Kyra Bell-Pasht April 16, 2013 Local Food Procurement: Trade Agreement Restrictions in Ontario Obstacles & Opportunities

Trade agreements are on the rise Under which foreign companies granted broad rights, enforceable before trade tribunals (‘ISDS mechanisms’) – e.g. the right to nondiscrimination of products on the basis of geographic origin – Companies increasingly exercising these rights ($$ litigation) – Limiting regulation in the public interest (i.e. for environmental & local development purposes) (‘chill’) Environmental & food systems concerns are equally on the rise  one solution: local food procurement  Understanding trade agreement restrictions is key to developing effective local food procurement policies 2 Local Food Procurement in context

Ontario is affected by many trade agreements that potentially restrict its procurement activities, e.g.: The General Agreement on Tariffs and Trade (GATT) The Agreement on Government Procurement (AGP) The North American Free Trade Agreement (NAFTA) The Agreement on Internal Trade (AIT) And that may affect its procurement activities, e.g.: – Canada and European Union Trade Agreement (CETA) – Trans Pacific Partnership (TPP) 3 Canadian Trade Agreements: Ontario

Monetary thresholds – lowest for Ontario, $25,000, $100,000 MASH Sector (AIT) – n.b. No splitting to avoid trade agreement restrictions Exceptions (environmental, government purpose, etc.) – n.b. Interpreted narrowly Covered entities (Federal, Provincial, Municipal, MASH) – n.b. Toronto City Council motion for exemption from CETA (app. 50 similar Canadian municipal motions to date) Technical specifications permitted – But not if designed to avoid trade agreement provisions 4 Procurement: Trade Restrictions & Allowances

Subject to GATT & GPA procurement provisions EU directives guide EU procurement policies,  Emphasis on technical specifications Public Sector Food Procurement Initiative, 2003  encourages public bodies (hospitals, schools, prisons, and canteens) to procure food in a manner that considers the principles of sustainable development (sustainability criteria)  specify fresh & seasonal produce in their tenders for food  break larger contracts into lots 5 Examples of Local Food Procurement policies: United Kingdom

 Subject to AIT Environmental Goals & Sustainable Prosperity Act, ‘07 ∙ province to develop draft procurement policy by 2009: “Nova Scotia Preference” “In order to support the local manufacturing, agriculture and aquaculture industries, Departments are authorized to apply a preference for goods up to and including $10,000 excluding taxes, which are manufactured or produced in Nova Scotia, when it is determined to be in the best interest for the Province of Nova Scotia “ 6 Examples of Local Food Procurement policies: Nova Scotia

Local Food Plus Local sustainable food certification, broker & consultant, have assisted – Markham, 1 st Ontario municipality to develop local food procurement policy, originally %10 LFP, then %5 increase/year – University of Toronto, local food procurement policy, originally 10% LFP, incr. annually 7 Ontario Local Food Procurement

Broader Public Sector Investment Fund Grant program that supports increased amounts of local food served in hospitals, schools, and other broader public sector institutions City of Toronto Local Food Procurement Policy – 2008, goal was %50 – 2011, goal adjusted to %25 in 7 years Report of lessons learned 8 Ontario Local Food Procurement,

Bill 36, Ontario’s Local Food Act Government Bill that just passed 2 nd reading “increasing awareness, access and sales by enabling the government to set local food goals and targets, in consultation with stakeholders” – Possibility for local food procurement targets? Ontario Local Food Policy: requiring ministries to consider local food procurements under $25,000 9 Ontario Local Food Procurement

Technical specifications policies for food procurements that fall below monetary thresholds Focus on the MASH sector support non-profit organizations to facilitate procurement deals with the public sector 10 Conclusions

Thanks to: Sustain Ontario Kyra Bell-Pasht, Counsel N.B. none of the information provided in this presentation consists of legal advice, and should not be relied on as such. 11 Acknowledgements

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