Summary
The EU continues to set and re-set pesticide and fungicide Maximum Residue Level (MRLs) at far stricter levels than internationally agreed standards. ACP exporters serving EU markets have no option but to comply or exit the EU market. Freshfel’s call for ‘better defined international standards’ to facilitate EU fruit and vegetable exports, since uneasily with the unilateral standard setting practiced by the EU, which regularly presents new compliance challenges for ACP fruit and vegetable exporters. This raises important policy issues regarding the EU’s role in the de facto setting of international standards and the limitations of SPS chapters and institutional mechanisms established under trade ACP-EU FTAs for ensuring EU markets remain open to ACP products which comply with agreed international regulatory standards.
New EU MRL levels are being introduced for the fungicide Imazalil and the insecticide Fipronil. For Imazalil the new MRL will be applicable from the 16th April 2020 (with some exceptions), while for Fipronil the new MRL will enter effect from 18th May 2020. After these dates any products exceeding the new MRL cannot be sold on the EU market (1).
For Fipronil approval for its use expired on 30th September 2017 and as a result MRLs for fipronil will ‘automatically be set at the limit of determination (LOD) 0.005 mg/kg’ (1). This insecticide is used to control a broad range of insect pests in horticultural crops. This lower limit means Fipronil ‘can no longer be used on these crops when the produce is being exported to the EU’ (1).
COLEACP has identified the main ACP export crops which will be impacted by the new MRL for fipronil from 18th May 2020
Main ACP Crops Affected by changes in the MRL for Fipronil
| Crop | Current EU MRL (Mg/Kg) | New EU MRL (Mg/Kg) |
| Broccoli |
0.01 |
0.005* |
| Cauliflower |
0.01 |
0.005 |
| Onions |
0.02 |
0.005 |
| Other flowering Brassica |
0.01 |
0.005 |
| Shallots |
0.02 |
0.005 |
| * Limit of determination (LOD) |
This means that for any of these crops to be placed on the EU market from 18 May 2020, ACP producers will need to have adopted ‘alternative control methods’, so that crops meet the new MRL requirements.
The situation in terms of the implementation of the regulation on the new MRL for Imazalil, a fungicide mainly used ‘for the management of post-harvest diseases such as crown rot in banana’ (1) is somewhat different. While the regulation was published on 25th September 2019, following lobbying from EU producers of the most seriously affected European crops a 3-year transition period has been set in place. This is intended to allow time for further studies to be carried out to evaluate the safety of Imazalil. It is claimed the ‘EFSA’s decision to reduce the MRL for Imazalil…was based on the fact that it did not have sufficient information to be able to complete its risk assessment into the toxicological properties of the fungicide, rather than any express concerns over its safety’ (2).
It is against this background that for certain crops ‘the MRL will remain at current levels’, notably for mandarins, lemons and limes, ‘while for oranges and grapefruit it will be set at 4mg/kg’ (2). Similar transitional arrangements will apply to apples, pears, medlar, bananas and potatoes (1).
Spanish citrus producers have not abandoned their efforts to ensure continued use of Imazalil after the 3-year transition, with the CEO of the Valencia-based postharvest solutions provider Citrosol, claiming, that given the rigor of EFSA food safety assessments ‘if the use of Imazalil is allowed to continue, it’s because it has been scientifically proven that it is safe for the consumer, producer and environment’.
Despite the optimism expressed by Spanish fungicide industry representatives, COLEACP is advising ACP producers to begin looking for alternative methods of treatment to the use of Imazalil. It is acknowledged that the change in the MRL for Imazalil will be ‘much more difficult for citrus supplied by Southern Hemisphere countries’ in light of the ‘long shipping time required to reach the European market’ (2).
As with Fipronil, COLEACP has identified the main ACP export crops which will be impacted by the new MRL for Imazalil from 16th April (except for those products subject to the 3-year transition).
