The United States measures with respect to importation of catfish from Vietnam are not consistent with the SPS, TBT and AD agreement

Abstract

ABSTRACT The “catfish war” between the United States and Vietnam arose when Vietnam started to export a large volume of Tra and Basa fish to the U.S, and labeled and sold such fish as “catfish” at prices lower the domestic product’s prices. To protect Channel catfish market, the CFA conducted an advertisement campaign against Vietnamese catfish on environmental and sanitary grounds. Accordingly, the CFA lobbied for a ban on imports of catfish from Vietnam, it alleged that Vietnamese catfish was unsafe for consumption because such fish was grown in unhygienic conditions and containing poisons, pesticides residue and so on. Based on such arguments, the CFA and its supporters claimed that it is necessary to impose a stringent inspection program on imported catfish (all fish of the order Siluriformes). As predicted outcome, the U.S 2008 Farm Bill and currently the 2014 U.S Farm Bill states that all fish of the order Siluriformes are inspected by the Food Safety and Inspection Service (FSIS), a subdivision of the United States Department of Agriculture (USDA) rather than the U.S Food, Drug and Administration (FDA), by March 1, 2016. Another aspect of this dispute which relates to technical barriers to trade, was so-called “catfish trade name”. The CFA argued that Tra and Basa fish were not “catfish”, thus, these fish could not be allowed to use term “catfish” for labeling and advertising. The CFA continued to allege that the term “catfish” should be permitted to solely use to genus Ictaluridae (Channel catfish) which is raised in the Southern States of the U.S. In response, the U.S Congress passed a law which regulates that Vietnamese catfish is not catfish and not allowed to employ the term “catfish” for Tra and Basa fish for advertising as well as labeling in the U.S jurisdiction (this regulations are still in effect), in 2003. Because the sanitary measures and catfish trade name campaign did not have anticipated outcome, the CFA launched dumping allegations, and the U.S. Department of Commerce (DOC) ruled in favor of the dumping claim of the CFA and established tariffs ranging from 37 to 64 percent on imports of frozen catfish fillets from Vietnam. After that, the U.S. International Trade Commission (ITC) ratified the DOC ruling, in July 2003. To date, the antidumping duty on certain frozen fish fillets from Vietnam has passed the eleventh Administration review, and the last Administration review concluded that such antidumping duty shall remain in effect until further notice. The outcomes of this research are clearly point out that (i) the U.S regulations relating to the using of the term “catfish” are inconsistent with the Article 2.3 and 2.4 of the TBT Agreement; (ii) the anti-dumping measures on certain frozen fish fillets from Vietnam are criticized as protectionist policy and violate the Article 3.1, 3.2, 3.4, 3.5 and 3.7 of the AD Agreement as well as not consistent with the Article 2.6 of the U.S – Vietnam Bilateral Trade Agreement; and (iii) the U.S inspection program on Siluriformes fish is illustrated to create a discrimination among seafood products, and such regulations are inconsistent with the Article I of the GATT 1994, and Articles 2.3, 5.1 and 5.6 of the SPS Agreement.