WT/DS384/AB/RW  
WT/DS386/AB/RW  
 
18 May 2015  
(15-2569)  Page: 1/191  
  Original: English  
 
 UNITED STATES – CERTAIN COUNTRY OF  
ORIGIN LABELLING (C OOL) REQUIREMENTS 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CANADA AND MEXICO 
AB-2014-10 
Reports of the Appellate Body 
Note: 
 
The Appellate Body is issuing these Reports in th e form of a single document constituting two 
separate Appellate Body Reports: WT/DS384/AB/RW; and WT/DS386/AB/RW. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to both Reports. The page header throughout the document bears the two document symbols WT/DS384/AB/RW and 
WT/DS386/AB/RW, with the following exceptions: section 6 on pages CDA-169 to CDA-172, which 
bears the document symbol for and contains the Appellate Body's conclusions and recommendation in the Appellate Body Report WT/DS384/AB/RW; and section 6 on pages 
MEX-173 to MEX-176, which bears the document sy mbol for and contains the Appellate Body's 
conclusions and recommendation in the Appellate Body Report WT/DS386/AB/RW.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Table of Contents 
 
1  INTRODUC TION ................................................................................................ 11  
2  ARGUMENTS OF THE PARTICIPAN TS AND THIRD PARTICIPANTS ..................... 16  
2.1  Claims of error by the Un ited States – Appellant .............................................. 16 
2.1.1  Article 2.1 of the TBT Agreement ........................................................................... 16 
2.1.1.1  The increased recordkeeping burden  entailed by the amended COOL measure ............. 17 
2.1.1.2  The accuracy of labels pre scribed by the amen ded COOL measure ............................. 18 
2.1.1.3  The exemptions under the amended COOL measure ................................................. 20 
2.1.2  Article 2.2 of the TBT Agreement ........................................................................... 23 
2.1.3  Articles III:4 an d IX of th e GATT 1994 ................................................................... 24 
2.1.4  Article XX of the GATT 1994 ................................................................................. 25 
2.1.5  Article XXIII:1(b) of the GATT 1994 ....................................................................... 26 
2.2  Arguments of Ca nada – Appe llee ...................................................................... 26 
2.2.1  Article 2.1 of the TBT Agreement ........................................................................... 26 
2.2.1.1  The increased recordkeeping burden  entailed by the amended COOL measure ............. 26 
2.2.1.2  The accuracy of labels pre scribed by the amen ded COOL measure ............................. 28 
2.2.1.3  The exemptions under the amended COOL measure ................................................. 30 
2.2.2  Article 2.2 of the TBT Agreement ........................................................................... 32 
2.2.3  Articles III:4 an d IX of th e GATT 1994 ................................................................... 33 
2.2.4  Article XX of the GATT 1994 ................................................................................. 33 
2.2.5  Article XXIII:1(b) of the GATT 1994 ....................................................................... 34 
2.3  Arguments of Me xico – Appe llee ....................................................................... 34 
2.3.1  Article 2.1 of the TBT Agreement ........................................................................... 34 
2.3.1.1  The increased recordkeeping burden  entailed by the amended COOL measure ............. 34 
2.3.1.2  The accuracy of labels pre scribed by the amen ded COOL measure ............................. 36 
2.3.1.3  The exemptions under the amended COOL measure ................................................. 37 
2.3.2  Article 2.2 of the TBT Agreement ........................................................................... 39 
2.3.3  Articles III:4 an d IX of th e GATT 1994 ................................................................... 40 
2.3.4  Article XX of the GATT 1994 ................................................................................. 40 
2.3.5  Article XXIII:1(b) of the GATT 1994 ....................................................................... 41 
2.4  Claims of error by Canada – Other appellant ..................................................... 41 
2.4.1  Article 2.1 of the TBT Agreement ........................................................................... 41 
2.4.1.1  The Panel's analysis of Label D .............................................................................. 41 
2.4.1.2  The Panel's analysis of Label E .............................................................................. 42 
2.4.1.3  The prohibition of a trace-back system ................................................................... 43 
2.4.2  Article 2.2 of the TBT Agreement ........................................................................... 44 
2.4.2.1  Intr oducti on ....................................................................................................... 44 
2.4.2.2  The legal test under Ar ticle 2.2 of the TBT Agreement .............................................. 45 
2.4.2.3  The degree of contribution made by the amended COOL measure to its objective ......... 46 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.4.2.4  The first and second pr oposed alternat ive measures ................................................ 47 
2.4.2.5  The third and fourth proposed alternative measures ................................................. 48 
2.4.3  Article XXIII:1(b) of the GATT 1994 ....................................................................... 49 
2.5  Claims of error by Me xico – Other a ppellant ..................................................... 49 
2.5.1  Article 2.1 of the TBT Agreement ........................................................................... 49 
2.5.1.1  The Panel's analysis of Label E .............................................................................. 49 
2.5.2  Article 2.2 of the TBT Agreement ........................................................................... 50 
2.5.2.1  Intr oducti on ....................................................................................................... 50 
2.5.2.2  The legal test under Ar ticle 2.2 of the TBT Agreement .............................................. 51 
2.5.2.3  The degree of contribution made by the amended COOL measure to its objective ......... 53 
2.5.2.4  The first and second pr oposed alternat ive measures ................................................ 53 
2.5.2.5  The third and fourth proposed alternative measures ................................................. 54 
2.5.3  Article XXIII:1(b) of the GATT 1994 ....................................................................... 55 
2.6  Arguments of the United States – Appellee ....................................................... 55 
2.6.1  Article 2.1 of the TBT Agreement ........................................................................... 55 
2.6.1.1  The Panel's analysis of Label D .............................................................................. 56 
2.6.1.2  The Panel's analysis of Label E .............................................................................. 57 
2.6.1.3  The prohibition of a trace-back system ................................................................... 57 
2.6.2  Article 2.2 of the TBT Agreement ........................................................................... 58 
2.6.2.1  Intr oducti on ....................................................................................................... 58 
2.6.2.2  The legal test under Ar ticle 2.2 of the TBT Agreement .............................................. 58 
2.6.2.3  The degree of contribution made by the amended COOL measure to its objective ......... 60 
2.6.2.4  The first and second pr oposed alternat ive measures ................................................ 61 
2.6.2.5  The third and fourth proposed alternative measures ................................................. 62 
2.6.3  Article XXIII:1(b) of the GATT 1994 ....................................................................... 62 
2.7  Arguments of the th ird participants .................................................................. 63 
2.7.1  Australia ............................................................................................................ 63 
2.7.2  Brazil ................................................................................................................ 64 
2.7.3  China ................................................................................................................ 64 
2.7.4  Colombia ........................................................................................................... 65 
2.7.5  Europe an Union .................................................................................................. 66 
2.7.6  Japan ................................................................................................................ 69 
2.7.7  Korea ................................................................................................................ 71 
2.7.8  New Zealand ...................................................................................................... 72 
3  ISSUES RAISED IN  THIS APPEAL ...................................................................... 72  
4  BACKGROUND AND OVERVIEW OF THE MEASURE AT ISSUE ............................. 74  
4.1  Introduc tion ..................................................................................................... 74 
4.2  Overview of the am ended COOL me asure ......................................................... 75 
4.3  Coverage of the am ended COOL me asure ......................................................... 76 
4.4  Categories of meat ............................................................................................ 77 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 4.5  Labelling requ irements ..................................................................................... 78 
4.6  Flexib ilities ....................................................................................................... 81 
5  ANALYSIS OF THE APPELLATE BODY ................................................................. 82  
5.1  Article 2.1 of th e TBT Agreem ent ...................................................................... 82 
5.1.1  Intr oducti on ....................................................................................................... 82 
5.1.2  Claims of the United States und er Article 2.1 of the TBT Agreement ........................... 83 
5.1.2.1  Claims relating to the Panel's analysis of the recordkeeping burden entailed by 
the amended C OOL meas ure ................................................................................ 83 
5.1.2.2  Claims relating to the Panel's analysis of the accuracy of the labels prescribed 
by the amended COOL measure ............................................................................ 93 
5.1.2.3  Claims relating to the exemptions  prescribed by the amended COOL measure ............. 98 
5.1.3  Claims of Canada and Mexico under Article 2.1 of the TBT Agreement ....................... 109 
5.1.3.1  Whether the Panel erred in its assessment of Label D under Article 2.1 of the 
TBT Agreement ................................................................................................. 110 
5.1.3.2  Whether the Panel erred in its assessment of Label E under Article 2.1 of the 
TBT Agreement ................................................................................................. 115 
5.1.3.3  Whether the Panel erred in its assessment of the amended COOL measure's 
prohibition of a trace-back system under Article 2.1 of the TBT Agreement ................ 120 
5.2  Article 2.2 of th e TBT Agreem ent .................................................................... 122 
5.2.1  Interpretation of Articl e 2.2 of the TBT Agreement ................................................. 123 
5.2.2  Claims of error with respect to the legal test for "more trade-restrictive than 
necessary" under Article 2.2 of the TBT Agreement ................................................ 130 
5.2.3  Claims of error with respect to the Panel's finding on the amended COOL 
measure's degree of contributi on to its ob jective ................................................... 134 
5.2.4  Claims of error with respect to the Panel's interpretation and application of the 
phrase "taking account of the risks non-fulfilment would create" in Article 2.2 of the TBT Agreement ........................................................................................... 137 
5.2.4.1  The United States' claim that the Panel erred in its interpretation of the phrase 
"taking account of the risks non- fulfilment would create" ........................................ 137 
5.2.4.2  Canada's and Mexico's claims that the Panel erred in the factors it took into 
account in assessing "the risks non-fulfilment would create" .................................... 143 
5.2.4.3  Claims of error with respect to the Panel's finding that Canada and Mexico failed 
to make a prima facie  case that the first and second proposed alternative 
measures would make an equivalent degree of contribution to the amended 
COOL measure's objective .................................................................................. 149 
5.2.4.4  Claims of error with respect to the Panel's assessment of certain evidence and 
arguments in respect of consumer  demand for origin information ............................. 153 
5.2.4.5  Completion of the legal analysis with respect to the first and second proposed 
alternative me asures ......................................................................................... 153 
5.2.5  Claims of error with respect to the third and fourth proposed alternative 
