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Safety Regulation as a trade barrier: WTO accepts France's Asbestos ban

October 2000
John Manos

Publication in September 2000 of a 400-page report from the World Trade Organisation on the dispute between Canada and France over chrysotile asbestos effectively brings to an end more than two years of wrangling between Canada and European Union (EU) authorities on the issue.

The report is the result of the deliberations of a trades dispute settlement panel set up in 1998 to consider whether France's 1997 decree, banning the import and use of chrysotile, breached WTO trade rules. It is the most comprehensive international review of the arguments to date on the issues. In contrast to most scientific reports on asbestos risk assessment, which tend to be heavily qualified, the WTO report is a legal document whose primary purpose is to determine the legality of the French decree. It comes to clear-cut conclusions: in particular, it finds that the French decree was a justified restriction to free trade because it was necessary "to protect human, animal or plant life or health", as provided for by Article XX(b) of the General Agreement on Tariffs and Trade.

The report finds the ban justified for three principal reasons: chrysotile is a carcinogen for which no safe threshold exposure can be determined; for this and other reasons, the concept of "controlled use" is unreliable; and safer substitutes exist for almost all applications. Despite Canada's declared intention to appeal the decision, it is thought unlikely to be reversed.

Delayed EU ban

The Canadian government's attempts to protect its chrysotile asbestos mining industry and rehabilitate the white form of the fibre caused problems for the UK European Union presidency two years ago.

At that time, a majority of EU member states had been in favour of replacing the then-existing restrictions on marketing and use of certain forms of chrysotile with a general ban with minimal exemptions (see Focus, April 1998, "Does EU legislation in asbestos remain adequate?"). Canada, by taking the issue to a WTO disputes panel, succeeded in bringing these moves towards the banning of chrysotile at an EU level to an abrupt halt in the summer of 1998 when an EU scientific committee unexpectedly released a report questioning the safety of chrysotile substitutes such as mineral fibres.

Plans for an EU ban had to be taken off the agenda of the UK presidency as a result. The reason was that, in the forum of the WTO, only strictly scientific justifications for restrictive regulations (such as a ban on a product) can be accepted. Whereas national health and safety regulations may be influenced by justifiable political considerations, such as trade union priorities, the WTO's aim is to eliminate all barriers to trade that cannot be supported by the most robust scientific evidence.

EU authorities subsequently satisfied themselves that the scientific evidence of the safety of substitutes was unchallengable and the EU ban was agreed by the European Commission in July 1999. (Since it was an extension of existing asbestos marketing and use restrictions (under the umbrella of the 76/769 directive restricting the marketing and use of a diverse range of dangerous materials), introduction of the ban was a Commission administrative decision, not requiring debate at Council of Ministers level.)

(The EU directive anticipates implementation of general bans on chrysotile in all member states by 1.1.05 at the latest. Open-ended exemptions from the prohibition may be permitted for one application only (diaphragms used for electrolysis in certain chlorine plants) and very limited, transitional (ie time-limited) exemptions may also be allowed where safety-critical applications are involved and no substitute is available. Diaphragms are the only current chrysotile application for which it is not technically possible to use a substitute product without creating a safety risk (ie the risk of an explosion). Under the directive, the exemption applied to diaphragms will be reviewed as part of the general review of the directive in 2003.)

The WTO report

The WTO report provides extensive details of both the scientific and legal arguments put forward by Canada, against the French decree, and those in its support which were submitted by the European Commission on behalf of France and other EU member states. Some examples of Canada's claims and Commission responses are given here but space precludes dicussion of the many substantive issues of epidemiology and toxicology which are covered at length in the panel report.

Canada's arguments included the suggestion that the French action had been hasty and "irrational" and the result of French politicians' being "panicked" by media attention and pressure from asbestos victim support groups which claimed that the authorities had been negligent in not taking earlier action.

Canada's fundamental legal argument was that the ban was a technical measure which injustifiably discriminated against Canada's asbestos production and was therefore a breach of GATT rules. The French ban was "irrational and disproportionate", Canada claimed. "Modern chrysotile asbestos products" did not pose "any detectable health risks" and the scientific data on which France had based its case did not justify such a radical measure as a ban on all uses.

Other measures that were less restrictive on international trade and thus compatible with France's international obligations were available, according to the Canadian submission. "These would have enabled France to achieve its aim just as well as a ban. Accepting France's approach would give each Member the option of completely banning potentially hazardous natural products rather than adopting a reasonable approach of risk management based on their use. In terms of international trade, the total ban on asbestos creates a barrier to importation of chrysotile fibre and chrysotile-containing products into the French market.

