Consumers Association of Penang

Giving voice to the little people...since 1970

Proposed TBT Annex in the Trans-Pacific Partnership Agreement

CAP calls on the Ministry of Science, Technology and Innovation (MOSTI) and the Department of Standards (Standards Malaysia) to immediately withdraw a Malaysian proposal that it has tabled at the Trans-Pacific Partnership Agreement (TPPA) negotiations. We believe that this proposal will have potentially dangerous impacts on public health, food safety and consumer choice.

The proposal by the Government of Malaysia was tabled as an annex to the chapter on technical barriers to trade (TBT) at the 15th TPPA negotiations in Auckland, New Zealand, last December, and is currently being negotiated at the 17th round of the TPPA negotiations currently taking place in Lima, Peru.

According to an Inside US Trade report dated 9 January, 2013, Malaysia tabled the proposal which, if accepted by the other 11 countries participating in the talks, would prevent TPPA governments from requiring companies to disclose their proprietary formulas for their products. According to the report, the proposed annex states that ‘governments should not require the disclosure of proprietary formulas unless there is a legitimate need to do so.’ The proposal also requires that in the event that there is a legitimate need for such disclosure, the government requiring the disclosure is to ‘provide protection for the disclosed information’.

We have not been able to fully analyze the proposal as the secrecy of the TPPA negotiations have kept the actual text from public view. However, based on our preliminary analysis of the proposal as reported, there are a number of worrisome implications of the TBT Annex as proposed.

Firstly, the proposed annex raises concerns in relation to the concept and institution of halal consumer products for Malaysia’s Muslim populace. The authorities have yet to explain whether, and how, its proposal to prevent TPPA governments from requiring companies to hand over proprietary formulas for their products will affect the integrity of halal labelling on packaged food products. This is a critical issue for Muslim Malaysian consumers and must be handled with their needs and religious requirements in mind.

Secondly, quantitative ingredient declaration (QUID) on food labelling has become increasingly important as consumers world-wide seek to know the composition of the processed, pre-packaged foods they are purchasing on an increasing basis.[i] The significance of QUID labelling can be seen from the different effects that varying QUID labelling requirements can have in different countries.

- While Thailand’s QUID labelling requirements warn consumers that 39% of a particular cereal product is composed of added sugar, consumers in the US – whose QUID labelling regime does not require this – are not given this information;

- While Thai QUID labelling informs consumers in that country that a certain tinned blueberry product is composed of 49% water, consumers purchasing the same tin of blueberries in the US are not so informed.[ii]

- Without the disclosure of such information, consumers would not be able to identify foods that contain the highest amounts of the healthy ingredients and the lowest amount of unhealthy ones. The proposed Annex, in allowing companies to keep their proprietary formulas secret, would likely negate QUID labelling efforts that are attempting to address this issue.

Thirdly, even in countries where full nutrition labelling is required, QUID is important because the amount of healthy ingredients cannot be determined by reading the nutrition information panel alone.[iii] The need for health-related ingredient information on food labels cannot be adequately satisfied by, as is the current practice in the US and many other places, merely disclosing quantitative nutrient information or the names of ingredients in decreasing order by weight, as in Malaysia. The World Health Organization (WHO) asserts that QUID for these ingredients in processed foods is necessary because ‘it is the foods themselves, not the presence of specific nutrients in the foods, which may create the beneficial or detrimental effect on health.’[iv]

Finally, the negotiations at the World Trade Organization have shown that it is immensely difficult for WTO member governments to prove the legitimacy of their actions affecting trade due to the stringent necessity tests imposed by WTO jurisprudence. There would be an onerous burden on governments to prove the ‘legitimacy’ of a directive to a company to disclose the proprietary formula of its food product(s).

Conclusion

Malaysian consumer and other public health interested groups such as CAP had supported the Malaysian government in having mandatory labeling provisions for genetically modified (GM) foods, for example, in the interest of consumer welfare and public health.

It is therefore ironic that the agribusiness industry and lobbies such the Grocery Manufacturers of America (GMA) have succeeded in convincing quarters within our very government that product formulas are their intellectual property and that manufacturers should thus not be required to disclose the precise weight or percentage of each ingredient since these are ‘trade secrets’.  

Such an action as this proposal indicates that it – along with the whole range of positions Malaysia has apparently taken in the TPPA – was done without meaningfully consulting health, food safety, consumer and other civil society groups and without a proper study of its impacts.

It provides yet another example, among many that need not be cited here, that Malaysia should withdraw from the TPPA. The government has so far not been able to prove to its people – particularly by showing us the texts that will bind us legally and internationally to the TPPA – that the benefits outweigh the costs.

CAP believes the proposed annex to the TBT chapter of the TPPA should never have been tabled, and calls on government to immediately withdraw this proposal from the discussions at the current round in Peru.

Press Statement - 21 May, 2013
 

Endnotes

[i] http://cspinet.org/reports/codex/quidonlabelling.pdf

[ii]International Association Of Consumer Food Organizations, http://cspinet.org/reports/codex/quidonlabelling.pdf

[ii] See Codex General Standard For The Labelling Of Prepackaged Foods, Codex STAN 1-1985 (Rev. 1-1991): ‘5.1 QUANTITATIVE LABELLING OF INGREDIENTS; 5.1.1 Where the labelling of a food places special emphasis on the presence of one or more valuable and/or characterizing ingredients, or where the description of the food has the same effect, the ingoing percentage of the ingredient (m/m) at the time of manufacture shall be declared; 5.1.2 Similarly, where the labelling of a food places special emphasis on the low content of one or more ingredients, the percentage of the ingredient (m/m) in the final product shall be declared.’ http://www.fao.org/docrep/005/Y2770E/y2770e02.htm

[ii] ‘Most packaged foods have to carry labels which show the percentage of the key or characterising ingredients or components in the food. This allows you to compare similar products.

The characterising ingredient for strawberry yoghurt would be strawberries and the label would say, for example, 9% strawberries. An example of a characterising component could be the cocoa solids in chocolate. Some foods, such as white bread or cheese, may have no characterising ingredients or characterising components.’ http://www.foodstandards.gov.au/consumerinformation/labellingoffood/ingredientlistsandpe5592.cfm

[iii] For example, nutrition labelling does not permit consumers to compare the whole grain content of various breads or crackers, the amount of vegetables in two different brands of vegetarian lasagna, the amount of dried fruit in so-called “fruit bars,” or the amount of added sugars in apple sauce. This limitation of nutrition labelling is obvious in light of the WHO/FAO Action Plan which recommends QUID in addition to mandatory nutrition labelling of foods.’ See IACFO, http://cspinet.org/reports/codex/QUIDComment_oct2006.pdf.

[iv] IACFO, http://cspinet.org/reports/codex/quidonlabelling.pdf