measures ......................................................................................................... 155 
5.3  Article III:4 and Articl e IX of the GATT 1994 .................................................. 160 
5.3.1  The Panel's findings ........................................................................................... 160 
5.3.2  Article IX of the GATT 1994 as relevant context for the interpretation of 
Article III:4 of the GATT 1994 ............................................................................. 161 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.4  Article III:4 and Arti cle XX of the GATT 1994 ................................................. 164 
5.4.1  Interim review sectio n of the Panel Reports .......................................................... 165 
5.4.2  The availability of an Article XX exception with respect to the amended COOL 
measure .......................................................................................................... 166 
5.5  Article XXIII:1(b)  of the GA TT 1994 ............................................................... 168 
6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT 
WT/DS384/AB/RW ................................................................................. CDA-169  
6   FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT 
WT/DS386/AB/RW ................................................................................. MEX-173  
 ANNEX 1  United States' Notice of A ppeal .......................................................................... 177 
ANNEX 2  Canada's Notice  of Other A ppeal ........................................................................ 179 
ANNEX 3  Mexico's Notice  of Other A ppeal ......................................................................... 181 
ANNEX 4  Procedural Ruling of 2 December 2014 ................................................................ 184 
ANNEX 5  Procedural Ruling of 17 December 2014 .............................................................. 188 
ANNEX 6  Procedural Ruling of 7 January 2015 ................................................................... 190 
 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 ABBREVIATIONS USED IN THESE REPORTS 
Abbreviation Description 
2002 Farm Bill  Farm Security and Rural Investment Act of 2002, Public Law No. 107-171, 
Section 10816, 116 Stat. 134 (Panel Exhibit CDA-4) 
2008 Farm Bill  Food, Conservation, and Energy Act of 2008, Public Law No. 110-234, 
Section 11002, 122 Stat. 923 (Panel Exhibit CDA-5) 
2009 Final Rule (AMS)  Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, Lamb, 
Chicken, Goat Meat, Wild and Farm-Rai sed Fish and Shellfish, Perishable 
Agricultural Commodities, Peanuts, Pe cans, Ginseng, and Macadamia Nuts, 
United States Federal Register , Vol. 74, No. 10 (15 January 2009), 
pp. 2658-2707 (Panel Exhibits CDA-2 and MEX-12) 
2013 Final Rule  Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, Lamb, 
Chicken, Goat Meat, Wild and Farm-Rai sed Fish and Shellfish, Perishable 
Agricultural Commodities, Peanuts, Pe cans, Ginseng, and Macadamia Nuts, 
United States Federal Register , Vol. 78, No. 101 (24 May 2013), 
pp. 31367-31385 (Panel Exhibits CDA-1 and MEX-3) 
amended COOL measure COOL statute together with the 2009 Final Rule (AMS), as amended by the 
2013 Final Rule 
AMS Agricultural Marketing Service of the USDA 
BCI business confidential information  
COOL  country of origin labelling 
COOL statute  Agricultural Marketing Act of 1946, 60 Stat. 1087, United States Code , Title 7, 
Section 1621 et seq., as amended by the 2002 Farm Bill and the 2008 Farm Bill (Panel Exhibit CDA-3) 
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Go verning the Settlement of Disputes  
GATS General Agreement on Trade in Services 
GATT 1994  General Agreement on Tariffs and Trade 1994 
original COOL measure COOL statute together with the 2009 Final Rule (AMS) 
original panel  panel in the original proceedings in US – COOL   
original panel reports Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R 
PACA Perishable Agricultural Commodities Act of 1930, United States Code of 
Federal Regulations , Title 7, Section 499 (Panel Exhibits CDA-10 and MEX-7) 
Panel Reports  Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements – Recourse to Article 21.5 of the DSU by Canada and Mexico , 
WT/DS384/RW and Add.1 / WT/DS386/RW and Add.1 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures 
TBT Agreement  Agreement on Technical Barriers to Trade 
USDA  United States Depart ment of Agriculture 
Working Procedures  Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010 
WTO World Trade Organization  
WTO Agreement Marrakesh Agreement Establishing  the World Trade Organization WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 PANEL EXHIBITS CITED IN THESE REPORTS 
Exhibit No. Short Title 
(if any) Description 
CDA-1  
MEX-3 2013 Final Rule Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, 
Lamb, Chicken, Goat Meat, Wild an d Farm-Raised Fish and Shellfish, 
Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts,  United States Federal Register , Vol. 78, No. 101 
(24 May 2013), pp. 31367-31385  
CDA-2 
MEX-12  2009 Final Rule 
(AMS) Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, 
Lamb, Chicken, Goat Meat, Wild an d Farm-Raised Fish and Shellfish, 
Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and 
Macadamia Nuts, United States Federal Register , Vol. 74, No. 10 
(15 January 2009), pp. 2658-2707  
CDA-3 COOL statute Agricultural Marketing Act of 1946, 60 Stat. 1087, United States Code , 
Title 7, Section 1621 et seq., as amended by the 2002 Farm Bill and the 2008 Farm Bill  
CDA-4  2002 Farm Bill Farm Security and Rural Investment Act of 2002, Public Law 
No. 107-171, Section 10816, 116 Stat. 134  
CDA-5  2008 Farm Bill Food, Conservation, and Energy Act of 2008, Public Law No. 110-234, 
Section 11002, 122 Stat. 923  
CDA-10 
MEX-7 PACA Perishable Agricultural Commodities Act of 1930, United States Code of 
Federal Regulations , Title 7, Section 499  
CDA-17   United States District Court for the District of Colombia, American Meat 
Institute v. United States Department of Agriculture , Case 
No. 13-cv-1033, Declaration of Brad McDowell in Support of Plaintiffs' Motion for a Preliminary Injunction (25 July 2013)  
CDA-83  
MEX-35 
MEX-62   M.R. Taylor and G.T. Tonsor, "Revea led Demand for Country of Origin 
Labeling of Meat in the United States" (2013) 38(2) Journal of 
Agricultural and Resource Economics , pp. 235-247  
CDA-121   American Meat Institute (AMI) Fact Sheet, "Questions and Answers 
about Ground Beef, Hamburger and Patties" (June 2011)  
CDA-154   Department of Agricultural Econ omics, Kansas State University 
entitled, "Food Values Applied to Li vestock Products" (7 February 2014) 
US-48  Results of a telephone survey conducted by the National Research 
Center, "Country of Origin Labeling Poll, Final Report" (4 October 2010)  
CASES CITED IN THESE REPORTS 
Short Title Full Case Title and Citation 
Argentina – Hides and 
Leather Panel Report, Argentina – Measures Affecting th e Export of Bovine Hides and 
Import of Finished Leather , WT/DS155/R and Corr.1, adopted 16 February 
2001, DSR 2001:V, p. 1779 
Argentina – Textiles and 
Apparel Appellate Body Report, Argentina – Measures Affect ing Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 
22 April 1998, DSR 1998:III, p. 1003 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 Augu st 1999, DSR 1999:III, p. 1377 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Short Title Full Case Title and Citation 
Canada – Aircraft 
(Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, 
adopted 4 August 2000, DSR 2000:IX, p. 4299 
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 449 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 23 October 
2002, DSR 2002:VIII, p. 3045 (Corr. 1, DSR 2006:XII, p. 5473) 
Chile – Price Band System 
(Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products  – Recourse to Article 21.5 of the DSU 
by Argentina , WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 
12 January 2009, DSR 2009:I, p. 3 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publ ications and Audiovisual Entertainment 
Products , WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, p. 3 
China – Rare Earths Appellate Body Reports, China – Measures Related to the Exportation of Rare 
Earths, Tungsten, and Molybdenum , WT/DS431/AB/R / WT/DS432/AB/R / 
WT/DS433/AB/R, adopted 29 August 2014 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535 
Dominican Republic – Import 
and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 19 May 
2005, DSR 2005:XV, p. 7367 
EC – Approval and Marketing 
of Biotech Products Panel Reports, European Communities – Measures  Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R, Add.1 to Add.9 and Corr.1 / 
WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847 
EC – Asbestos Appellate Body Report, European Communities – Meas ures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, p. 3243 
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, p. 591 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from In dia – Recourse to Article 21.5 of the 
DSU by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
p. 965 
EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT /DS283/AB/R, adopted 19 May 2005, 
DSR 2005:XIII, p. 6365 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or  Steel Fasteners from China , WT/DS397/AB/R, 
adopted 28 July 2011, DSR 2 011:VII, p. 3995 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, p. 2031 
EC – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 Octo ber 2002, DSR 2002:VIII, p. 3359 
EC – Sardines Panel Report, European Communities – Trad e Description of Sardines , 
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by 
Appellate Body Report WT/DS 231/AB/R, DSR 2002:VIII, p. 3451 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Short Title Full Case Title and Citation 
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R / 
WT/DS401/AB/R, adopted 18 June 2014 
EC – Seal Products Panel Reports, European Communities – Measures  Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R and Add.1 / WT/DS401/R and 
Add.1, adopted 18 June 2014, as modified by Appellate Body Reports 
WT/DS400/AB/R / WT/DS401/AB/R 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, p. 2613 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States  
– Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011, DSR 2011:I, p. 7 
Japan – Agricultural 
Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277 
Japan – Alcoholic 
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391 
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report WT/DS245/AB/R, DSR 2003:IX, p. 4481 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted 
17 December 2007, DSR 2007:VII, p. 2703 
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R, 
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguar d Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, p. 3 
Korea – Various Measures on 
Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 
2001, DSR 2001:I, p. 5 
Philippines – Distilled Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits , 
WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012, DSR 
2012:VIII, p. 4163 
Thailand – Cigarettes 
(Philippines) Appellate Body Report, Thailand – Customs and Fiscal  Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, 
p. 2203 
US – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 24 April 2012, DSR 2012: 
XI, p. 5751 
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R, adopted 24 April 2012, as modified by 
Appellate Body Report WT/DS406/AB/R, DSR 2012: XI, p. 5865 
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations in 
the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 2008, 
DSR 2008:X, p. 3507 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Short Title Full Case Title and Citation 
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the EC – 
Hormones Dispute , WT/DS320/R and Add.1 to Add.7, adopted 14 November 
2008, as modified by Appellate Body Report WT/DS320/AB/R, DSR 2008:XI, 
p. 3891 
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 
2012, DSR 2012:V, p. 2449 
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified 
by Appellate Body Reports WT/DS 384/AB/R / WT/DS386/AB/R, DSR 2012:VI, 
p. 2745 
US – COOL 
(Article 21.3(c)) Award of the Arbitrator, United States – Certain Country of Origin Labelling 
(COOL) Requirements  – Arbitration under Article 21.3(c) of the DSU , 
WT/DS384/24, WT/DS386/23, 4 Dece mber 2012, DSR 2012:XIII, p. 7173 
US – COOL 
(Article 21.5 – Canada and 
Mexico) Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements – Recourse to Article 21.5 of the DSU by Canada and Mexico , 
WT/DS384/RW and Add.1 / WT/DS386/RW and Add.1, circulated to WTO 
Members 20 October 2014  
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopte d 20 March 2000, DSR 2000:III, 
p. 1619 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3 
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Me at from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012, DSR 
2012:I, p. 7 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, p. 589 
US – Shrimp Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, p. 2755 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Ca nada – Recourse to Article 21.5 of 
the DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1, 
DSR 2006:XI, p. 4865 
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R, adopted 
13 June 2012, DSR 2012:IV, p. 1837 
US – Upland Cotton 
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse 
to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 20 June 
2008, DSR 2008:III, p. 809 
US – Wheat Gluten Appellate Body Report, United States – Definitive  Safeguard Measures on 
Imports of Wheat Gluten fro m the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, p. 717 
US – Wool Shirts and 
Blouses Appellate Body Report, United States – Measure A ffecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 WORLD TRADE ORGANIZATION  
APPELLATE  BODY 
  
