REVIEW – WTO Report on Illicit Trade in Food and Food Fraud – Definitions

This is a review of how definitions are presented in the WTO report on ‘Illicit Trade in Food and Food Fraud.’ While the WTO does not have official definitions of these terms, these acts are illegal under one WTO trade rule or another. WTO recognizes related activity by ISO, CODEX, GFSI, and others.

From the cover page of the WTO report, there is an emphasis on global rules, trade between nations, improving  trade flows, and creating a positive, mutually beneficial economic environment (emphasis added):

• “The World Trade Organization [WTO} is the international body dealing with the global rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably, and freely as possible, with a level playing field for all its members.”

The back cover summarized the scope of the ‘Illicit Trade in Food and Food Fraud’ report – the stated focus is smuggling and counterfeiting (emphasis added):

• “International trade in food has helped to reduce global poverty and hunger. However, illicit trade in food and food fraud undermines the global food system and endanger public health.”
• “This publication looks into the challenges of combating illicit practices, such as smuggling and counterfeiting. Contributors examine the topic from a variety of perspectives, discussing how best to address illegal food trade and the role the WTO could play.”

This brief review of direct and cited definitions is greatly simplified from their 92-page report. The definitions are presented here from content in the chapters that are attributed to specific authors.

Definitions – What is NOT Officially Defined by WTO

The section of this review will cover the difficulty the report editors face in providing formal or official WTO definitions.

• “However, there is no internationally harmonized legal definition of food fraud or of illicit trade in food, and creating one is beyond the scope of this publication.” (Chapter 1 – Abdel-Motaal, WTO)
• “The WTO does not itself define the concept of illicit trade in food or food fraud, despite providing numerous legal instruments that aid WTO members every day in combating the phenomenon.” (Chapter 2 – Marceau, WTO)
• “Illicit trade in agri-food products is a multifaceted phenomenon that eludes a clear definition and attempting to confirm one is beyond the scope of this chapter. [1]” (Chapter 1 – Abdel-Motaal, WTO)
  • Reference “[1]”: “[1] What is more important than finding an abstract definition is that, when addressing an instance of illicit agri-food trade, the nature of the infringement, be it adulteration, smuggling, intellectual property right (IPR) violations or something else, is precisely pinpointed so that the fitting policy instrument can be chosen to combat it.”
• “WTO rules do not define what distinguishes licit [trade] and illicit trade. [3]” (Chapter 2 – Marceau, WTO)
  • Reference “[3]”: “Although, note the references in the First Recital of the Preamble and Article 41.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to “legitimate trade,” emphasizing that the TRIPS Agreement’s enforcement measures, which are designed to combat intellectual property right (IPR)-infringing illicit trade, should not become barriers to legitimate trade.”

In summary, this report states that no formal or official WTO definition of food fraud, illicit trade, or illicit agri-food trade exists. Nevertheless, it appears that all types of food fraud – and illicit trade in food – are illegal under one of possibly many laws or regulations. The document did provide three separate violations, including adulteration (adulterant-substances), smuggling, and IPR counterfeiting.

Definitions – Non-WTO Cited References

The section of this review will cover a review of published and cited definitions:

• At present, the most well-known and widely accepted definition of food fraud is by Spink and Moyer (2011): “Food fraud is a collective term used to encompass the deliberate and intentional substitution, addition, tampering, or misrepresentation of food, food ingredients, or food packaging; or false or misleading statements made about a product, for economic gain.” It acts as a core definition that captures the main fraudulent practices in the agri-food sector. [4]” (Chapter 1 – Abdel-Motaal, WTO)
  • Reference “[4]”: “See also the International Organization for Standardization (ISO) Standard ISO 22380:2018, Security and Resilience: Authenticity, Integrity and Trust for Products and Documents – General Principles for Product Fraud Risk and Countermeasures, which “establishes general principles for an organization to identify the risks related to various types of product fraud and product fraudsters.”(Chapter 1 – Abdel-Motaal, WTO)
  • Reference “[4]”: “ISO 22380:2018 defines the types of food fraud as: adulterant-substances (dilution, substitution, concealment, and unapproved enhancements); mislabeling and misbranding; gray market or parallel trade; smuggling; theft; simulation; production over-run; and intellectual property rights counterfeiting.” (Chapter 1 – Abdel-Motaal, WTO)
  • Note: although not mentioned in the report, ISO 22380 does have a published definition of product fraud: wrongful or criminal deception utilizing material goods for financial or personal gain; Fraud means wrongful or criminal deception intended to result in financial or personal gain creating social or economic harm.
• “[Illlicit trade in agri-food] …captures a wide spectrum of practices, including food smuggling, avoiding customs duties, exploiting price differentials across origin and destination markets, and committing fraudulent behavior to deceive consumers about food quality, content or features.” (Chapter 3 – Hardy, Transnational Alliance to Combat Illicit Trade)

In summary, the non-WTO definitions help frame the report’s focus and future WTO activity related to illicit trade in food and food fraud.

Definitions – Mention of Other Authorities

• “The [US FDA] states that economically motivated adulteration (EMA)… “when someone intentionally leaves out, takes out, or substitutes a valuable ingredient or part of a food” or “when someone adds a substance to a food to make it appear better or of greater value.” (Chapter 1 – Abdel-Motaal, WTO)
• “[The] European Union which considers food fraud to be a “suspected intentional action by businesses or individuals for the purpose of deceiving purchasers and gaining undue advantage there from, in violation of the rules referred to in Article 1(2) of Regulation (EU) 2017/625” on EU agri-food chains.” (Chapter 1 – Abdel-Motaal, WTO)
• “[The] Codex Alimentarius Commission is developing a new guidance document on food fraud that is expected to be published in 2024 or 2025. It aims to develop definitions and update the existing instruments of Codex to address horizontal and cross-cutting issues.” (Chapter 1 – Abdel-Motaal, WTO)
• The definition and requirements of food fraud related to the Global Food Safety Initiative (GFSI) were mentioned. Although it was not published in the WTO report, GFSI defines food fraud as “A collective term encompassing the deliberate and intentional substitution, addition, tampering or misrepresentation of food, food ingredients or food packaging, labeling, product information or false or misleading statements made about a product for economic gain that could impact consumer health.” (Chapter 6 – Lissaur, SSAFE)

Reference:

Spink, J, and Moyer, DC, (2011) Defining the Public Health Threat of Food Fraud, Journal of Food Science, Volume 75 (Number 9), p. 57-63, URL: http://onlinelibrary.wiley.com/doi/10.1111/j.1750-3841.2011.02417.x/abstract