Sales Bans Factsheet
Background
National and international trade have an immense impact on animal welfare. Since market forces strive for efficient production, businesses often deprioritize animal welfare standards, thereby creating a “race to the bottom” in an attempt to reduce production costs. In the absence of binding international animal welfare norms,one measure countering this phenomenonis the prohibition of the sale and importation of animal sourced products that do not meet the minimum local standards. This measure is the introduction of “sales bans,” or “mirror clauses,” discussed in this factsheet.
What are Sales Bans?
A ban is a legal or formal prohibition. Sales bans are the prohibition of the sale of products, which fail to meet defined standards, at an international, national, and municipal level. One of the forms of implementing sales bans, are international trade restrictions or barriers. A trade restriction is an artificial restriction on the trade of goods and/or services between two countries. Trade-restrictive measures, namely restrictions on the import and on the sale of animal sourced products, are aimed at cleansing domestic markets from products which do not meet the local public morality, environmental, or animal health and welfare standards.
One way of materialising trade restrictions is by codifying "mirror clauses" or adding them to trade agreements. These clauses that require imported goods to be produced under the same standards as those applied to domestic products, including sanitation, animal welfare, environmental standards, and labour standards. Although there are exceptional, these measures allowed by the rules of the World Trade Organization (WTO) under the same conditions as for the enactment of sales bans.
What are the Effects of Sales Bans?
Sales Bans reduce animal suffering by limiting the offer, and hence production, of cruel products. Sales Bans further encourage jurisdictions to adopt stricter animal welfare rules. In the absence of sales bans, imported animal sourced products can be produced in jurisdictions with lower standards for cheaper costs, which may prompt animal-source producers to outsource production in countries with laxer regulation – "low animal-welfare havens". Additionally, such a competition between domestic and non-domestic producers abiding by lower standards may create a chilling effect on the domestic government, as domestic producers attempt to regain competitiveness by pressuring the government to lower local standards. Sales bans would not only prevent such a situation from occurring, it would also provide an incentive for countries that wish to export their products to improve their animal-welfare standards.
Sales bans also improve enforcement, as in the absence of bans on the sale of products, jurisdictions have no incentive to properly enforce animal welfare legislation, as they shy away from putting domestic producers at a disadvantage with imports. Lastly, sale bans also protect consumers from products that do not meet accepted standards due to the suffering inflicted upon animals.
Existing Sales Bans
Sales bans have been successfully applied worldwide in the past decades on the basis of public opinions towards animal cruelty and environmental protection. Some examples to that are the EU ban on the trade of products derived from seals, in addition to products obtained via cruel animal leghold traps. Similarly, EU law prohibits the imports and sale of cat and dog fur, as well as cosmetic products tested on animals.
Regarding farmed animals, non-EU countries must comply with animal welfare standards set forth in EU legislation on the welfare of pig and calves. As a result, any producers of live pigs and live calves exporting to the EU must comply with the EU legislation to be able to sell these live animals. (In practice though, the trade of live calves and live pigs to the EU is virtually non-existent.)
Nine US states, such as California and Massachusetts, have banned the sale and import of eggs from caged hens, that do not meet the local requirements regarding minimum conditions for keeping hens in their cage-free egg industries. In a 2023 Opinion, the US Supreme Court upheld the California sales bans, thereby confirming their legality with US Constitutional law. California also banned the production, import and sale of foie gras, due to the immense suffering caused to ducks and geese, and a similar ban is applied in New York City. The US has also prohibited the import of certain shrimp-sourced products due to the harm to environment and biodiversity involved in fishing practices, including harm to sea turtles.
Key Considerations
When evaluating, drafting or comparing farmed animal welfare laws and policies, local context, political feasibility and the regulatory environment all influence what one considers “Better Practice.” With that caveat in mind, when all else is equal, the following considerations indicate better and worse practices for laws and policies.
1. Compliance with International Trade Rules
International trade is regulated through a variety of agreements, which are either multilateral (concluded between different countries) or bilateral (concluded between two countries). The main multilateral agreements on trade is the General Agreement on Tariffs and Trade (GATT), which aim to promote international trade by reducing or eliminating trade barriers such as tariffs or quotas.
The GATT is enforced by the World Trade Organization (WTO), an international organization dealing with the global rules of trade. 164 countries are members of the WTO, accounting for 98% of world trade.