United States – Certai n Country of Origin 
Labelling (COOL) Requirements  
Recourse to Article 21.5 of the DSU by Canada 
and Mexico 
 
United States, Appellant/Appellee  
Canada, Other Appellant/Appellee  
Mexico, Other Appellant/Appellee  
 
Australia, Third Participant  
Brazil, Third Participant  
Canada, Third Participant1 
China, Third Participant  
Colombia, Third Participant  
European Union, Third Participant 
Guatemala, Third Participant  
India, Third Participant  
Japan, Third Participant  
Korea, Third Participant  
Mexico, Third Participant2 
New Zealand, Third Participant  AB-2014-10 
 Appellate Body Division:  
 
Ramírez-Hernández, Presiding Member Chang, Member Van den Bossche, Member 
 
 
1  INTRODUCTION 
1.1.  The United States, Canada, and Mexico each appeals certain issues of law and legal 
interpretations developed in the Panel Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements – Recourse to Article 21.5 of the DSU by Canada and Mexico3 (Panel 
Reports). The Panel was established pursuant to Article 21.5 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU) to consider challenges by Canada and 
Mexico (the complainants) of measures taken by the United States to comply with the 
recommendations and rulings of the Dispute Settlem ent Body (DSB) in the original proceedings in 
US – COOL (DS384 and DS386).4 
1.2.  These disputes concern country of origin la belling (COOL) of meat products. The products at 
issue are imported Canadian cattle and hogs and imported Mexican cattle, which are used in the United States to produce beef and pork.
5 In the original proceedings, the Appellate Body upheld 
the panel's finding under Article 2.1 of the Agreement on Technical Barriers to Trade 
(TBT Agreement) that the "original COOL measure"6 modified the conditions of competition in the 
US market to the detriment of imported livestock by  creating an incentive in favour of processing 
exclusively domestic livestock and a disincentive against handling imported livestock. Furthermore, 
the Appellate Body upheld the original panel's ultimate conclusion that the original COOL measure 
was inconsistent with Article 2.1 of the TBT Agreement because it accorded less favourable 
                                               
1 In DS386. 
2 In DS384. 
3 WT/DS384/RW and WT/DS386/RW, 20 October 2014. The Panel issued its findings in the form of a 
single document containing two separate reports. Th e document comprises common sections containing the 
cover page, table of contents, and sections 1 to 7, and separate conclusions and recommendations in respect of the dispute initiated by Canada and of the disput e initiated by Mexico. (See Panel Reports, para. 1.14) 
4 The recommendations and rulings of the DSB result ed from the adoption, on 23 July 2012, by the DSB 
of the Appellate Body reports, WT/DS384/AB/R / WT/DS386/AB/R, and the pane l reports, WT/DS384/R / 
WT/DS386/R, as modified, in US – COOL . In the present Reports, we refer to the panel that considered the 
original complaints brought by Canada and Mexico as th e "original panel" and to its reports as the "original 
panel reports". 
5 Panel Reports, para. 2.2. 
6 In the present Reports, we refer to the COOL statute together with the 2009 Final Rule (AMS) as the 
"original COOL measure" (see infra, para. 1.7). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 12 - 
 
 treatment to imported livestock than to like domestic livestock.7 Moreover, the Appellate Body 
reversed the panel's finding that the original COOL measure was inconsistent with Article 2.2 of the TBT Agreement. The Appellate Body found that  the panel properly identified the legitimate 
objective of the original COOL measure as being "to provide consumer information on origin".
8 
However, it concluded that the panel had erred in its interpretation and application of Article 2.2 in 
finding the original COOL measure to be inconsistent with Article 2.2 of the TBT Agreement. Accordingly, the Appellate Body reversed the panel's finding that "the COOL measure does not 
fulfil the identified objective within the meaning of  Article 2.2 because it fails to convey meaningful 
origin information to consumers."
9 Given the lack of sufficient undisputed facts on the panel record 
or factual findings by the original panel, the Appellate Body was unable to complete the legal analysis to determine whether the original COOL measure was more trade restrictive than 
necessary to fulfil a legitimate objective.
10 
1.3.  The Appellate Body made no findings with respect to the complainants' conditional claims 
under Articles III:4 and XXIII:1(b) of the General Agreement on Tariffs and Trade 1994 
(GATT 1994), because the conditions on which those appeals were based, namely, the reversal of 
the original panel's findings under Article 2.1 of the TBT Agreement, were not satisfied.11 
1.4.  The Appellate Body recommended that the DSB request the United States to bring its 
measures into conformity with its obligations under the GATT 1994 and the TBT Agreement.12 
On 23 July 2012, the DSB adopted the original pa nel and Appellate Body reports. At the meeting 
of the DSB held on 31 August 2012, the United States signalled its intention to comply with the recommendations and rulings of the DSB, and stated  that it would need a reasonable period of 
time in which to do so. The reasonable period of  time for implementation was determined through 
arbitration pursuant to Article 21.3(c) of the DSU to be ten months, expiring on 23 May 2013.
13 
1.5.  Following the original proceedings, the Agricultural Marketing Service (AMS) of the 
US Department of Agriculture (USDA) issued a final rule, effective 23 May 2013, to make changes 
to the labelling provisions for muscle-cut covered commodities and certain other modifications. The Article 21.5 Panel found that this rule is the only regulatory change identified by the parties in the 
compliance proceedings as the "measure taken to comply" by the United States with the DSB's 
recommendations and rulings in the original disputes.
14 
1.6.  On 24 May 2013, the United States informed the DSB that, by virtue of a final rule issued by 
the USDA making certain changes to the COOL re quirements, the United States had complied with 
the DSB's recommendations and rulings in these disputes.15 Canada and Mexico, however, 
considered that the "amended COOL measure"16 did not bring the United States into compliance 
with the recommendations and rulings of the DSB.17 Accordingly, on 19 August 2013, Canada and 
Mexico requested the establishment of a panel pursuant to Articles 6 and 21.5 of the DSU, 
Article 14 of the TBT Agreement,  and Article XXIII of the GATT 1994.18 The Panel was established 
by the DSB on 25 September 2013.19 
                                               
