several topics covered by this agreement were denounced as not being compatible with French and European standards, including with Article 44 of the French Egalim law.[ii]
What is Article 44 of the French Egalim law about?
The “Egalim law” is a French law adopted on October 30, 2018, about the balance of trade relations in the agricultural and food sector and promotes a healthy, sustainable and accessible diet for all[iii].
Article 44 of this law adds an article in the French rural and maritime fishing code, providing the prohibition of the selling and distribution of foodstuffs or agricultural products which contain phytopharmaceuticals or veterinary products or animal feeds not authorized by European regulations or which do not comply with the identification and traceability requirements imposed by EU law[iv]. In other words, this Article addresses the concerns of French producers and consumers about the sanitary quality of food imports and the level playing field between French producers and those in third countries.
The concerns about the implementation of Article 44 of the Egalim law
Several questions were addressed to the French government by Members of Parliament, in order to know how this article would be applied[v]. To this concern, the French minister of Agriculture replied that the French Veterinary and Plant Protection Border Inspection Service (SIVEP) is deploying a monitoring plan for animal products imported into France, which includes the search for residues of chemicals and banned substances. The Minister also reminded the call of the French Government done towards the European Commission in order to quickly implement Article 118 of the 2019/6 European Regulation on Veterinary Medicines[vi] which prohibits the use of certain antimicrobials or uses (growth promoters) for animal products exported from third countries. In addition to inquiries about the implementation of Article 44 of the Egalim law, some Members of the French Parliament even denounced the increasing level of prohibited imported products by the new law[vii]. To this question, the French Minister of Agriculture replied the same answer to the previous one. Other Members of French Parliament also concerned about the implementation of this specific article reminded that its implementation is likely to be undermined, since the EU negotiated trade agreements with MERCOSUR members or the CETA[viii] could contradict this law[ix]. Unfortunately, the answers provided by the French Minister of Agriculture to the above-mentioned questions were generally worded in the same manner, insisting on the same arguments but without giving more details on the ways Article 44 of the Egalim law could be more efficiently applied. In some answers, the French minister of Agriculture expressed its will to create a European Observatory for Health Risks, in order to give all EU Member States a unique database to trigger alerts and/or to guide controls at EU level on imported products[x].
What are the EU protections on this topic?
In his above-mentioned replies, the French minister of Agriculture indicated that Article 44 of the French Egalim law also depends on the implementation of Article 118 of the 2019/6 European Regulation on Veterinary Medicines. Indeed, as Article 44 of the Egalim law states, European regulations regulate the level of phytopharmaceuticals, veterinary products and animal feeds that can be contained in foodstuffs or agricultural products sold in the EU. In simple terms, “phytopharmaceuticals” are drugs derived from plants. They can be used in order to protect plants against harmful organism, influence vital plant processes, ensure plant conservation or destroy unwanted plants[xi]. In this regard, pharmaceuticals are more commonly known as “pesticides”. In addition, veterinary products include vaccines, veterinary medicines, and according to the World organization for animal health, governments must provide appropriate regulations on the authorization, manufacturing, distribution and use of veterinary products in order to both ensure effective and sustainable animal disease control and minimize risks to humans and animals[xii]. Finally, “animal feeds” refers to the food given to domestic animals in the course of animal husbandry.
The 2019/6 European regulation on veterinary medicinal products is a European Union measure adopted in December 2018, which entered into force on January 2020 and which is directly applicable in all EU member states. This regulation lays down rules for the placing on the market, manufacturing, import, export, supply, distribution, pharmacovigilance, control and use of veterinary medicinal products[xiii]. More specifically, this regulation prohibits the use of antimicrobial medicinal products in animals for the purpose of promoting growth nor to increase yield. This prohibition concerns animals or products of animal origin exported from third countries to the EU[xiv]. However, this rule will start to be theoretically effective in January 2022, year of the entering into force of this EU regulation[xv]. Several measures provided by the regulation will also need to be either further detailed or implemented by the European Commission, including the prohibition mentioned in Article 118 of the Regulation[xvi].
The protections provided by the CETA
The CETA[xvii] is a bilateral free trade agreement signed between the EU and Canada on October 30, 2016 and entered into force for its main provisions on September 21, 2017. According to the European Commission, the CETA “will lower customs tariffs and other barriers to trade between the EU and Canada” and “uphold Europe’s high standards in areas like food safety, workers’ rights and the environment”[xviii]. This international agreement is expected to boost growth in both contracting parties. To do so, this treaty abolishes most tariffs on agricultural products. However, according to the CETA, imports need to comply with the rules of the importing market. Sanitary and phytosanitary measures are regulated by Chapter 5 of the CETA. According to this Chapter, its aim is to “protect human, animal and plant life or health while facilitating trade”, “ensure that the Parties’ sanitary and phytosanitary (SPS) measures do not create unjustified barriers to trade”, “and further the implementation of the SPS Agreement”[xix].