Main ACP Crops Affected by changes in the MRL for Imazalil
| Crop | Current EU MRL (Mg/Kg) | New EU MRL (Mg/Kg) |
| Bananas° |
2 |
0.01* |
| Grapefruit° |
5 |
4 |
| Mango |
0.05* |
0.01* |
| Oranges° |
5 |
4 |
| Other Citrus° |
5 |
0.01* |
| Papaya |
0.05* |
0.01* |
| Pineapples |
0.05* |
0.01* |
| Potatoes° |
3 |
0.01* |
| Squashes |
0.05* |
0.01* |
| Watermelon |
0.05* |
0.01* |
| * Limit of determination (LOD) | ° subject to 3-year transition period |
According to COLEACP for bananas setting the new MRL at the limit of determination will mean ‘it will no longer be possible to use imazalil for post-harvest treatments on banana destined for the EU-market’ (1).
The Tanzania Horticultural Association is one of many producer groups criticising the EU for establishing MRLs which are substantially below internationally agreed norms. It is claimed the EU MRL levels of 0.01 mg/kg is substantially below the internationally agreed level set at 2.0 mg/kg for many products (3). Indeed, ‘several countries including Côte d’Ivoire, Brazil, India, the US and others have protested and gone ahead to present a formal complaint to the World Trade Organisation’, over the EU’s decision to lower these maximum residue levels (4).
Beyond the fungicide Imazalil and the insecticide Fipronil, in mid-February 2020 EU member states also agreed to ban the import of fruit bearing traces of chlorpyrifos. ‘Any fruit, imported or otherwise, bearing more than the smallest traceable amount of the pesticide will be banned from sale across the EU’. This followed a toxicological assessment carried out by the EFSA which found damaging genotoxic and neurological effects foetal and child development (5). Given pesticide products containing chlorpyrifos have been in use since 1965 pesticide campaigners are arguing lessons need to be drawn from the chlorpyrifos experience so that ‘an approval of pesticides based on incorrect conclusions in industry-funded studies is not repeated’ (6).
These EC measures and the debates they generate need to be seen in a context where European fruit and vegetable producers (Freshfel) are urging the EC to take urgent action to remove unnecessary SPS barriers to EU fruit and vegetable exports. This issue was systematically raised at the July 2019 EC Market Access Working Group meeting where discussions were focussed on the trade dimensions of SPS controls. It was maintained there needed to be ‘better defined international standards for the treatment of pests’ in order to ‘improve EU fruit and vegetable export conditions and boost exports’. It was maintained ‘most EU trade partners operate under a “detrimental closed system” for biosecurity and plant health protection’, which ‘requires EU producers and exporters to gain access to new markets product-by-product and country-by-country’. This was seen as involving lengthy, non-transparent and costly processes of approval (7).
Freshfel took the view the establishment of ‘better defined international standards for the treatment of pests’, would help facilitate access for EU fruit and vegetable exporters (7).
In addition, Freshfel called for the European Commission to make greater use of the SPS Chapters in EU Free Trade Agreements to secure the opening of 3rd country markets to EU exports. Specifically, it proposed the SPS protocols of EU FTAs should be used to:
- Establish ‘fast track’ procedures for SPS approvals.
- Secure the abolition of pre-clearance requirements.
- Allow the use of member states’ group applications for SPS approvals.
- Establish a system for the exchange of lists regarding pests of concern and facilitation of pre-export audits (7).
At the July 2019 meeting Freshfel expressed full support for EC efforts to ‘fully enforce FTA provisions and step up economic diplomacy to promote EU exports through new tools such as the Foreign Policy Instrument’ (7).