7 Appellate Body Report (DS384), US – COOL , para. 496(a); Appellate Body Report (DS386),  
US – COOL , para. 496(a). 
8 Appellate Body Reports , US – COOL , para. 433. 
9 Appellate Body Report (DS384), US – COOL , para. 496(b)(iv) and (v); Appellate Body Report (DS386), 
US – COOL , para. 496(b)(iv) and (v) . 
10 Appellate Body Report (DS384), US – COOL , para. 496(b); Appellate Body Report (DS386),  
US – COOL , para. 496(b). 
11 Appellate Body Report (DS384), US – COOL , para. 496(c); Appellate Body Report (DS386),  
US – COOL , para. 496(c). 
12 Appellate Body Report (DS384), US – COOL , para. 497; Appellate Body Report (DS386), US – COOL , 
para. 497. 
13 Award of the Arbitrator, US – COOL (Article 21.3(c)) , para. 123. 
14 Panel Reports, para. 7.8. 
15 WT/DSB/M/332, p. 22. 
16 In the present Reports, we refer to the COOL statute together with the 2009 Final Rule (AMS) and the 
2013 Final Rule, and any modifications or amendments thereto, as the "amended COOL measure" (see infra, 
para. 1.7). 
17 WT/DSB/M/332, p. 22. 
18 WT/DS384/26 (Canada); WT/DS386/25 (Mexico). 
19 Panel Reports, para. 1.4. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 1.7.  In their panel requests, Canada and Mexico identified the amended COOL measure, 
comprising the following instruments, as the subject of their claims: 
a. the COOL statute – Agricultural Marketing Act of 194620, as amended by the Farm 
Security and Rural Investment Act of 200221 (2002 Farm Bill) and the Food, 
Conservation, and Energy Act of 200822 (2008 Farm Bill); 
b. the 2009 Final Rule (AMS) – Final Rule on Mandatory Country of Origin Labeling of Beef, 
Pork, Lamb, Chicken, Goat Meat, Wild and Farm-Raised Fish and Shellfish, Perishable 
Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts23; 
c. the 2013 Final Rule – Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, 
Lamb, Chicken, Goat Meat, Wild and Farm-Raised Fish and Shellfish, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts
24; and 
d. any modifications or amendments to the in struments listed in a. through c. above, 
including any further implementing guidance, directives, policy announcements, or any other document issued in relation to these instruments. 
1.8.  Canada and Mexico requested the Article 21.5 Panel to find that the United States has failed 
to comply with the recommendations and rulings adopted by the DSB on 23 July 2012 on the basis 
that the amended COOL measure violates Arti cles 2.1 and 2.2 of the TBT Agreement and 
Article III:4 of the GATT 1994. Furthermore, Canada and Mexico requested the Panel to find that 
the amended COOL measure nullifies or impairs benefits accruing to Canada and Mexico within the meaning of Article XXIII:1(b) of the GATT 1994. 
1.9.  The Panel Reports were circulated to Members of the World Trade Organization (WTO) on 
20 October 2014. In its Reports, the Panel made procedural rulings regarding: (i) additional 
procedures for the protection of business confidenti al information (BCI); (ii) procedures for an oral 
hearing open to public observation; and (iii) enhanced third party rights.
25  
1.10.  With regard to Canada's and Mexico's claims under the TBT Agreement, the Panel 
concluded26 that: 
a. the amended COOL measure is a "technical regulation" within the meaning of Annex 1.1 
to the TBT Agreement; 
b. the amended COOL measure violates Article 2.1 because it accords Canadian and 
Mexican livestock treatment less favourable than that accorded to like domestic livestock, in particular, because the amended COOL measure increases the original COOL 
measure's detrimental impact on the competitive opportunities of Canadian and Mexican 
livestock, and this detrimental impact does not stem exclusively from legitimate regulatory distinctions; and 
c. Canada and Mexico had not made a prima facie case that the amended COOL measure is 
more trade restrictive than necessary within the meaning of Article 2.2 of the TBT Agreement. 
                                               
20 60 Stat. 1087, United States Code , Title 7, Section 1621 et seq., as amended (Panel Exhibit CDA-3). 
21 Public Law No. 107-171, Section 10816, 116 Stat. 134 (Panel Exhibit CDA-4). 
22 Public Law No. 110-234, Section 11002, 122 Stat. 923 (Panel Exhibit CDA-5). 
23 United States Federal Register , Vol. 74, No. 10 (15 January 2009), pp. 2658-2707 (Panel Exhibits 
CDA-2 and MEX-12). 
24 United States Federal Register , Vol. 78, No. 101 (24 May 2013), pp. 31367-31385 (Panel Exhibits 
CDA-1 and MEX-3). 
25 Panel Reports, paras. 1.10, 1.11, 1.15, and 1.16. 
26 Canada Panel Report (DS384), para. 8.3; Mexico Panel Report (DS386), para. 8.3. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 14 - 
 
 1.11.  Furthermore, regarding Canada's and Mexico's claims under the GATT 1994, the Panel 
concluded that the amended COOL measure violates Article III:4 because it has a detrimental impact on the competitive opportunities of imported livestock and, thus, accords less favourable treatment than that accorded to like domestic live stock, within the meaning of Article III:4 of the 
GATT 1994.
27 
1.12.  Finally, in the light of these findings of vi olation, the Panel exercised judicial economy with 
regard to the non-violation claims under Article XXIII:1(b) of the GATT 1994 raised by Canada and 
Mexico.28  
1.13.  On 28 November 2014, the United States notified the DSB, pursuant to Articles 16.4 and 17 
of the DSU, of its intention to appeal certain issues of law covered in the Panel Reports and certain legal interpretations developed by the Panel, and filed a Notice of Appeal
29 pursuant to Rule 20 of 
the Working Procedures for Appellate Review30 (Working Procedures). The notification was 
circulated and the Notice of Appeal filed in advance of a special meeting of the DSB scheduled for the same day to consider these Panel Reports. At the request of Canada and Mexico, the special 
meeting of the DSB proceeded as scheduled to co nsider these Panel Reports, notwithstanding the 
filing of a Notice of Appeal by the United States  earlier in the day. This meeting was subsequently 
suspended in order to facilitate informal consultations about a joint request to the Appellate Body 
by Canada, Mexico, and the United States to modify the time-periods for filing written submissions 
in this appeal.  
1.14.  Such a request was filed later on the same  day with the Appellate Body. The participants 
jointly submitted that "exceptional circumstances" present in these disputes meant that strict 
adherence to the regular deadlines for filing submissions would result in "manifest unfairness" 
within the meaning of Rule 16(2) of the Workin g Procedures. In particular, the participants 
submitted that the time-period set out in Rule 21 would not afford the United States as appellant 
sufficient time to present its arguments, and that this would impede the development of 
arguments in subsequent submissions, thereby im peding the orderly conduct of the appeal. In 
support of their request, the participants pointed to resource constraints due to concurrent work 
on other pending proceedings, as well as the constraints imposed by the contemporaneous holiday 
period, the multiple, complex issues at stake in these disputes, and the present workload of the 
Appellate Body. 
1.15.  On the same day, the Presiding Member of the Appellate Body Division hearing this appeal 
invited the third parties to comment on the joint request of the participants. In order to ensure 
orderly procedure in the conduct of the appeal in accordance with Rule 16(1) of the Working 
Procedures, the Division suspended the deadlines for the filing of any Notice of Other Appeal, and 
of written submissions, until the issuance of a ru ling on the joint request for the extension of the 
deadlines for filing submissions.  
1.16.  Brazil, the European Union, India, and Japan submitted written comments. All of them 
considered it to be within the discretion of the Appellate Body to modify deadlines for filing written 
submissions. No third participant expressed objections to the extension of deadlines as requested by the participants. Brazil expressed no view as to whether the request met the conditions set out in Rule 16(2) of the Working Procedures, wherea s the European Union and Japan submitted that 
the factors present in this case could give rise to "exceptional circumstances", without such factors 
necessarily setting a precedent for Rule 16(2) or being categorically accepted as constituting "exceptional circumstances" in future cases. Indi a submitted that resource constraints, especially 
when experienced by developing countries, could constitute "exceptional circumstances" for 
modifying time-periods, and that what is considered to constitute "exceptional circumstances" in this case could be relevant factors in future a ppeals. Japan expected that, if the request of the 
participants was granted, the time-period for fili ng third participants' submissions would also be 
extended. 
                                               
