WORLD TRADE
ORGANIZATIONWT/CTE/W/192
G/TBT/W/162
19 June 2001
(01-3047)
Committee on Trade and Environment
Committee on Technical Barriers to TradeOriginal:  English
MARKING AND LABELLING REQUIREMENTS
Submission from Switzerland
I. PURPOSE AND SCOPE
A. NEED FOR CLARIFICATION
1. On national and regional level there is a growing number of various marking and labelling
requirements1 which are regularly subject to discussions and concerns raised within the TBT
Committee’s debates on the implementation and operation of the TBT Agreement.  On the occasion of
the Second Triennial Review, the Committee reiterated “the importance of any such requirements being
consistent with the disciplines of the Agreement, a nd in particular stressed that they should not become
disguised restrictions on trade2”.
2. In the framework of the ongoing negotiations on agriculture, Switzerland’s negotiating
proposal3 identified non-tariff issues, such as labelling and consumer’s choice, as matters of great
importance for the agricultural reform process and therefore suggested that the TBT Committee be
mandated to resolve the open labelling questions that could impact the outcome of the negotiations.
3. The general applicability of the TBT Agreem ent to marking and labelling requirements has
never been disputed, but discussions imply that it is not clear to what extent the TBT provisions apply to
the various marking and labelling schemes.  This s ituation leads to legal uncertainty and therefore
weakens the effectiveness of the Agreement. 
B. SCOPE
4. The definitions of “technical regulation” and “standard” in Annex 1 of the TBT Agreement refer
to requirements dealing with “terminology, symbols, packaging, marking or labelling”.  With a view to
facilitating understanding, this submission refers to  marking and labelling requirements only, but intends
to include terminology and symbols as well.
5. Furthermore, this submission is limited to marking and labelling requirements as enacted by
government bodies. It does not discuss non-governmental initiatives.
6. In line with the mandate of the TBT Committee,  the submission solely examines marking and
labelling requirements from the perspective of the TBT Agreement and not from other WTO
Agreements.
                                                     
1 For a compilation of environmental labelling and marking notifications under the TBT Agreement see document
WT/CTE/W/150, dated 29 June 2000.
2 G/TBT/9 paragraph 48.
3 G/AG/NG/W/94.WT/CTE/W/192
G/TBT/W/162
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II. CONCERNS TO BE ADDRESSED
7. Many Members, in particular developing c ountries, are concerned that tariff barriers are
increasingly being replaced by other measures, such as high quality standards and respective marking
and labelling requirements, which might have the effect of creating new barriers to trade.
8. In this respect, one of the biggest challenges to developing countries is the great variety of
divergent national or regional marking and labelling requirements.  The TBT Agreement recognizes the
importance of harmonization of techni cal regulations and standards for the facilitation of international
trade.  Hence, international harmonization of  marking and labelling requirements could, as one
instrument among others, actively contribute to improve access for developing countries’ products to
industrial countries' markets.
9. A further important issue is that marking and labelling requirements offer interesting
opportunities to developing  countries.  Initiated by the increasing environmental awareness in industrial
countries, a new market for products from developing countries has emer ged during the last years.  For
example, developing countries’ produc ts, such as organically produced coffee or tea, tropical fruits and
jute have successfully gained market shares in a growth sector in industrial countries; moreover,
consumers are willing to pay higher prices for such products, which can lead to higher benefits.  This
trend is likely to continue.
10. Another concern raised with respect to labe lling issues is that marking and labelling
requirements could be misused by government bodies for protectionist purposes.  Within the provisions
of the TBT Agreement regulatory or standardizin g bodies are obliged to ensure that technical
regulations or standards are not prepared, adopted or  applied with a view to, or with the effect of,
creating unnecessary obstacles to international tr ade.  The TBT Agreement thus provides strong
instruments against protectionism.
11. Additionally, it should be taken into considerati on that the threat of labelling schemes being
misused by government bodies for protectionist purposes is far greater if there is a lack of clarity on the
extent to which the provisions of the TBT Agr eement apply to marking and labelling requirements.
