ENSAYOS TRIBOLÓGICOS: EQUIPOS Y TRATADO DE

All Thai baby corn exported to the EU is subject to three tiers of regulation (See Table 3, below). Firstly, all Thai baby corn is subject to general domestic food laws which are applicable to all food products produced or marketed in Thailand regardless of their destination or origin.²¹⁸ This includes legislation which regulates production processes, namely the Plant Seed Act B.E. 2518 (1975),²¹⁹ the Fertilizer Act B.E. 2518 (1975) and the Dangerous Substance Act B.E. 2535 (1992)²²⁰ as well as domestic post-harvest legislation including the National Food Act B.E. 2522 (1979), the Agricultural Standards Act B.E. 2551 (2008)²²¹ and Consumer Protection Act B.E. 2522 (1979) plus

217 Despite this, there have been cases where FVO reports have led to temporary imports bans covering the entire agricultural industry from other countries. For example, this occurred in respect of Pakistani marine products in April 2007 (Source: http://www.financialexpress.com/news/eu-ban-on-pakistan-marine-products-to-benefit-india/194842/). The temporary suspension of CA status was recently threatened for the DOA in December 2010, upon the occurrence of high levels of chemicals found in Thai vegetables in 2010-2011. However, this did not actually occur since the DOA took steps to demonstrate to DG-SANCO that it was still able to control the quality of exports to the EU, even though this did involve a voluntary ban being imposed. See further discussion in Chapter 6.1.2 infra.

218 These domestic laws have been proposed by the Department of Agriculture and approved by the

Parliament through the normal legislative procedure. Source:

http://www.doa.go.th/th/index.php?option=com_content&view=article&id=51&Itemid=74 (“Knowing the Department” (in Thai),

219 B.E. is the abbreviation for Buddhist Era, the system of year numbering used in Thailand. The corresponding B.E. year is mostly 543 greater than the equivalent A.D. year. This Act prohibits the importation of GM seeds for commercial purposes. Source: common knowledge in Thailand.

220 The 1992 Act was directed towards controlling the use of dangerous chemical fertilizers, pesticides and herbicides. Source: www.ratchakitcha.soc.go.th (in Thai). English translation of the Act is available at: http://www.diw.go.th/law/hazae.html.

221 This requires that some food producers, exporters and importers must obtain certification from the ACFS or the certifying bodies which are approved by the ACFS. Source: www.ratchakitcha.soc.go.th (in

Thai). English translation of the Act is available at:

http://www.acfs.go.th/km/download/AGRICULTURAL_STANDARDS_ACT.pdf.

other relevant ministries’ announcements.²²² This domestic legislation lays down, as a first tier of regulation, basic standards on food safety hygiene for all food products commercially produced or sold in Thailand. Compared with the rigorous food safety laws applicable in the EU, this Thai legislation falls far short of delivering the food safety standards required by the EU. As a consequence fresh or chilled baby corn exported to the EU market is subject to further requirements. These additional requirements can be seen as a second tier of regulation applicable to Thai exports. They have been mainly implemented by the DOA, and to a lesser extent by other sub-departments of the MOAC and other ministries.

Compared to other fresh fruits and vegetables baby corn is regarded by the DOA as an important export crop and is subject to particularly rigorous controls. The control processes for exports are divided into phytosanitary and sanitary controls.

For phytosanitary controls the consignment must be accompanied by a Phytosanitary Certificate (PC) issued by the DOA. The PC will be given if the DOA is satisfied that the exported products do not show any signs of plant diseases or pests. In general exporters must send samples of baby corn to be exported to the phytosanitary control department of the DOA a few days prior to exportation so that appropriate checks for insects and any plant diseases can be carried out.

222 These include, for example, the Ministry of Health’s Announcement No. 288, B.E. 2548 concerning dangerous substances in food. The Annexes to the Act provide a list of maximum residue limits of some dangerous chemical substances, including Carbaryl Methomyl and Cypermethrin that can be found in fresh baby corn. Source: www.ratchakitcha.soc.go.th, http://www.fda.moph.go.th/fda-net/html/product/food/ntfmoph/ntf288.pdf (in Thai).

With regard to sanitary checks, baby corn products destined for the EU market will be subject to various checks by the DOA and other governmental agencies. The requirements on sanitary issues are quite extensive considering that products sold domestically or to many other export markets such as the USA do not have to pass the same level of pre-export inspections. ²²³ Nonetheless, in such cases these products are still subject to Thai general domestic food law, some domestic law applicable to exports to all countries and will be subject to even more rigorous checks at importing countries’

borders.

