Reconciling public opinion and WTO rules under the SPS Agreement

The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) allows Members to enact SPS measures necessary to protect health so long as they are based on scientific evidence. This scientific evidence requirement has attracted controversy among academics, policy-makers, and civil society. The argument has been advanced that the requirement inappropriately excludes the consideration of public opinion in the domestic risk regulatory decision-making process. The article addresses the question of whether it is possible to reconcile the SPS Agreement's requirement for scientific evidence with concerns regarding exclusion of the public voice in the domestic regulatory process. It responds positively to this query, subject to certain caveats to ensure that trade liberalization goals are not undermined. It argues that the scientific evidence requirement is not only the most appropriate means available for advancing the SPS Agreement's objectives, but that it provides countries with more flexibility than critics contend, including to respond to public sentiment in cases of scientific uncertainty. Recommendations are made as to how panels and the Appellate Body should proceed in disputes under the SPS Agreement, and how governments can comply with their trade obligations while remaining responsive to public concerns.