27 Canada Panel Report (DS384), para. 8.4; Mexico Panel Report (DS386), para. 8.4. 
28 Canada Panel Report (DS384), para. 8.4; Mexico Panel Report (DS386), para. 8.4. 
29 WT/DS384/29, WT/DS386/28 (attached as Annex 1 to these Reports). 
30 WT/AB/WP/6, 16 August 2010. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 1.17.  On 2 December 2014, the Division issued a Procedural Ruling extending the time-periods for 
filing written submissions in this appeal. These time-periods are set out in the Procedural Ruling, which is attached as Annex 4 to these Reports.
31 In accordance with these time-periods, the 
United States filed an appellant's submission on 5 December 2014.32  
1.18.   On 11 December 2014, the Division received a letter from Australia requesting that the 
deadline for filing third participants' submissions be further extended. Australia noted that, although the time-period between the filing of the appellees' submissions and the filing of the third 
participants' submissions set out in the Procedural Ruling of 2 December 2014 was in line with the 
standard time-periods set out in the Working Procedures, in this particular case this three-day period ran over a weekend, providing the thir d participants with only one working day to 
incorporate reactions to the appellees' submissions into their third participants' submissions. 
Australia further explained that the challenges it faced in preparing its submission were 
exacerbated by the decreased staffing capacity  during the peak summer holiday period in 
Australia.  
1.19.  On 12 December 2014, the Division invited the participants and the other third participants 
to comment on Australia's request. Brazil, Colombia, and New Zealand supported Australia's request that the deadline for filing third particip ants' submissions be extended. Canada and the 
United States expressed no objection to an extension of the deadline. Mexico submitted that it had 
no objection if the timetable for the subsequent  stages of the appellate proceedings was not 
affected and if the extension was granted to all third participants. Japan stated that it had no specific comment on Australia's request. 
1.20.  On the same day, in keeping with the time-periods set out in the Procedural Ruling of 
2 December 2014, Canada and Mexico each notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered in the respective Panel Report and 
certain legal interpretations developed by the Panel, and each filed a Notice of Other Appeal
33 and 
an other appellant's submission pursuant to Rule 23 of the Working Procedures. 
1.21.  On 17 December 2014, the Division issued a Procedural Ruling further extending the 
deadline for filing third participants' submissions in this appeal to 15 January 2015. The Procedural 
Ruling is attached as Annex 5 to these Reports. 
1.22.  On 18 December 2014, the Division received a joint communication from the participants. 
In that communication, Canada and the United States requested that the Appellate Body allow 
observation by the public at the oral hearing of the participants' answers to questions as well as 
statements of those third participants who agree to public observation in this appeal. This request was made on the understanding that any information that was designated as confidential in the 
documents filed by any party in the Panel proceedings would be adequately protected in the 
course of the oral hearing before the Appellate Body. For its part, Mexico did not object to allowing observation by the public of the oral hearing, but maintained that its position in these proceedings 
was without prejudice to its systemic views on the matter. 
1.23.  On 19 December 2014, the Division invited the third participants to comment on the request 
of Canada and the United States by 6 January 2015.  By that deadline, only Japan had responded, 
indicating that it had no objection to the request.
34 On 7 January 2015, the Division issued a 
Procedural Ruling allowing public observation of the oral hearing and adopting additional 
procedures for the conduct of the hearing. The Procedural Ruling is attached as Annex 6 to these Reports. 
                                               
31 In this Ruling, the date for filing Notice(s) of Other Appeal and other appellants' submissions was set 
for 12 December 2014, the date for filing appellee's submissions for 9 January 2015, and the date for filing third participants' submissions for 12 January 2015. 
32 Pursuant to Rule 21 of the Working Procedures. 
33 WT/DS384/30 (Canada) (attached as Annex 2 to these Reports); WT/DS386/29 (Mexico) (attached as 
Annex 3 to these Reports). 
34 In addition, Brazil and Australia  responded in the afternoon of 6 January 2015 that they had no 
objection to this request. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 16 - 
 
 1.24.  In accordance with the time-periods set out in the Procedural Ruling of 2 December 2014, 
Canada, Mexico, and the United States each fi led an appellee's submission on 9 January 2015.35 
In keeping with the time-period set out in the Procedural Ruling of 17 December 2014, Australia, Brazil, China, Colombia, the European Union, Japan, and New Zealand each filed a third 
participant's submission on 15 January 2015.
36 Guatemala37 and Korea38 each notified its intention 
to appear at the oral hearing as a third participant, and India notified that it would not be appearing at the oral hearing.  
1.25.  The oral hearing in this appeal was held on 16 and 17 February 2015. Public observation 
took place via simultaneous closed-circuit television broadcast to a separate room. Transmission was turned off during statements made by those third participants that had indicated their wish to maintain the confidentiality of their submissions. The participants and third participants made oral 
statements and responded to questions posed by  the Members of the Appellate Body Division 
hearing the appeal. 
1.26.  By letter dated 26 January 2015
39, the Chair of the Appellate Body notified the Chair of the 
DSB that the Appellate Body would not be able to circulate its Reports within the 60-day period 
pursuant to Article 17.5 of the DSU, or within th e 90-day period pursuant to the same provision. 
The Chair of the Appellate Body explained that th is was due to a number of factors, including the 
current workload of the Appellate Body, the number and complexity of the issues raised in this 
appeal, and the demands that this placed on the WTO Secretariat's translation services, as well as the extensions of the time-periods for filing wr itten submissions granted at the request of the 
participants and third participants, the intervening year-end closure of the WTO Secretariat, and 
the scheduling difficulties arising from overlap in the composition of Divisions hearing appeals 
concurrently pending before the Appellate Body. The Chair of the Appellate Body explained that 
the date of circulation of the Reports in this appeal would be communicated to the participants and 
third participants shortly after the oral hearing.  
1.27.  By letter dated 20 February 2015, Canada, Mexico, and the United States requested to meet 
with the Appellate Body to discuss the date by wh ich the Appellate Body intended to circulate its 
Reports. The participants stated that they would consider any reports circulated within the 
timeframe communicated to them during this meeting to have been circulated in accordance with Article 17.5 of the DSU. By letter dated 2 March 20 15, the Division informed the participants that 
the Appellate Body Reports in this appeal would be circulated no later than 18 May 2015, and 
explained that the Appellate Body remained intere sted in exploring with the WTO Membership the 
issues addressed in the Communication from th e Appellate Body of 30 May 2013 entitled, 
The Workload of the Appellate Body .
40 
2  ARGUMENTS OF THE PARTICIP ANTS AND THIRD PARTICIPANTS 
2.1  Claims of error by th e United States – Appellant 
2.1.1  Article 2.1 of the TBT Agreement 
2.1.  The United States requests the Appellate Body to reverse the Panel's conclusion that the 
amended COOL measure is inconsistent with Articl e 2.1 of the TBT Agreement. In particular, the 
United States requests the Appellate Body to fi nd that the Panel erred in concluding that the 
detrimental impact of the amended COOL meas ure on imported livestock does not stem 
exclusively from legitimate regulatory distinctions. According to the United States, this conclusion 
of the Panel is based on three intermediate findings that are in error, namely: (i) that the amended COOL measure "entails an increased reco rdkeeping burden"; (ii) that Labels B and C 
have a "potential for label inaccuracy"; and (iii) that the amended COOL measure "continues to 
exempt a large proportion of muscle cuts" from its scope.
41  
                                               