Before the entry into force of this agreement, numerous reports were produced about its potential impact. At the beginning of September 2017, a report about the impact of the CETA on the environment, climate and health was addressed to the French Prime Minister[xx]. This report highlighted several concerns about some of the provisions provided by Chapter 5 of the CETA. According to this report, the vagueness of CETA could lead to importing authorized products under lawful regulations that unfortunately do not take into account the precautionary principle. Specifically, Article 5.6 of Chapter 5 provides that “The importing Party shall accept the SPS measure of the exporting Party as equivalent to its own if the exporting Party objectively demonstrates to the importing Party that its measure achieves the importing Party’s appropriate level of SPS protection.” In other words, this Article is based on the importer’s acceptance of the exporter’s SPS measures. This acceptance must be based on the latter’s « objective demonstration » of an « appropriate » level of protection suitable for the importing party and its regulations in force. The report underlines that in this case, nothing is said about the requirements and conditions of the demonstration of the so-called « appropriate » character. The application of the precautionary principle and the control of products under these equivalent measures could therefore be limited. This comment is all the more relevant as the meaning of the precautionary principle is understood differently between Canada and the European Union. In Canada, as long as the scientifically available data do not show a risk, a product can be considered safe, combined with a cost-benefit analysis. On the contrary, in the EU the precautionary principle allows the EU or the Member States of the EU to act against a risk, even before this risk has been scientifically proven[xxi]. In this situation, the smooth and effective implementation of Article 5.6 of Chapter 5 seems problematic.
Another important report was produced in August 2016 by the Council of Canadians – a grassroots organization with supporters and activists across Canada – and several European partners[xxii]. This report highlighted the low level of protections existing in Canada at that time, for example with regard to animal welfare standards or food safety. This report refers to several cases where Canada has a very different approach to food safety compared to European Union’s standards. For instance, it explains that Canada’s regulations allow beef and chicken to be washed and processed with chlorinated water, which is not the case in the European Union. Canada also allows ractopamine, a beta agonist growth stimulant used as a veterinary drug in cattle, swine and turkeys, while the EU prohibits the use of ractopamine. The CETA acknowledges the Codex Alimentarius in the setting of international standards between both Canada and the EU. The Codex Alimentarius is a collection of standards, guidelines and codes of practice adopted by the Codex Alimentarius Commission. This Commission is part of the Joint Food and Agriculture Organization of the United Nations/ World health Organization (FAO/WHO) Food Standards Programme and was established by both the FAO and the WHO to protect consumer health and promote fair practices in food trade[xxiii]. Some years ago, however, the Codex Alimentarius allowed the use of ractopamine residues in meat[xxiv].
Despite some concerns about food safety, a study jointly realised by the Paris Institute of technology for life, food and environmental sciences (AgroParisTech), the French livestock Institute (Idele) and the French Pork Institute (Ifip) concluded that the risk of imports that could destabilize European sectors appears to be relatively low for several reasons[xxv]. These experts highlighted the role of the European Commission in guaranteeing the prohibition of hormones and ractopamine in imported products. In addition, Canada has still a substantial market in the United States for exporting its agricultural products, including meats. They acknowledge, however, that Canada will be offered new opportunities to develop ractopamine-free swine and hormone-free bovine production, stressing for instance that unprocessed ham has a significantly lower price in north American markets, which could help fostering trade between Canada and the EU for this product.
Therefore, at the end of the day, the implementation of Article 44 of the French Egalim law may not be effective soon. Its effective implementation also involves several legal instruments, that need to be combined and enforced in harmony.
Notes de bas de page
[i] Proposition de résolution relative à la création d’une commission d’enquête sur l’applicabilité, l’efficacité et l’influence de l’article 44 de la loi pour l’équilibre des relations commerciales dans le secteur agricole et alimentaire et une alimentation saine, durable et accessible à tous (enregistrée à la Présidence de l’Assemblée nationale le 4 mars 2020) http://www.assemblee-nationale.fr/dyn/15/textes/l15b2730_proposition-resolution.pdf
[ii] For instance : Le Monde, CETA : les agriculteurs français unis dans leur refus du traité (16 July 2019) https://www.lemonde.fr/economie/article/2019/07/16/ceta-les-agriculteurs-francais-unis-dans-leur-refus-du-traite_5489859_3234.html (last visited on 10 May 2020).