12. Due to the fact that consumers are willing to pay higher prices for e.g. environmentally
friendly products, there is a risk of misuse of marks and labels by producers.  In order to obtain a
certain mark or label and thus profit from greater benefits, producers might deceive authorities and
consumers by pretending to meet the pertinent requirements.  This threat of deceptive practices is
therefore another concern to be addressed.
13. For all the reasons outlined above, Switzerland be lieves that an in depth discussion on marking
and labelling issues would not only contribute to a better common understanding on the obligations
under TBT Agreement, but could also address concerns relating to market access, in particular of
products from developing countries, and the misu se of marking or labelling requirements for
protectionist purposes or  deceptive practices.
III. PROVISIONS UNDER THE TBT AGREEMENT REFERRING TO MARKING AND
LABELLING
A. MARKING AND LABELLING REQUIREMENTS AS TECHNICAL REGULATIONS / STANDARDS
14. Definitions of technical regulations and st andards under Annex 1 of the TBT Agreement:
Technical regulation: "Documen t which lays down product characteristics or their related
processes and production methods, including the applicable administrative provisions, withWT/CTE/W/192
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which compliance is mandatory.  It may also include or deal exclusively with terminology,
symbols, packaging, marking or labelling requirements as they apply to a product, process or
production method." [emphasis added]
Standard: "Document approved by a recognized body, that provides, for common and repeated
use, rules, guidelines or characteristics for products or related processes and production
methods, with which compliance is not mandatory.  It may also in clude or deal exclusively with
terminology, symbols, packaging, marking or labelling requirements as they apply to a product,
process or production method." [emphasis added]
15. Marking and labelling requirements falling within  the scope of the TBT Agreement are subject
to the TBT provisions laying down specific oblig ations, such as non-discrimination, abstention from
creating unnecessary obstacles to trade, proportionality, etc..
B. MARKING AND LABELLING AS PART OF THE CONFORMITY ASSESSMENT PROCEDURE
16. Additionally, marking and labelling is covered by the provisions relating to conformity
assessment procedures (Articles 5 to 8 of the TB T Agreement).  Pursuant to Article 5.1.1 of the
Agreement, Members shall ensure that their cen tral government bodies, local government bodies
(according to Article 7.1) and non-government bodies (according to Article 8.1) apply the nationaltreatment obligation.  This obligation entails the suppliers' right to an assessment of conformity and to
receive the mark of the system.
17. For example, a technical regulation may require  that environmentally friendly varnish does not
contain certain dangerous substances.  For the placing of this varnish on the market as an
environmentally friendly product, a conformity asse ssment may be required.  Once the conformity with
the technical regulation has been determined, the produ cer is authorized to use the mark of the system
provided that he can assure that his product will co ntinue to meet the corresponding conformity criteria.
IV. OPEN QUESTIONS
A. M
ANDATORY OR VOLUNTARY LABELLING ?
18. According to the TBT Agreem ent, there are two categories of marking and labelling
requirements, depending on whether compliance with the requirements is mandatory (technical
regulation) or voluntary (standard).  As clear as this distinction may be in theory, it undoubtedly raises
great difficulties in practice, since it is not always clear-cut.
19. For instance, a specific marking or labelling requirement, enacted by a central government
body, may be voluntary in nature and therefore be c onsidered to be a standard as defined in Annex 1.
However, if this standard has the effect of mark et segregation, compliance with the standard becomes
factually mandatory for a producer wishing to access the newly created segment of the market.  For
example, access for an organically produced cheese to an “organic” ecolabel and thus to the market for
organic food is denied unless the producer proves that  his product is in conformity with the voluntary
standard.
20. In such cases, it is highly questionable whether the distinction between technical regulations and
standards is justified. Consequently, the different le vels of obligations linked with technical regulations
and standards are also questionable.  For technical  regulations, on one hand, Ar ticle 2.1 requires nationalWT/CTE/W/192
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treatment in a binding manner.  For standards, on th e other hand, only paragraph D of the Code of Good
Practice4, acceptance of which is optional, refers to national treatment.