The GATT aims to prevent inter-state trade restrictions, to develop markets and to remove trade barriers that have the effect of advantaging domestic producers or certain countries. At the same time, the agreement also provides exemptions to the prohibition on trade restrictions, including on the basis of moral values, as long as these restrictions serve a legitimate objective, and are proportionate to such an objective. The WTO has thus recognised the legality of trade restrictions concerning animal welfare, considering that such restrictions were legitimate and proportionate.
In principle, sales bans and trade restrictions conflict with the GATT and so countries can challenge trade bans before the Dispute Settlement Body of the WTO. However, the GATT allows countries to impose restrictions on trade, as long as these are not being used for underlying purposes, such as arbitrariness or protectionism (i.e. when a ban is aimed to strengthen domestic producers in a discriminatory manner). In addition, a series of decisions by the WTO’s Dispute Settlement Body have clarified the rules on trade restrictions on animal products based on animal welfare and environmental considerations, including the protection of wildlife harmed by agribusiness.
Based on the GATT and the decisions handed down by the Dispute Settlement Body, bans may be authorized under Article XX of the GATT, which names 11 exceptions on trade that allow import and sale bans "subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade […].” Among these 11 exceptions are the protection of public morals (XXX(a)); the protection of human, animal or plant life or health (XX(b)); and the conservation of exhaustible natural resources (XX(g)).
To benefit from the exception provided in Article XX of the GATT, a country seeking to benefit must meet the following two conditions:
- Show that the legislation in question is necessary for the realisation of the objectives of protecting public morals; human, animal, or plant life or health; or the conservation of resources.
- Show that the said objective cannot be achieved through measures that are less harmful to trade relations.
- Show that the legislation does not constitute a measure whose real purpose, as opposed to its declared one, is to grant a commercial advantage to local businesses.
a. Restrictions necessary to protect public morality
An example of a sales ban taken on the ground of protecting public morals is the EU legislation banning the import and sale of seal products due to the inhumane suffering that such a practice inflicted upon young seals. However, this EU law was first found to be contrary to WTO rules by the WTO’s Dispute Settlement Body, as it only applied to imports, and allowed the sale of traditional seal products originating from Europe. In that sense, the EU law was found to favour EU seal products over non-EU ones. Following the decision by WTO’s Dispute Settlement Body, the EU amended its regulation to allow the imports and sales of seal products by Inuit or other indigenous minorities.
Another example of a sales bans aimed at protecting morals is the Israeli wildlife protection regulation banning the importation of fur, which was originally limited to cat and dog fur, and only applied to East Asian countries. However, the Ministry of Justice rejected the original bill because the Ministry had found it discriminatory under the GATT, and so the Legislature amended the bill in a way that it would cover all fur products, and all countries.
b. Additional restrictions concerning human and animal health, and wildlife protection
In 1988, the European Union (EU) has banned the sale of hormone-treated meat for human health reasons. The US and the EU have since engaged in a long-standing and acrimonious trade dispute over the EU’s decision to ban. Despite an ongoing series of dispute settlement proceedings and decisions by the WTO, there is continued disagreement between the United States and the EU on a range of legal and procedural issues, as well as the scientific evidence and consensus concerning the safety of hormone-treated beef. To date, the EU continues to ban imports of hormone-treated meat and restricts most meat exports to the EU to a limited quantity of hormone-free certified beef.
The Pigs and Calves Directives in the EU also restrict the imports of live piglets and calves, by requiring that importers provide “a certificate issued by the competent authority of that country, certifying that they have received treatment at least equivalent to that granted to animals of Community origin as provided for by this Directive,” likely for animal health reasons.
Spain and France have recently agreed to promote mirror clauses in EU trade agreements with third countries, ensuring that imported agricultural products meet the same environmental, health, animal welfare, or phytosanitary requirements, as well as production standards comparable to the European model. Animal protection NGOs are also in favour of the adoption of making EU animal welfare standards extra-territorial, including as part of the “End the Cage Age”, a European Citizens’ Initiative (ECI) which aims to phase out of caged farming in the European Union.
c. Restrictions based on wildlife protection objectives
The US law prohibiting the imports and sale of shrimps and shrimp products originating from fishing boats that did not use turtle excluders device. In 1997, India, Malaysia, Pakistan and Thailand brought a joint complaint against the US on the ground that the US sales ban was discriminatory. In this case, the WTO’s Dispute Settlement Body considered that the US had the right to restrict trade on shrimps and shrimp products to protect the environment considering that the sales ban applied equally to all countries, and the US law mandated all domestic fishing boats to be equipped with turtle excluder devices.