35 Pursuant to Rules 16, 22, and 23(4) of the Working Procedures. 
36 Pursuant to Rules 16 and 24(1) of the Working Procedures. 
37 On 15 January 2015, pursuant to Rule 24(2) of the Working Procedures. 
38 On 11 February 2015, pursuant to Rule 24(4) of the Working Procedures. 
39 Contained in document WT/DS384/31, WT/DS386/30. 
40 See Appellate Body Annual Report for 2013 , Annex 1.  
41 United States' appellant's submission, para. 53 (quoting Panel Reports, para. 7.282). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.1.1.1  The increased recordkeeping burd en entailed by the amended COOL measure 
2.2.  The United States appeals the Panel's conclu sion that the detrimental impact of the amended 
COOL measure does not stem exclusively from legi timate regulatory distinctions, and alleges that 
the Panel erred in finding that this measure, as compared to the original COOL measure, entails an 
increased recordkeeping burden on upstream producers of livestock. The United States advances 
three claims of error in this regard.  
2.3.  First, the United States claims that the Panel erred in considering that its finding concerning 
the increased recordkeeping burden entailed by  the amended COOL measure constitutes an 
independent basis for concluding that the detrimental impact of this measure does not stem exclusively from legitimate regulatory distinctions . The United States submits that, to the extent 
that the recordkeeping burden entailed by the am ended COOL measure is at all relevant to the 
analysis of the legitimacy of regulatory distinctions under Article 2.1, it is relevant only to the 
question of whether there is a "disconnect" be tween, on the one hand, the amount of origin 
information collected by producers and processors of livestock and, on the other hand, the amount 
of origin information provided to consumers through mandatory labels. The information collected 
must be so disproportionate to the information provided that the collection of the information 
cannot be explained in the first place. In order to make such a finding, the Panel would have 
needed to examine what information is collected vis-à-vis what is provided by the labels that are 
actually used in the marketplace. The United States submits that the Panel failed to undertake this inquiry and, therefore, the Panel's reliance on any increase in the recordkeeping burden entailed by the amended COOL measure as a basis for its ultimate conclusion under Article 2.1 is in error. 
2.4.  Second, the United States asserts that the Panel erred in its analysis of the impact of 
point-of-production labelling, and the impact of the elimination of the country order flexibility, on the recordkeeping burden entailed by the amended C OOL measure. The United States clarifies that 
it does not dispute that the elimination of the commingling flexibility that had been available under 
the original COOL measure increased segregation for those companies that had actually been commingling. However, the United States disputes  that the introduction of point-of-production 
labelling and the elimination of the country order flexibility had a similar impact on segregation 
and recordkeeping.  
2.5.   As regards the Panel's finding that point-of-production labelling increases the recordkeeping 
burden in practice for US-slaughtered livestock, the United States claims that this finding is in 
error because it is not based on an examination of  the actual trade in livestock between the three 
parties to the disputes but, instead, on "incorrect" hypothetical transactions.
42 More specifically, 
contrary to the various scenarios posited by the Pane l, there is no evidence of trade in live animals 
between Canada and Mexico that would result in the "multiple origin" labels on which the Panel 
based its findings.43 The lack of such evidence is explained by the fact that it is highly improbable, 
if not inconceivable, that the prices for energy, feed, and livestock would ever align such that it 
would be profitable to export animals between Canada and Mexico even once, much less twice, 
before exporting to the United States, as th e Panel's hypothetical scenarios envision. The 
United States submits that it is, thus, clear that the Panel's finding that point-of-production labelling increases the recordkeeping burden in practice for US-slaughtered livestock has no basis 
and, therefore, reliance on such a finding to  support a conclusion on detrimental impact 
constitutes legal error. The United States emphasizes that the scenarios that reflect actual livestock trade between the parties proves the opposite of what the Panel found, namely, that 
point-of-production labels do not increase the recordkeeping burden. Noting that in Canada – 
Periodicals  the Appellate Body reversed the panel's "like product" analysis in the light of its 
reliance on an incorrect hypothetical, the United States submits that, in the present disputes, the 
Panel's analysis is similarly flawed due to its reliance on incorrect hypotheticals.
44 
2.6.  Third, the United States claims that the Panel erred in finding that the removal of the country 
order flexibility increases the recordkeeping burden on producers and processors of livestock, and 
that this supports a conclusion that the detrimental impact of the amended COOL measure does 
not stem exclusively from legitimate regulatory distinctions. According to the United States, the 
                                               
42 United States' appellant's submission, para. 117. 
43 United States' appellant's submission, para. 119. 
44 United States' appellant's submission, para. 123 (referring to Appellate Body Report, Canada – 
Periodicals , pp. 20-23, DSR 1997:I, pp. 465-468). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 removal of the country order flexibility creates more distinct labels, but does not alter the 
recordkeeping burden entailed by the amended COOL measure because, under the original COOL measure, different categories of muscle cuts already had different records. The United States explains that, under the original COOL meas ure, the country order flexibility allowed 
non-commingled Category B and C muscle cuts to have labels that could look the same in practice, 
i.e. Labels B and C could both read "Product of Canada, U.S." By contrast, those same muscle cuts are labelled differently under the amended COOL measure – i.e. Category B muscle cuts are 
labelled "Born in Canada, Raised and Slaughtered in the U.S.," while Category C muscle cuts are 
now labelled "Born and Raised in Canada, Slaughtered in the U.S." According to the United States, the fact that there are now two labels – where before there was one – does not mean that the 
recordkeeping burden has increased under the amended COOL measure, since the records 
required under the original COOL measure for Category B muscle cuts must have been able to 
substantiate that they were produced from an animal that was born in Canada and raised and 
slaughtered in the United States. Similarly, the records required for Category C muscle cuts must 
have been able to substantiate that they were produced from an animal that was born in Canada, 
raised in Canada, and exported to the United States for immediate slaughter. Thus, while the 
removal of the country order flexibility increases the distinct number of labels on non-commingled 
muscle cuts, it does not increase the recordk eeping burden. The United States submits that, 
because the Panel made no findings that the elimination of the country order flexibility changed the records required to substantiate Category B and C origin claims, the Panel erred in finding that the removal of this flexibility increases recordkeeping, and that this finding supports a conclusion 
that the detrimental impact of the amended COOL  measure on imported livestock does not stem 
exclusively from legitimate regulatory distinctions. 
2.1.1.2  The accuracy of labels pres cribed by the amended COOL measure 
2.7.  The United States requests the Appellate Body to find that the Panel erred in finding that 
Labels B and C under the amended COOL measure convey potentially inaccurate information, and in finding that this supports the Panel's ultimate conclusion that the detrimental impact of that 
measure does not stem exclusively from legitima te regulatory distinctions. The United States 
advances two grounds for its claim.  
2.8.  First, the United States claims that the Panel's finding that Labels B and C are potentially 
inaccurate is in error because it is based on incorrect hypothetical transactions that do not reflect 
actual trade in livestock among the three parties to  the disputes. The United States explains that 
the Panel's analysis of label accuracy turns on how information relating to where an animal was "raised" is communicated on Labels B and C in a number of livestock trade scenarios. According to 
the United States, some of these scenarios reflect actual trade in livestock among the three parties 
to the disputes, and others are purely hypothetical. As regards Label B, the Panel found that this label is potentially inaccurate in two scenarios: (i) where an animal had a "single foreign origin", 
e.g. born in either Canada or Mexico and then ex ported to the United States for further raising and 
slaughter; and (ii) where an animal had "multiple foreign origins", e.g. born in Mexico, exported to Canada for further raising, then exported to the United States for further raising and slaughter. As regards Label C, the Panel found that, although this label is accurate in practice, it is potentially 
inaccurate when affixed to muscle cuts produced from animals that have been the subject of at 
least one, and maybe two, transactions between Mexico and Canada, prior to being exported to 
the United States for immediate slaughter.
45  
2.9.  The United States submits that, in determining whether Labels B and C are potentially 
inaccurate, the Panel treated each of the scenarios above as being equally persuasive, without regard for the improbability of the various scenarios. As regards Label B, the Panel treated the 
scenario where an animal was born in Canada and exported to the United States for further raising 
and slaughter – a scenario that the United States admits occurs – on equal terms with the scenario where an animal was born in Canada, exported to Mexico for raising, and then exported to the United States for further raising and slaughter – a scenario that the United States alleges does not 
occur. The United States claims that the Panel erred in this regard.  
2.10.  The United States further contends that, because the claim before the Panel was one of 
de facto  discrimination under Article 2.1 of the TB T Agreement, the Panel was precluded from 
relying on hypothetical transactions that do not reflect actual trade in livestock among the three 
                                               
