EU Regulation on Cadmium in Chocolate Fuels WTO Debate on Health, Development

8 November 2018

The EU’s incoming rules on cadmium in chocolate and other foodstuffs again drew scrutiny from some developing country WTO members at a meeting of the organisation’s Committee on Sanitary and Phytosanitary (SPS) Measures on 1-2 November, trade sources say. The regulation takes effect in less than two months, and has fuelled debate over how to ensure food safety without harming farmer livelihoods. 

At issue is European Commission Regulation 488, which was adopted in 2014 and is due to go into effect on 1 January 2019. The regulation restricts the levels of the metal that are permitted in chocolate, citing the need to safeguard the health of children. Yet various developing countries and other stakeholders have raised questions over the scientific rationale used for the new limits, as well as their implications for the welfare of poor small-scale farmers in some parts of the developing world. 

Reviewing the scientific basis of new rules

Cadmium (Cd) is a heavy metal found naturally in the soil, as well as in pesticides and fertilisers. Cocoa trees absorb the metal through their roots, which transmit it into the leaves and beans of the tree. Cadmium is classified as a human carcinogen, and has been linked to kidney damage and bone demineralisation. 

In light of these concerns, the EU has had maximum limits for cadmium in foods on the books since 2001. In 2014, it updated its regulations, adding maximum thresholds for milk and dark chocolate, among other changes. For milk chocolate with less than 30 percent cocoa content, which is most popular amongst  children, the rules are particularly strict: it cannot be sold in the EU if it has more than 0.1 parts per million (ppm) of cadmium. Milk chocolate with more than 30 percent cocoa content, and other chocolate with less than 50 percent content, will have a 0.30 ppm maximum permitted cadmium level, while chocolate with more than 50 percent, and cocoa powder, have 0.80 ppm and 0.60 ppm limits respectively. 

Colombia, Côte d’Ivoire, and Peru called for a fresh discussion on the impending rules at the SPS committee meeting last week, sources said. Building on previous submissions and interventions at past SPS Committee meetings in March and July, as well as its most recent submission to the committee under the document name “G/SPS/GEN/1646,” Peru reiterated questions on the scientific merits of the EU’s cocoa limits, along with what these could mean for the Peruvian economy . 

It noted that the Joint FAO/WHO Expert Committee on Food Additives (JECFA) considers a food to represent a risk when it contributes five percent or more of the maximum tolerable intake of the contaminant. FAO refers to the UN’s Food and Agriculture Organization, while WHO refers to the World Health Organization. 

Based on this parameter, Peru said, there were no grounds for including chocolate and cocoa products in Commission Regulation (EU) No. 488/2014, since they contribute only 4.3 percent to dietary cadmium exposure. On these grounds, Peru argues that the European Regulation is not consistent with Articles 2.2 and 2.3 of the WTO’s SPS Agreement, because it is “not based on updated scientific principles with respect to the risk to human health” and thus amounts to a “disguised restriction on international trade.” 

The EU reportedly countered that within Europe, and particularly amongst vulnerable subgroups of the population, the five percent limit is indeed crossed. The EU has also pointed out on multiple occasions that its regulation is based on the European Food Safety Authority (EFSA) Scientific Opinion on Cadmium in Food of 30 January 2009. That report found that the mean dietary exposure for European adults was close to or slightly exceeded the “tolerable weekly intake,” while subgroups such as children may face exposure levels that are double that of the tolerable weekly intake. 

Some members suggested that the EU is using a hazard-based approach that may not adequately take into account the health or development implications of the new rules. A hazard-based approach regulates a product on a precautionary basis if it contains a substance that is known to have severe health effects, even if there is no evidence of consumer exposure to the hazardous substance. However, the SPS Agreement requires countries to use a risk-based approach, which also evaluates whether there is exposure to the substance. The EU responded that it had used a risk-based approach in developing regulation 488/2014 based on the EFSA analysis. 

Interventions by Colombia, Côte d’Ivoire, and Peru also urged the EU to apply the rules of the Codex Alimentarius Commission, which sets out international food safety standards. Under WTO SPS rules, Codex serves as one of the “relevant international organisations” setting food safety standards. According to sources familiar with the meeting, this point was reiterated in supporting statements from Bolivia, Costa Rica, El Salvador, Ecuador, Guatemala, Indonesia, Nicaragua, Panama, Trinidad and Tobago, the US, and Venezuela.

