Abstract
Zambia faces a serious vitamin A deficiency (VAD) that affects most infants and expectant mothers, leading to night blindness, maternal deaths, and more. One of the efforts to address this is by permitting only the manufacture, sale, or import of household consumption sugar which is fortified with vitamin A - which is seen as a disguised restriction on international trade. Through a desk-top research study, the article examines the question, as to what extent Zambia's fortification requirement complies with the necessity principle in the Technical Barrier to Trade Annex to the Southern African Development Community Protocol on Trade (TBT Annex) and Article 2(2) of the World Trade Organization's Agreement on Technical Barriers to Trade (TBT Agreement). The research finds that the measure is a technical regulation with a legitimate objective to protect the health and lives of a target VAD Zambian population. Further, it is applied to both domestic and like foreign products; therefore, it is neither discriminatory nor directly linked to the lack of competitive opportunities for like foreign products. Even if fortified maize meal could be opted for instead of sugar, it cannot achieve the equivalent contribution in dealing with the VAD problem because of challenges, such as, the uncertainty in regulatory regime, and its irregular consumption pattern. Consequently, the sugar fortification requirement is not more trade restrictive than necessary under the TBT Annex and Article 2(2) of the TBT Agreement.
Highlights
Zambia is a Least Developed Country (LDC) within the lower-middle-income country bracket as per its 2014 Gross National Income (GNI) per capita of USD1680.1 Despite registered economic growth of an average of 7 per cent, data shows that as of 2015,2 poverty levels were still high at 54.4 per cent, with 76.6 per cent in the rural areas.3 Zambia has a population of about 17 861 0304, with a few employed in the copper industry5 and over 110006 in the Management Report (2017)at available at https://www.illovosugarafrica.com/UserContent/Documents/Illovo-Impact-Report-Zambia-Dec17.pdf
Following the interpretation and conclusion drawn by the Appellate Body (AB) in EC - Asbestos, the AB in EC -Sardines said that any particular document at issue must meet three criteria for it to be a technical regulation in terms of Annex 1(1), namely: first, it must apply to an identifiable product or group of products either expressly by its name81 or implicitly through its characteristics;82 secondly, it must lay down one or more characteristics of the product which may be intrinsic including their features, qualities
“... whether the measure consists of a law or a regulation enacted by a World Trade Organization (WTO) member, whether it prescribes or prohibits particular conduct, whether it sets out specific requirements that constitute the sole means of addressing a particular matter, and the nature of the matter addressed by the measure”
Summary
Zambia is a Least Developed Country (LDC) within the lower-middle-income country bracket as per its 2014 Gross National Income (GNI) per capita of USD1680.1 Despite registered economic growth of an average of 7 per cent, data shows that as of 2015,2 poverty levels were still high at 54.4 per cent, with 76.6 per cent in the rural areas.3 Zambia has a population of about 17 861 0304 (the majority of whom are poor), with a few (less than 2 per cent) employed in the copper industry5 and over 110006 in the
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