2. Cultural and Religious Aspects and Exemptions
Domestic traditions and religious customs practiced locally may justify to trade restrictions. This was the case for instance with the EU ban on the sale of seal products, which carved an exemption for seal products originating from indigenous Inuit communities to preserve these communities’ traditional seal hunting. Another example is Israel’s ban on the sale of fur products, which provides an exemption to allow religious communities to continue using traditional fur hats (shtreimels).
3. Policy Coherence and Enforcement Mechanisms
To prevent the creation of “low animal welfare havens,” sales bans should be included to any new animal welfare legislation so that imported animal-source products comply with domestic standards.
Such sales bans should further apply to all jurisdictions and to animal-source products, for more effectiveness and in compliance with WTO rules.
Animal welfare legislation should further provide effective enforcement mechanisms, ensuring that exporting countries comply with the said animal welfare requirements. This should include measures such as import certificates, on-the-spot inspections in the exporting country, assessment of the exporting country’s animal welfare regulation, and standards.
Authors: Talia Elkayam Swerdlin and Dorin Gold, under the supervision of Prof. Amnon Keren.
References
References
Charlotte Blattner, Protecting Animals Within and Across Borders (2019).
Louis Cholden-Brown, Missouri and Indiana Lay an Egg: Why the Latest Attempt at Invalidating State Factory Farm Regulations Must Fail, Chapman Law Review (2019).
Kate Cook and David Bowles, Growing Pains: The Developing Relationship of Animal Welfare Standards and the World, Review of European Community & International Environmental Law (2010).
Asaf Harduf Hamishpat, Out of Sight, Out of Conscious: Israeli Finance of Foreign Animal Cruelty, The College of Management Academic Studies Law Review) (2016).
Robert Howse, Johanna Langille and Katie Sykes, Pluralism in Practice: Moral Legislation and the Law of the WTO after Seal Products, George Washington International Law Review (2005).
Iyan Offor, Animals and the Impact of Trade Law and Policy: A Global Animal Law Question, Transnational Environmental Law (2020).
Sara Shields, Paul Shapiro, and Andrew Rowan, A Decade of Progress toward Ending the Intensive Confinement of Farm Animals in the United States, Animals (2017).
Katie Sykes, Animal Welfare and International Trade Law: The Impact of the WTO Seal Case (2021).
Oren Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (2004).
Further Readings
The Veblen Institute, “Globalisation: How Can We Stop the Import of Food Produced Using Banned Practices in Europe?” (2021).
Sales Bans Database
Law / Policy Name of the text | Topic The topic of the legislation or policy covered by the text | Species The animal, or type of food production, covered by the text | Type of Act Whether the act is a law, regulation, or policy, or another type of text | Status Indicates whether the act is in force or not |
|---|---|---|---|---|
| AgricultureAnimal healthAnimal welfare | All animals | Legislation | In force | |
| Animal healthAnimal welfareAntimicrobial resistance | Farmed animals | Legislative Proposal | Bill proposal | |
28-Hour Law USA | Animal welfare | Farmed animals | Legislation | In force |
| Alternative ProteinsPublic procurement | Farmed animals | Legislative Proposal | Bill proposal | |
| AgricultureAnimal healthAntimicrobial resistance | Farmed animals | Policy | In force | |
| Animal healthAnimal welfareWild-caught fishing | Fish | International Convention | In force | |
| AgricultureAnimal welfareClimate & environmental protection | Farmed animals | Legislative Proposal | In force | |
| Animal welfare | All animals | Constitution | In force | |
| Animal welfareRecognition of sentience | All animals | Legislation | In force | |
| Animal welfare | All animals | Constitution | In force | |
| Recognition of sentience | All animals | Legislation | In force | |
| Animal welfare | All animals | Constitution | In force | |
Article 80 of the Swiss Constitution Switzerland | Animal welfare | All animals | Constitution | In force |
| Animal welfareAquacultureRecognition of sentience | Farmed animalsFish | Legislation | In force | |
| AgricultureAnimal healthAntimicrobial resistance | All animals | Legislation | In force | |
| Recognition of sentience | All animals | Legislation | In force | |
| AgricultureAnimal welfare | Broiler chickens | Legislation | In force | |
| AgricultureAnimal healthAnimal welfareSales Bans | CalvesPigs | Legislation | In force | |
| AgricultureAnimal welfare | Calves | Legislation | In force | |
Canada 2020 NDC Canada | Climate & environmental protection | Farmed animals | Policy | In force |
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