[iii] LOI n° 2018-938 du 30 octobre 2018 pour l’équilibre des relations commerciales dans le secteur agricole et alimentaire et une alimentation saine, durable et accessible à tous https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000037547946&categorieLien=id
[iv] The original version provides: « Il est interdit de proposer à la vente ou de distribuer à titre gratuit en vue de la consommation humaine ou animale des denrées alimentaires ou produits agricoles pour lesquels il a été fait usage de produits phytopharmaceutiques ou vétérinaires ou d’aliments pour animaux non autorisés par la réglementation européenne ou ne respectant pas les exigences d’identification et de traçabilité imposées par cette même réglementation. »
[v] For instance: Written question n° 22799, 17/09/2019 by MP Vincent Descoeur addressed to the French Minister of Agriculture http://questions.assemblee-nationale.fr/q15/15-22799QE.htm; Written question n° 22187, 06/08/2019 by MP Nicolas Forissier addressed to the French Minister of Agriculture http://questions.assemblee-nationale.fr/q15/15-22187QE.htm
[vi] Regulation (EU) 2019/6 of the European Parliament and of the Council of 11 December 2018 on veterinary medicinal products and repealing Directive 2001/82/EC https://eur-lex.europa.eu/eli/reg/2019/6/oj
[vii] Written question n° 22794, 17/09/2019 by MP Laure de La Raudière addressed to the French Minister of Agriculture http://questions.assemblee-nationale.fr/q15/15-22794QE.htm
[viii] Written question n° 21910, 30/07/2019, by MP Emilie Bonnivard addressed to the French Minister of Agriculture http://questions.assemblee-nationale.fr/q15/15-21910QE.htm
[ix] Written question n° 21914, 30/07/2019, by MP Sylvie Tolmont addressed to the French Minister of Agriculture
[x] For instance: in the Written question n° 21914, 30/07/2019, by MP Sylvie Tolmont addressed to the French Minister of Agriculture http://questions.assemblee-nationale.fr/q15/15-21914QE.htm
[xi] Ouvry website, Definition of pharmaceutical products https://www.ouvry.com/en/phytopharmaceutical-products-phytosanitary/ (last visited on 10 May 2020).
[xii] OIE, Produits vétérinaires, last visited on 10 May 2020 : https://www.oie.int/scientific-expertise/veterinary-products/ .
[xiii] Article 1 of 2019/6 European regulation on veterinary medicinal products.
[xiv] Article 118 of 2019/6 European regulation on veterinary medicinal products.
[xv] Article 160 of 2019/6 European regulation on veterinary medicinal products.
[xvi] Article 118(2) of the Regulation states that “The Commission shall adopt delegated acts in accordance with Article 147 in order to supplement this Article by providing the necessary detailed rules on the application of paragraph 1 of this Article.” Article 147(1) and (2) provides that “1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Articles 37(4), 57(3), 106(6), 109(1), 115(3), 118(2), 136(7) and 146(1) and (2) shall be conferred on the Commission for a period of five years from 27 January 2019. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for the periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.”
Once the implementation of this Article done, it will be published here: https://ec.europa.eu/food/animals/health/veterinary-medicines-and-medicated-feed/imp-regs-2019_en
[xvii] Text of the Agreement available at: http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf
[xviii] European Commission’s website: https://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/ (last visited on 10 May 2020).
[xix] Chapter 5, Article 5.2 of the CETA.
[xx] Rapport au Premier ministre, L’impact de l’Accord Économique et Commercial Global entre l’Union européenne et le Canada (AECG/CETA) sur l’environnement, le climat et la santé (Septembre 2017) https://www.gouvernement.fr/sites/default/files/document/document/2017/09/rapport_de_la_commission_devaluation_du_ceta_-_08.09.2017.pdf
[xxi] Prof. Dr. iur. P.-T. Stoll, Dr. Wybe Th. Douma, Prof. Dr. N. de Sadeleer and P. Abel “CETA, TTIP and the EU precautionary Principle. Legal analysis of selected parts of the draft CETA agreement and the EU TTIP proposals.” (June 2016), p.9.
[xxii] The Council of Canadians, Food Safety, Agriculture and Regulatory Cooperation in the Canada-EU Comprehensive Economic and Trade Agreement (CETA) https://canadians.org/sites/default/files/publications/report-ceta-food-safety-english.pdf
[xxiv] In July 2012.
[xxv] Paris Institute of technology for life, food and environmental sciences (AgroParisTech), French livestock Institute (Idele) and French Pork Institute (Ifip), Analyse de l’accord de libre-échange entre l’Union européenne et le Canada (AECG/CETA) dans le secteur des produits animaux (janvier 2017).