Dalhousie Journal of Legal Studies


Holly J. Sutton


Non-tariff technical barriers to trade in agriculture are one of the numerous issues addressed by the Canada-United States Free Trade Agreement. A non-tariff barrier to trade may be "any law, regulation, policy, or practice of a government, other than an import duty, that has a restrictive effect on trade," and may include health standards if they inhibit the importation of foods that do not meet designated standards. article 708 of the FTA addresses itself to reducing barriers resulting from technical regulations, by committing both nations to work toward harmonizing – a term which is defined in the Agreement as "making identical" – their technical regulations, taking into account appropriate international standards or, where harmonization is not feasible, to make equivalent their respective technical regulatory requirements. The parties additionally agree to work toward the elimination of technical regulations and product standards that are arbitrary, unjustifiable, or disguised barriers to bilateral trade. A most significant aspect of article 708, however, provides that the nations' commitment to work toward harmonization will be consistent with the legitimate need for standards that protect human, animal, and plant life, thus creating an exception for technical standards that are based on legitimate national health and sanitary concerns. As a result, a Canadian or United States requirement that prohibits the use of a given pesticide for health reasons, to use the example that will be taken up in this paper, may be exempted from the objective of harmonizing under the FTA. article 708:2(a), however, which speaks to arbitrary or disguised standards, would oppose a nation's reliance on the human health exception if the standard is unjustifiable. In such a case it would be inconsistent with the objectives of the FTA. How these provisions apply to the Canadian export of lowbush blueberries to the United States, which has been impeded by a United States pesticide regulation, is the focus of the Note and Comment. The state of Canadian-U.S. harmonization of technical regulations, of which the Nova Scotian blueberry issue is just one reflection, is considered throughout.

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Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.

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