Firstly the sanitary checks concern maximum residue limits (MRL) of chemical substances.²²⁴ Specific Thai laws have been passed to enable the DOA to carry out these tasks, including the Plant Quarantine Act 1964 (amended 1 March 2008) and the Ministry of Commerce Announcements (of 11 April 2003, 23 February 2009 and 4 August 2009) specifying commodities that need to obtain a health certificate prior to

223 For example US-bound baby corn exports are not subject to a similar level of DOA checks mainly because there is no CA system in place between the US and Thai authorities. Thai baby corn exports are still subject to food safety inspection at the borders. US import controls for non-meat, poultry and egg products are not based on the presumed equivalency status of third countries CA and food safety systems, unlike the CA model. Instead the import food safety inspections are performed by the Food and Drug Agency (FDA) at the border rather than through external inspection “missions” in third countries which is the case with the EU FVO. However, US controls of food safety for imports are different and more rigorous for poultry, meat and egg products where the system is under the responsibility of the USDA (United States Department of Agriculture). In such cases import controls are, by and large, similar to the CA model. The inspections are carried out both in third countries, based upon their ability to ensure satisfactory food safety levels for exports to the US, and at the US border (called the re-inspection). (See Zach and Bier (2009), p. 153).

224 The checks are for 30 groups of pesticides within the Organochlorines groups (13 chemical types), Cypermethrin group (6 types), Carbamates group (4 types) and Dithiocarbamates groups ( 4 types) and Benzimidazoles group (3 types) and 4 other types of herbicides.

exportation.²²⁵ Up to two weeks prior to exportation exporters must submit samples to one of the three DOA-owned laboratories²²⁶ or to another DOA-certified laboratory so that checks can be carried out on the level of controlled chemical and microbial substances. If the samples pass this test they will be issued with the DOA’s MRL approval form.²²⁷ Once this form has been granted exporters must present it to the Department of Foreign Trade (DFT) of the Ministry of Commerce in order to obtain a health certification. This process is, to a significant extent, merely procedural. As long as the products are approved by the DOA export certificates are generally issued.

Additional checks will also be carried out by a DOA-approved laboratory to ensure that the product is free from microbial contamination, especially from E. coli and Salmonella which are commonly found in fresh produce from tropical and sub-tropical countries. This is especially important given Thailand’s poor record in respect of microbial contamination of vegetable products.²²⁸ Only products which show no trace of the microbial substances in question will be issued with the DOA’s Certificate of

225 The new process supplements Ministry of Commerce Announcement B.E. 2546 (2003). Under this process fresh and chilled baby corn exported to the EU and six other countries (Singapore, Malaysia, Japan, China, Hong Kong and the US) must obtain export certificates before it can leave Thailand for the destination countries. This legal arrangement between the DOA and DFT has been conducted in an unusual manner to grant the DOA power quickly so that they could use their expertise and CA status to control issues regarding chemical MRL “though the back door”. Following several breaches of EU rules on MRL of chemical and biological substances, the DOA needed to be able to establish appropriate systems promptly to comply with the request of the FVO. It would have taken a long time for new legislation to confirm that the power of regulating MRL of chemical substances was vested with the DOA. Hence it made an official request to the DFT which, at that time, had discretion to impose additional qualifications for export.

226 This is called the Agricultural Production Sciences Research and Development Office of the DOA.

227 This is issued by the Plant Standard Certification Office of the DOA.

228 Department of Agriculture Notification on 18 August 2005 requires that 9 types of vegetable exported to the EU must bear a certificate of E. coli and Salmonella Analysis.

Approval.²²⁹ This is required to be presented to the customs staff along with the PC and DFT’s export certifications.

At the ports and prior to the consignments leaving the country baby corn is randomly re-checked by Thai customs officers. This on-the-spot custom check is conducted to detect any visible insects, plant diseases or unauthorised consignments. However, it does not involve additional laboratory checks.²³⁰ Once the products reach the port of arrival in the EU, they will be randomly checks by the BIP. Here the checks can be carried out for both phytosanitary and sanitary purposes and to verify that the proper paperwork has been completed.

The third tier of regulation is in relation to private standards and will be discussed in Section 3.2.4 below.

229 Issued by the Plant Standard Certification Office of the DOA.

230 The check will be conducted at least 3 hours before the product departure. Since October 2007 the DOA has introduced a strict blacklist procedure for those who breach the PC requirements. In severe cases where Thai customs staff find unregistered products in a consignment, the unregistered products will be removed. In the case of a recurrence the PC will be revoked for the whole consignment and future consignments from breaching exporters will be subject to 100% checks. If the recurrence takes place three times, the PC will be revoked and a PC will not be issued for the applicable exporter for at least 30 days. This results in the exporter’s total inability to export products to the EU. If the breach is found at EU ports and is notified to the DOA, the PC to the notified country will not be issued for the breached exporters for 30 days, meaning they are suspended from exporting.