For the most part, these and other more complex scientific arguments put forward by Canada were strongly rebutted by the European Commission's submissions. For example, on the claim that the French decree had been "a political reaction … to anti-asbestos propaganda", the Commission described the extensive and progressively-implemented restrictive measures taken by France in recent years. The Commission noted that, "[Canada's] statement does not take into account the fact that seven other European countries took an identical measure some years ago, without Canada accusing them of having taken their decisions for 'political' reasons or attacking them...".

On the claim that the ban was protective of French alternative products, the Commission said, "Contrary to Canada's claim, the effect of the French measure is not to favour products like asbestos of French origin. France does not manufacture the substitute products mainly used to replace asbestos in asbestos-cement, but imports them from other countries. For example, PVA, an asbestos-cement substitute, is produced in only two plants worldwide, one in China and one in Japan. Moreover, substitute products are not like products because they are less dangerous and their chemical composition differs."

"Controlled use" concept discredited

An underlying Canadian argument was that "controlled use" techniques could ensure entirely risk-free use of "modern chrysotile products".

The WTO report notes: "Canada points out that, prior to adoption of the Decree, France maintained a policy of controlled use. Indeed, it appears that the legislative provisions on asbestos provided adequate protection to workers and consumers. A review of French legislation shows that the hazardous uses of asbestos were already banned before the decree. Sprayed asbestos was banned for all buildings in 1978. Amphiboles were banned in 1994, including marketing, use and importation of these products. The levels of exposure to asbestos dust were strictly regulated. Successive reductions in the exposure limits to airborne dust in workplaces had been adopted... Finally, measures had been taken to protect the population against passive exposure to asbestos in buildings... In light of all these actions, it may be concluded that the French Government had already regulated the risks associated with the use of asbestos, including those deriving from the use of chrysotile fibre, prior to the adoption of the ban. According to Canada, there have been no new scientific findings that would justify the change in the asbestos regulations adopted by France".

In its rebuttal, the European Commission refers, among other evidence, to the opinions of the UK Health and Safety Commission (given in its 1999 consultative document on the subject) and the World Health Organisation, on the controlled use concept. The report records:

"The HSC notes in its proposed amendments to the rules introduced in the United Kingdom in 1992, efficient control of the use of chrysotile asbestos cannot be guaranteed, even at the stage which in principle is easiest to control, namely production. 'Absolute control of the manufacture, and particularly the use of chrysotile asbestos products can never be guaranteed – some people may continue to be exposed, unknowingly, to relatively high levels of fibres during the installation, maintenance or removal/disposal of products containing chrysotile asbestos.' Controlled use procedures cannot be effectively applied to safeguard the hundreds of thousands of persons who are exposed on a daily basis in industries where health and safety arrangements are minimal, such as the building industry, which accounts for at least 25 per cent of mesotheliomas." Similarly, "The 1998 WHO Environmental Health Criteria 203 state that 'it is proven that the risk is probably higher among workers in the building industry and perhaps in other industries where asbestos is used'".

The WTO report continues, "Given the extremely large numbers of persons concerned, the difficulty of assessing the risk, the complexity of individual and collective protection systems and their negative effect on dexterity, the need to use special equipment and the overall cost engendered by the requisite arrangements mean that asbestos-containing materials cannot viably be used in a manner that will protect workers’ health effectively. The EC accordingly consider that the principle of 'controlled use' cannot be applied to the indeterminate risks incurred over the very wide spectrum of occupations where workers come into contact with asbestos in many ways, in particular in the servicing and maintenance operations for which 'safe' use is not a practicable option."

UK action

In the UK, new regulations came into effect in November 1999, implementing the directive five years before the deadline. The UK Asbestos (Prohibitions) (Amendment) Regulations 1999 ban the importation, supply and use in Great Britain of chrysotile and products containing it. This includes second-hand asbestos cement products, and boards, tiles and panels which have been painted or covered with paints and textured plasters containing asbestos.

The supply of asbestos for purposes of disposal, and the importation, supply and use of chrysotile for the purposes of research, development or analysis will be allowed. The British regulations also allow the continued use of products containing chrysotile until they reach the end of their service life, if they were in use before the regulations came into force.

Report of the Panel on "European Communities - Measures affecting asbestos and asbestos-containing products", 18 September 2000 is available on the WTO web site for downloading in Word and also pdf formats.

John Manos is a freelance writer on OSH matters.
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