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[Originally posted, with full hyperlinks, at http://eastasiaforum.org/author/lukenottage/]

Australia’s Productivity Commission recommended in 2006 several ways to improve our consumer product safety regulatory regime, which dates back to the 1970s. In 2008 it published a more comprehensive Inquiry Report to strengthen our entire consumer law and policy framework. Several recommendations, like an obligation on suppliers to report serious product-related accidents to regulators, will start to bring Australia up to the higher standards expected and implemented in Japan since the 1990s. Those track the higher priority given recently to consumer protection particularly in the EU.

Japan and the EU illustrate the thesis of ANU Professors John Braithwaite and Peter Drahos that “global business regulation” can accommodate both economic deregulation of protected sectors domestically, and improved “social regulation” or a safety net for vulnerable groups of citizens. Japan also shares with the EU a greater concern about risks potentially affecting consumers or the environment. By contrast, as Berkeley Professor David Vogel has pointed out, since the 1980s the US has become much more concerned about risks to national security. Australia seems to have gone the same way. Yet such differing risk perceptions remain under-appreciated particularly in the Australia-Japan context.

Addressing this tension is particularly important as both countries negotiate their FTA. No doubt, as under the multilateral WTO regime, it will allow each state to take measures to prevent health risks. Such measures must not be discriminatory or disguised trade barriers, and should draw on risk assessments influenced by international scientific and technical standards. Yet disputes decided by the WTO show that science cannot provide all the answers, and that states do and arguably should significant leeway in their attitudes towards risks.

Already, Australian exporters and legal advisors need to be aware of another round of sensitivity particularly regarding food safety issues on the part of Japanese citizens and their government – politicians, not just bureaucrats. Although hardly reported in Australia, 2007 saw a wave of whistle-blowing and intense media scrutiny regarding foods mislabelled by Japanese companies. This year, a major diplomatic row erupted regarding dumplings (gyoza) imported from China. Why, how, and when pesticides got into the dumplings is still controversial. But volumes and reputations of many Chinese exports into Japan have taking a pounding. More recently, completing the circle, a Japanese supplier of eels was found to have mislabelled large volumes as being from a well-known coastal town in Japan. In fact they were imported from China, and routed through an inland village with the same name, not known for its eels. Only the dumplings directly raise safety issues, but all these incidents highlight Japanese consumers’ renewed concerns about food quality.

One way forward for Australia, Japan and China is to formalise intergovernmental cooperation, going beyond conventional FTAs, along the lines of Food Standards Australia New Zealand. This would also represent another step towards more EU-like infrastructure (or mentality) within the Asia-Pacific.

Further reading: Luke Nottage and Joel Rheuben, “Dumplings and Dodgy Foods in Japan: Implications for the Australia-Japan FTA” 19(4) Australian Product Liability Reporter, August 2008

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Japanese Law in Asia-Pacific Socio-Economic Context