21. Further, it can be argued that if marking or la belling requirements are considered to be part of a
conformity assessment procedure, as explained abov e (see paragraph 13), they would be subject to the
national treatment provision contai ned in Article 5.1 of the TBT Agreement, regardless of their nature
(voluntary or mandatory).  Therefore, any differentia tion in obligations linked with technical regulations
or standards seems even more questionable.
B. QUESTIONS RELATING TO MARKING AND LABELLING REQUIREMENTS BASED ON PROCESS AND
PRODUCTION METHODS (PPMS )
22. Another current distinction among marking and labelling requirements is the one between:
(a)  marks and labels based on the characteristics of a product
(b)  marks and labels based on PPMs that reveal in the characteristics of a product
(c)  marks and labels based on PPMs that do not reveal in the characteristics of a product.
23. Still, there is no clear-cut distinction between th ese three types of marks and labels.  Thus, in
practice it can be difficult to assign a particular mark  or label to one of these three types.  This can be
illustrated by using the example of an ecolabel fo r organically produced carrots.  When comparing a
large quantity of organically produced carrots with an equal amount of conventionally produced carrots,
on the average the organic carrots will contain a sign ificantly lower concentration of possibly harmful
substances (e.g. pesticide residues), which might indicate a type (b) nature of this ecolabel.  On the other
hand, when comparing one single organically produced carrot with one single conventionally cultivated
carrot, there might be no significant difference det ectable, which indicates a type (c) nature of this
ecolabel.
24. Consequently it can be argued that this three- part division of marks and labels implicates a
certain vagueness; therefore, it would be  desirable to reconsider this division.
25. Another uncertainty exists regarding the app licability of the TBT Agreement to marks and
labels of type (c).  This uncertainty is primarily  a result of the ambiguous terminology used in the
definitions of technical regulations and standard s. Annex 1, paragraph 1, first sentence of the TBT
Agreement refers to documents which lay down product characteristics or their related PPMs.  However,
in Annex 1, paragraph 2, first sentence this link  between product characteristics and PPMs is less
evident.  Finally, the second sentences of both paragraphs, which explicitly mention marking or
labelling requirements, do not require product-relatedness of PPMs at all; moreover, these sentences use
a broader approach by referring to “a product” rather than to “product characteristics”.  This incoherence
in terminology displays the ambiguity of the defi nitions and, therefore, raises the question whether
marks and labels of type (c) are covered by the TBT Agreement.
C. LEGITIMATE OBJECTIVES UNDERLAYING MARKING AND LABELLING REQUIREMENTS
26. Pursuant to Article 2.2 of the TBT Agreement, technical regulations shall not be more trade
restrictive than necessary to fulfil a legitimate objec tive.  Furthermore, this provision contains a non-
exhaustive list of legitimate objectives, such as the pr evention of deceptive practices.  Still, the aspect of
consumer information, often the primary reason for establishing marking or labelling requirements, is
not explicitly mentioned in this list.  This raises the question whether consumer information constitutes a
legitimate objective for technical regulations.  The fact that the prevention of deceptive practices is
                                                     
4 Annex 3 of the TBT Agreement.WT/CTE/W/192
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explicitly mentioned in the non-exhaustive list of legitimate objectives could provide contextual support
for the inclusion of consumer information, as the latter contributes directly to the prevention of
deceptive practices.
V. CONCLUSIONS AND WAY FORWARD
27. In the view of Switzerland, a thorough discussion on the open issues outlined in this submission
could contribute to the clarificati on on how and to what extent the TBT Agreement applies to marking
and labelling requirements.  The improved effectiv eness in the operation of the Agreement, possibly
resulting from such a discussion, would be in the interest of all Members.
28. Furthermore, such a discussion could contribute to:
− facilitating market access for products originating in developing countries;
− ensuring that marking or labelling requirements are not misused for protectionist purposes or
deceptive practices;
− identifying major marking and labelling scheme s with a view to providing a basis for a
possible international harmonization of such requirements, thus further facilitating trade.
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