Codex has so far agreed only on rules for chocolate containing more than 50 percent cocoa, and the EU regulations are in line with these standards. At their next meeting on 29 April to 3 May 2019, Codex members are slated to develop rules for chocolate with less than 50 percent cocoa. Several interventions urged the EU to wait for these new rules.

Developing countries warn of adverse impacts on livelihoods

Virtually all the interventions from developing countries underscored how important cocoa production is for their populations of smallholder farmers, and how the EU regulations could have an adverse effect on them. In Peru, 90,000 families are economically dependent on cocoa. Their submission notes that “producers and exporters, including agricultural cooperatives and producers’ associations, are chiefly located in the high poverty areas for which the European market accounts for more than 75 percent of the value of total exports.” 

A December 2017 study by researchers at Instituto de Cultivos tropicales (ICT), the US Department of Agriculture (USDA), and the University of Florida’s Institute of Food and Agricultural Sciences found cadmium levels in worryingly high concentrations in cacao cultivated in key regions in Peru, namely Amazonas, Piura, and Tumbes. 

“Peru is one of the leading exporters of organic cacao beans in the world. However, the accumulation of heavy metals in cacao beans represents a problem for cocoa bean export and chocolate quality,” researchers said at the time. 

Several producer countries also noted their difficulties in complying with the regulations, and said that their exports to the EU seem to be decreasing in anticipation of the entry into force of the regulation. They also suggested that importing firms in Europe may be already implementing the regulation’s terms, albeit incorrectly, namely by applying it to input materials like cocoa beans, rather than just finished products like chocolates and certain cocoa-based products. 

Ecuador raised this issue at the SPS meeting this past July, with the support of Colombia and Guatemala, and sources say it was raised again at last week’s session. In July, the EU acknowledged the concern, while noting that since the issue referred to how private firms are operating, and thus is an issue that the EU lacks the jurisdiction to address. According to minutes of the meeting, the EU also suggested that “this concern went beyond the scope of the SPS Agreement,” while noting that an alternative could be to discuss the issue in other settings, such as the International Cocoa Organization. 

Some countries argue that the new regulation could also inhibit efforts to combat illicit drug trafficking. For example, Peru, Colombia, and others highlighted how cocoa has gained ground in their countries through joint efforts with the international community to develop sustainable programmes for the development of alternatives to coca leaf production. The entry into force of the European rules on cadmium would reduce exports, they argued, and lead farmers to return to the cultivation of coca. This would have adverse environmental effects as well through deforestation for replanting of coca. 

Next steps

The EU regulations are slated to enter into force in January 2019. A host of producer countries from different world regions have asked the EU to exclude chocolate and cocoa from the regulation or to extend the timeline for implementation to allow their cocoa sectors to prepare and allow for new Codex international standards to be developed.

The EU responded that the regulation has already provided for a five-year adjustment period, well in line with  the SPS Agreement’s language on providing a “reasonable interval”.

Colombia and others asked for technical assistance to meet the new limits. The presence of cadmium is a particular problem for cocoa from some Latin American countries due to factors like volcanic activity and forest fires. Yet because cadmium occurs naturally in soil, it is relatively difficult to address. The Standards and Trade Development Facility (STDF/PPG/577) is currently developing a regional strategy for handling cadmium contamination in cocoa beans in Latin America and the Caribbean.

The EU is approving a new, multi-million euro project this week designed to deliver specific technical assistance for Colombia, Ecuador, and Peru. The projects would start in 2019 through the EU Development-Smart Innovation through Research in Agriculture (DeSIRA) programme and would encourage innovation for sustainable cocoa production, with activities related to cadmium. Research indicates that potential solutions include grafting onto low cadmium root stock plants, breeding new varieties that are not as prone to cadmium uptake, modifying soils to reduce plant cadmium uptake, post-harvest measures such as the use of microorganisms during fermentation, and the use of nanotechnology on cocoa mass. 

ICTSD reporting; “EFSA Scientific Opinion on Cadmium in Food; EFSA Scientific Report on Cadmium dietary exposure in the European population,” EUROPEAN FOOD SAFETY AUTHORITY, 30 January 2009; “High cadmium levels in cocoa from Peru may impact chocolate quality,” CONFECTIONARY NEWS, 3 July 2017; “Heavy metal accumulation in leaves and beans of cacao (Theobroma cacao L.) in major cacao growing regions in Peru,” SCIENCE OF THE TOTAL ENVIRONMENT; 15 December 2017; “The Impacts of New EU Cadmium Regulations on the Cocoa Supply Chain,” WORLD COCOA FOUNDATION, 19 September 2018.

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