| Comment and Analysis
The different treatment of Fipronil, Imazalil and chlorpyrifos, highlights the complexities and nuanced approach of the EFSA to the use of fungicides and insecticides. For chlorpyrifos, there is well established scientific evidence as to its harmful effects. Against this background there is wide-spread agreement regarding the introduction of the ban on imports of products which have been treated with chlorpyrifos containing pesticides. The granting of a 3-year transition period for Imazalil, alongside the ongoing analysis of the effects of its use on human health, suggests that some EU decisions are by no means clear cut, with the power of domestic EU agricultural producer lobbies playing an important role in how the scientific evidence is used in making policy decisions. On occasion this can benefit some ACP exporters, although more commonly it leads to a general neglect of ACP concerns; the SPS cooperation provisions included in EU-ACP FTAs not-withstanding. Meanwhile, Freshfels’ call for ‘better defined international standards’, largely neglects the extent to which unilateral action by the EC is leading to the establishment of standards for accessing the EU market which go substantially beyond internationally agreed standards. An uneasy situation thus arises in international discussions on SPS issues, in a context where ACP exporters are increasingly ‘standard takers’, for EU driven standards which are substantially more stringent than internationally agreed standards. In this context supporting a strengthening of international standard setting and ensuring adherence to these standards, would appear to hold little attraction for ACP governments for as long as the EU continues to exceed internationally agreed requirements in ways which systematically place restrictions on access to the EU market of ACP products which are compliant with internationally agreed standards. This raises important issues linked to the growing role of the EU as a unilateral standard setter for international trade regulations. It is worth exploring these issues in a little more detail. It is increasingly clear the EU’s power to set regulatory standards for the operation of the EU single internal market is carrying important consequences for international standard setting. Third country producers are increasingly faced with the choice of complying with standards which apply only to the EU market or accepting exclusion from the EU market. While these standards nominally apply only to the EU market, this is leading to a situation where, increasingly, EU regulatory standards on the use of pesticides and fungicides are being integrated into national ACP standards (8) and even the production standards for all internationally orientated agri-food producers. This role of the EU in unilaterally setting standards which are increasingly being adopted by international producers, raises important long-term policy issues. These policy issues will arise not only in future ACP trade with the EU27 but also in future trade with the UK, once the UK leaves the EU customs union and single market. While the UK government is placing a strong emphasis on escaping the regulatory confines of EU decision making (with this seen as being at the heart of the Brexit process), it is unclear to what extent this will be possible given the growing informal influence of EU regulatory standards on applied international standards (as opposed to the formal standards adopted by international bodies). This is likely to set real limitations on the ability of the UK to effectively escape EU regulatory influences as it seeks to strike out on its own autonomous global trade policy. This in turn, is likely to place very real constraints on the ability of ACP exporters to secure less stringent SPS controls on trade with the UK once the UK has left the EU customs union and single market. |
Sources:
(1) COLEACP, ‘Important information regarding use of Imazalil and Fipronil’, 2nd April 2020
https://eservices.coleacp.org/en/actu/important-information-regarding-use-of-imazalil-and-fipronil
(2) Fruitnet.com, ‘Citrus industry wins temporary reprieve’, 8 August 2019
http://www.fruitnet.com/eurofruit/article/179437/imazalil-in-the-firing-line
(3) dailynews.co.tz, ‘Tanzania Horticultural Association strives to conform to new EU safety standards’, 13th December 2019
https://www.hortidaily.com/article/9172532/tanzania-horticultural-association-strives-to-conform-to-new-eu-safety-standards/
(4) Food Business Africa , ‘EU lowers the maximum residue level for several pesticides allowable on horticultural imports from Kenya’, 22 November 2019
https://www.foodbusinessafrica.com/2019/11/22/eu-lowers-the-maximum-residue-level-for-several-pesticides-allowable-on-horticultural-imports-from-kenya/
(5) vanguardngr.com, ‘EU to ban imported fruit treated with chlorpyrifos’, 19 February 2020
https://www.freshplaza.com/article/9191236/eu-to-ban-imported-fruit-treated-with-chlorpyrifos/
(6) euobserver.com, ‘Pesticide chlorpyrifos banned by EU’, 9 December 2019
https://euobserver.com/investigations/146858
(7) foodingredientsfirst.com, ‘Freshfel urges Europe to tackle fruit and vegetable export market barriers’, 31st July 2019
https://www.foodingredientsfirst.com/news/Freshfel-Europe-calls-out-need-to-urgently-improve-EU-fruit-and-vegetable-export-conditions.html
(8) hortidaily.com, ‘Retailers face stricter pesticide residue regulations from May 1’, 23 March 2020
https://mobile.nation.co.ke/business/Retailers-face-stricter-pesticide-residue-regulations-from-May-1/1950106-5500420-acorhiz/index.html
(9) Anu Bradford, ‘The Brussels effect: How the European union Rules the World’, Oxford University Press, 2020