45 United States' appellant's submission, para. 152. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 parties to the disputes. The United States submits in this regard that, in a de facto  case, a panel 
must base its finding of detrimental impact on the effect of the measure in the marketplace – 
"(i.e., the 'facts')".46 Yet, the Panel drew its conclusion concerning the accuracy of labels under the 
amended COOL measure on the basis of hypothetical scenarios that have no basis in the factual 
circumstances of the US market. The United States, thus, submits that, as was the case in Canada 
– Periodicals , the Panel's reliance on such hypotheticals lacks "proper reasoning based on 
inadequate factual analysis" and, as such, constitutes legal error.47  
2.11.   Second, the United States claims that th e Panel erred in considering that its finding that 
Labels B and C are potentially inaccurate supports its ultimate conclusion under Article 2.1 of the TBT Agreement. The United States submits, in this regard, that the Panel failed to make a determination of whether the labels prescribed by  the amended COOL measure are even handed in 
their design and application, "including" whether a "disconnect" exists between, on the one hand, 
the origin information required to be kept by pr oducers and processors of livestock and, on the 
other hand, the origin information that is ultimately conveyed to consumers through the labels. 
The United States explains that, pursuant to the DSB's recommendations and rulings in the 
original disputes, the question of whether the de trimental impact on imported livestock reflects 
discrimination hinges on a determination of whether the relevant regulatory distinctions – i.e. the 
three categories of muscle cuts derived from US-slaughtered livestock and their corresponding 
labels – are designed and applied in an even-han ded manner. The United States submits that the 
Panel erred by failing to make this determination.  
2.12.  The United States asserts that the Panel's criticism of Labels B and C is based on its finding 
that, by permitting only the United States to be listed as the country in which an animal was 
raised, these labels could be considered "inaccurate" in circumstances where an animal was, in fact, raised in multiple countries.
48 The United States notes that the Panel appears to criticize the 
COOL requirements because they do not requir e the labels prescribed by the amended COOL 
measure to provide as much detail as the Panel considered optimal, and asserts that it is not the prerogative of panels to determine the level at which Members should seek to fulfil their legitimate 
objectives. The United States adds that the Panel's finding that Labels B and C are potentially 
inaccurate because they permit the omission of information regarding the countries in which an animal was raised cannot provide a basis for a fi nding that the COOL requirements are not even-
handed.
49 In this regard, the inclusion of information with respect to all of the countries in which 
an animal was raised would not provide additional origin information because it is understood that 
an animal born in a country other than the United States will have been raised at least a portion of its life in that other country. The United States argues that the Panel failed to provide a reason as 
to why consumers would understand this differently.  
2.13.  The United States asserts that the "central criticism" of the Appellate Body with regard to 
the original COOL measure was that the origin information provided by Labels B and C was "far 
less detailed and accurate than the information required to be tracked and transmitted by … 
producers and processors" of livestock that the tracking and transmission of such information "[could not] be explained by the need to convey  ... [origin] information" on meat products to 
consumers.
50 The United States contends that the compliance Panel adopted a different analytical 
framework from that of the Appellate Body in th e original disputes, because the Panel failed to 
address the question of whether there is a "disconnect" between the information required to be collected by producers and processors of livestoc k, and the information ultimately conveyed to 
consumers by the labels prescribed by the amended COOL measure. In this regard, although the 
Panel criticized the amended COOL measure on the basis of the omission of countries of raising 
where an animal was raised in multiple countries, the Panel did not make a finding that the 
amended COOL measure requires that producers an d processors of livestock track and transmit 
any information that is not provided by the labels. As such, the Panel erred, as a matter of law, by finding that the informational "disconnect" that the Appellate Body found to exist under the original COOL measure continues to exist under the amended COOL measure.  
                                               
46 United States' appellant's submission, para. 158. 
47 United States' appellant's submission, para. 159 (quoting Appellate Body Report, Canada – Periodicals  
p. 22, DSR 1997:I, p. 467). 
48 United States' appellant's submission, para. 165 (quoting Panel Reports, para. 7.243). 
49 United States' appellant's submission, para. 169. 
50 United States' appellant's submission, para. 172 (quoting Appellate Body Reports, US – COOL , 
para. 349). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.1.1.3  The exemptions under the amended COOL measure 
2.14.  The United States requests the Appellate Bo dy to find that the Panel erred in finding that 
the scope of the exemptions under the amended C OOL measure constitutes a basis for concluding 
that the detrimental impact of that measure does not stem exclusively from legitimate regulatory 
distinctions. The three exemptions at issue preclu de the application of the COOL requirements to 
muscle-cut commodities that are: (i) used as an ingredient in a "processed food item"; (ii) prepared or served at a "food service establis hment"; or (iii) sold by entities not meeting the 
definition of the term "retailer".
51 The United States advances three main arguments in support of 
this claim of error.  
2.15.   First, the United States claims that the Panel erred in finding that the exemptions are 
relevant to the analysis of whether the detrim ental impact of the amended COOL measure stems 
exclusively from legitimate regulatory distinctions. According to the United States, only regulatory 
distinctions that account for the detrimental impact on imported products can answer the question of whether such detrimental impact reflects discrimination. The United States points out that the 
original panel had found that the exemptions under the original COOL measure were not a source 
of detrimental impact on imported livestock. Thus, the compliance Panel should not have found the exemptions relevant to its analysis of whethe r the detrimental impact of the amended COOL 
measure stems exclusively from legitimate regulatory distinctions. For the United States, the 
Panel's "legal framework" is in error, because regulatory distinctions that are not relevant fall outside the scope of the analysis under Article 2.1 of the TBT Agreement.
52  
2.16.  Second, the United States claims that, aside from the fact that the exemptions are not 
relevant to the Panel's analysis, the Panel erred in determining that they demonstrate that the 
detrimental impact of the amended COOL measure re flects discrimination prohibited by Article 2.1. 
In particular, because the Panel failed to take into account the three considerations elaborated on 
below, the Panel erred in finding that the exemptions support a conclusion that the detrimental 
impact of the amended COOL measure reflects discrimination.  
2.17.  The United States submits that the Panel failed to take account of the fact that the 
exemptions apply equally to meat derived from imported and domestic livestock, and are thus 
"perfectly even handed".53 The United States asserts that it is uncontested that neither the design, 
nor the operation, of the exemptions disadvantage Canadian and Mexican livestock exports. In this regard, these exemptions are "wholly different" from the exemptions under the measures at issue 
in US – Clove Cigarettes and EC – Seal Products .
54 The United States explains that, in US – Clove 
Cigarettes , the Appellate Body found that the exemption of menthol cigarettes from the ban on 
flavoured cigarettes was not even handed because producers of menthol cigarettes – mainly US 
producers – could take advantage of the exemption notwithstanding the fact that menthol 
cigarettes presented a risk similar to th at presented by the banned products.55 Similarly, the panel 
in EC – Seal Products  found that the indigenous community exemption was not even handed in the 
light of the fact that, while seal products from Greenland could benefit from that exemption, seal 
products from Canada could not, even though the hunts from which these seal products were derived "greatly approximated one another".
56 According to the United States, the same dynamic 
does not arise in the case of the exemptions under  the amended COOL measure. By failing to take 
this into account, the Panel erred in finding that these exemptions support a conclusion that the 
detrimental impact of the amended COOL measure reflects discrimination.  
2.18.  The United States further submits that, in its assessment of the exemptions, the Panel failed 
to take into account the "legitimate desire of Members to adjust the scope of their technical 
regulations" for cost considerations.57 As the Panel explicitly recognized, "it is not atypical for any 
kind of regulation to have exceptions in terms of  the products and entities that are subject to it" 
and that "[s]ome of such exceptions might be just ifiable for practical reasons and simply facilitate 
                                               
51 United States' appellant's submission, para. 184 (referring to Panel Reports, paras. 7.28-7.30).  
52 United States' appellant's submission, para. 201. 
53 United States' appellant's submission, para. 207. 
54 United States' appellant's submission, para. 208. 
55 United States' appellant's submission, para. 208 (referring to Appellate Body Report, US – Clove 
Cigarettes,  para. 225). 
56 United States' appellant's submission, para. 208 (referring to Panel Reports,  EC – Seal Products , 
para. 7.317). 
57 United States' appellant's submission, para. 187. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the implementation of the measure at issue without necessarily involving protectionist intent."58 
Moreover, in its analysis under Article 2.2 of the TBT Agreement, the Panel recognized that "there 
may be a variety of possible reasons unrelated to risks for exempting or treating differently certain product categories under a Member's technical regulation, such as regulatory or compliance 
costs."
59 The United States asserts that, consistent with these acknowledgements, the exemptions 
under the amended COOL measure constitute "important mechanisms that policy makers use to control costs of measures in pursuit of legitimate government objectives".
60  
2.19.  The United States explains that, while its intent is to provide consumers with accurate and 
meaningful information on the origin of the meat that they purchase, it does not intend to do so  
"at any cost".61 Accordingly, even if such information wa s, and remains, desired by consumers, the 
United States, ultimately, set a slightly lower level of fulfilment by including exemptions in the 
amended COOL measure, as is the prerogative of an y regulator. Further, the cost savings provided 
by the exemptions under the amended COOL measur e are real. In this regard, it is uncontested 
that removing these exemptions would increase recordkeeping, verification, and segregation costs 
in the United States. The United States highligh ts that it is not the only Member seeking to 
balance, on the one hand, the provision of information to consumers concerning the products that they purchase and, on the other hand, the co sts of providing such information. Thus, the 
exemptions under the amended COOL measure reflec t sound public policy, rather than arbitrary 
discrimination. 
2.20.  The United States further argues that, in its assessment of the exemptions, the Panel failed 
to take into account that, in the light of the e nhanced accuracy of the labels prescribed by the 
amended COOL measure, the recordkeeping burden entailed by that measure can now be 
explained by the need to provide origin informatio n to consumers. According to the United States, 
the scope of the exemptions under the original COOL measure further corroborated the problem 
under that measure that adequate information was not provided on Labels B and C to justify the 
recordkeeping required of producers and processors of livestock. However, under the amended COOL measure, this underlying problem has now been corrected so that more detailed and 
accurate information is provided to consumers on the labels. The United States further contends 
that, although the exemptions have not been e liminated, this alone cannot be determinative of 
whether the detrimental impact of the amende d COOL measure on imported livestock stems 
exclusively from legitimate regulatory distinctions . In the United States' view, the Panel erred by 
failing to examine whether, in the light of the more detailed and accurate information provided on 
labels to consumers, the recordkeeping burden im posed on producers and processors of livestock 
can now be explained by the need to provide origin information to consumers, notwithstanding the 
continued existence of the exemptions.  
2.21.   In addition to the enhanced accuracy of the labels prescribed by the amended COOL 
measure, the United States also considers it important to highlight that the coverage of the 
amended COOL measure is hardly limited. These two factors – the origin information provided to 
consumers (in terms of detail and accuracy) and the sheer breadth of what is sold by the tens of 
thousands of retailers covered by the amended COOL measure – provide a sound basis for the 
recordkeeping required of producers and processors of livestock in order to substantiate where an 
animal was born, raised, and slaughtered. The United States submits that the exemptions, 
therefore, do not support a finding that the de trimental impact of the amended COOL measure 
reflects discrimination.  
2.22.  The United States also challenges the Pane l's assessment of the exemptions on the ground 
that the Panel failed to undertake an evaluati on of the operation of the exemptions in the 
US market. The United States asserts that the Panel drew a conclusion that distinct distribution 
channels for the sale of meat products to exempt entities do not exist simply by repeating a 
statement of the original panel that "the ultimate disposition of a meat product is often not known at any particular stage of the production chain"
62, and a statement by the Appellate Body that 
                                               
