This paper describes how the development of texts on regulatory deference by the Codex Alimentarius Commission (CAC) addresses relevant recommendations of the World Trade Organization (WTO) and supports Member countries of CAC in their negotiation and implementation of equivalence agreements. We consider the role and function of CAC within a rules-based multilateral framework, particularly in relation to the development and implementation of equivalence concepts. We then consider whether, through use of equivalence agreements, trade facilitation outcomes have been realised. Our hypothesis is that international standards on regulatory deference promote fair but aspirational standards and support fair practices in the trade of safe food – both vital outcomes for global food security and the achievement of many of the United Nations Sustainable Development Goals. We test this hypothesis against the framework provided by decisions of the WTO Sanitary and Phytosanitary Committee. We argue that the equivalence concepts and guidelines developed by CAC are appropriate but underutilised tools available for Member countries to strike a balance between their right to regulate to protect human, animal or plant life and health and to fulfil legitimate objectives whilst meeting their WTO obligations to avoid measures that constitute unnecessary barriers to trade.

An important outcome of the Uruguay Round of multilateral trade negotiations was the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). This was set up to discipline the use of national food safety and animal and plant health regulations and to prevent their emergence as technical barriers to trade. The Agreement privileges free trade and scientific evidence, thus excluding many ethical considerations from the regulations that national governments can enact in relation to production methods in the agri-food chain. Autonomously from the SPS Agreement, a number of global private standard schemes have been developed that have incorporated values rejected by the SPS Agreement. This paper examines the relationship between the Agreement and the private standards and argues that this case highlights a gap in the institutional literature with respect to parallel institutions emerging autonomously from the primary institution to embody values excluded by the latter. We adopt the term commensalism for these previously undescribed relationships.

Food regulation aims to protect public health through a safe and nutritious food supply produced by a compliant food industry. Food standards of developed countries generally do not regulate protein content or protein quality because the risk of dietary protein inadequacy in their national populations is very low. Protein is nevertheless regulated for reasons of product quality or protein labelling or to minimise assessed health risks associated with consumption of certain animal- and vegetable-protein foods; analogue products that extend or simulate commonly available animal-protein foods; and special purpose foods such as infant formula and foods, supplementary and medical foods, and foods for weight loss. The extent and approach to protein regulation varies greatly among jurisdictions but where it occurs, it is applied through minimum and sometimes maximum limits on protein content or quality measures or both using an inter-related approach. Protein quality measures range from amino acid profiles and digestibility corrected scores to protein rating, a rat bioassay and reference proteins not further described. Regulatory methods for protein quality determination are referenced to the published scientific literature or developed nationally. Internationally, the Codex Alimentarius regulates the protein content and quality of some foods. The Codex approach varies according to the food but is similar to the approaches used in national and regional food regulation. This paper provides a comparison of the regulation of protein in foods using examples from the food regulations of Australia New Zealand, Canada, the European Union, the United States of America and the Codex Alimentarius.