For a long period Japan has sought to protect its country from the spread of fire blight through imposing trade barriers on US apples. In effect, Japan imposed phytosanitary measures on US apples by prohibiting the import of apples coming from orchards with fire blight infections, requiring the inspection of export orchards three times yearly for the presence of fire blight and banning imported apples from any orchard should fire blight be detected within a 500-metre buffer zone surrounding such orchard. The United States challenged Japan’s measures as conflicting with the World Trade Organisation (WTO) rules especially the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)1 by requesting the WTO to establish a Panel to rule on this matter.2
The Panel held that Japan’s phytosanitary measure violates Article 2.2 of the SPS Agreement because it is maintained ‘without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5’. In addition, the prohibition is in conflict with Article 5.7 since it does not comply with the requirement under Article 5.7 of the SPS Agreement that relevant scientific evidence be insufficient in order to justify the application of the phytosanitary measure at issue as a provisionally adopted measure. Finally, the Panel held that Japan’s measure is not based on a risk assessment within the meaning of Article 5.1 of the SPS Agreement.3
The key issue in this case is fire blight that endangers plant health. It is caused by bacteria called erwinia amylovora, which attack plants from the blossoms to the twigs and then the branches. ‘Flowers turn brown and wilt; twigs shrivel and blacken, the ends often curling.’4 Thus, it is understandable that Japan was scared about the introduction of this infection to its territory.