58 United States' appellant's submission, para. 210 (quo ting Panel Reports, para. 7.275, in turn quoting 
Original Panel Reports, US – COOL , para. 7.684). 
59 United States' appellant's submission, para. 210 (quoting Panel Reports, para. 7.380). 
60 United States' appellant's submission, para. 211. (fn omitted) 
61 United States' appellant's submission, para. 212. (emphasis omitted) 
62 United States' appellant's submission, para. 233 (quo ting Panel Reports, para. 7.272, in turn quoting 
Original Panel Reports, US – COOL , para. 7.417, in turn quoting United States' response to original panel 
question No. 93, para. 16). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 "information regarding the origin of all livestock will have to be identified, tracked, and transmitted 
through the chain of production by upstream prod ucers … even though 'a considerable proportion' 
of the beef and pork derived from that livest ock will ultimately be exempt from the COOL 
requirements and therefore carry no COOL label at all."63 The United States points out that, in 
making this statement, the Appellate Body cited the statement of the original panel that "the 
ultimate disposition of a meat product is often not known at any particular stage of the production chain." This statement, in turn, is a quotation from  an answer provided by the United States to a 
question from the original panel. The United St ates explains that the question was not whether 
distinct distribution channels exist for sales to exempt establishments but, instead, how operators 
in the distribution chain distinguish exempt an d non-exempt meat. The United States contends 
that its answer spoke to that specific question, indicating that the United States was "not aware of 
any evidence" that operators "systematically separate[]" animals or meat products, and that this 
was due to the fact that "the ultimate disposition of a meat product is often not known at any particular stage of the production chain." Furtherm ore, this statement related to the situation at 
the time of the original proceedings.
64 The United States submits that, although its answer to the 
original panel's question may be understood, in  isolation, as supporting a view that mixed 
distribution channels exist, it does not, on its face, support a conclusion that distinct distribution 
channels do not exist for sales to exempt establishments.  
2.23.  The United States contends that whether information regarding the origin of all livestock will 
have to be identified, tracked, and transmitte d through the chain of production by upstream 
producers is critical to the weight that the Panel could have placed on the exemptions for the 
purpose of its analysis of whether the detrimenta l impact of the amended COOL measure reflects 
discrimination. The Panel should have considered whether the statement that it relied on is currently supported by the operation of the US market, or whether information regarding the 
origin of less than all livestock is being identified, tracked, and transmitted by producers and 
processors of livestock. Noting that the Pa nel did not undertake such an analysis, the 
United States submits that the Panel erred because it had no basis to conclude that all US 
slaughterhouses, wholesalers, and exempt retailers  take on recordkeeping costs that they are not 
obligated to assume. 
2.24.  The United States asserts that record evidence suggests that distinct distribution channels 
for sales to exempt establishments do, in fact, exist. In the proposed, interim, and final rules, the 
USDA explained that channels of distribution to exempt establishments would not be subject to the 
COOL requirements, and that firms were enga ged in distribution through such channels.
65 
Moreover, in the 2013 Final Rule, one commenter argued that imported products would derive an 
advantage from the revised labelling requirements, as imported products would be sold through 
foodservice channels, like restaurants, where they would not have to be labelled.66 Further, in 
examining estimated implementation costs of th e 2013 Final Rule, the USDA excluded muscle cuts 
of beef from its estimate, noting that these typically are marketed through hotel, restaurant, or 
institutional channels, such that they would be covered by the exemptions of the amended COOL 
measure.67 In addition, the USDA noted in the 2009 Final Rule (AMS) that most manufacturers of 
covered commodities will likely print country of or igin and, if applicable, method of production 
information on retail packages supplied to retailers.68  
2.25.  Finally, the United States highlights that Canada, itself, presented evidence from a packer 
that, once cattle are slaughtered and the meat is processed, packers ship it in boxes to 
distributors, food service establishments, and retailers.69 In each of these examples, the ultimate 
disposition of the meat is known at the slaughterhouse/packer or wholesaler stage of distribution. 
                                               
63 United States' appellant's submission, para. 233 (quo ting Panel Reports, para. 7.272, in turn quoting 
Appellate Body Reports, US – COOL , para. 344 (emphasis original), in turn quoting Original Panel Reports,  
US – COOL , para. 7.417). 
64 United States' appellant's submission, para. 242 (quoting United States' response to original panel 
question No. 93, para. 16). 
65 United States' appellant's submission, para. 240 (referring to 2009 Final Rule (AMS), p. 2696).  
66 United States' appellant's submission, para. 240 (referring to 2013 Final Rule, p. 31374). 
67 United States' appellant's submission, para. 240 (referring to 2013 Final Rule, p. 31380). 
68 United States' appellant's submission, para. 240 (referring to 2009 Final Rule (AMS), p. 2695). 
69 United States' appellant's submission, para. 240 (referring to United States District Court for the 
District of Colombia, American Meat Institute v. United States Department of Agriculture , Case 
No. 13-cv-1033, Declaration of Brad McDowell in Support  of Plaintiffs' Motion for a Preliminary Injunction 
(25 July 2013) (Panel Exhibit CDA-17), para. 5). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 23 - 
 
 Thus, there was evidence before the Panel that the ultimate disposition of a meat product is known 
at any particular stage of distribution. The questi on the Panel should then have asked is how often 
the ultimate disposition of meat products woul d not be known. Yet, the Panel simply did not 
examine this question. The United States notes that , although it is not aware of the extent of use 
of distinct distribution channels by US economic operators, neither Canada nor Mexico presented 
any evidence that slaughterhouses, wholesalers,  and exempt establishments are not making use 
of the exemptions to establish lower-cost channe ls of distribution. The limited evidence on the 
record relating to this issue suggests that dist inct distribution channels for sales to exempt 
establishments do exist. Thus, submits the United States, the Panel's conclusion is unsupportable.  
2.1.2  Article 2.2 of the TBT Agreement 2.26.  Conditional on Canada or Mexico appealing the Panel's findings on Article 2.2 of the 
TBT Agreement, the United States requests the Appellate Body to reverse certain aspects of the 
Panel's interpretation of Article 2.2. In particular, the phrase "taking account of the risks non-fulfilment would create" should not be interpreted to mean that providing less origin 
information for a significantly wider range of products might achieve an equivalent degree of 
contribution as the amended COOL measure.
70 Rather, the United States argues that the phrase 
"taking account of the risks non-fulfilment would create" is properly understood as a reflection that 
an individual Member takes into account such risk s when setting its desired level of fulfilment of a 
legitimate objective. 
2.27.  In the United States' view, it is within a Member's discretion to determine what legitimate 
objectives it seeks to pursue, and to what degree it wishes to pursue those objectives.71 In that 
regard, the United States points to the sixth preambular recital of the TBT Agreement, which 
states that it is a Member's right to pursue legitimate objectives "at the levels it considers appropriate".
72 A technical regulation can only be found to be "more trade restrictive than 
necessary" under Article 2.2 where an alternative, less trade-restrictive measure that makes an 
equivalent contribution to the objective is reasonably available to the Member. An approach that leads to a finding of inconsistency with Article 2. 2 on the basis of proposed alternative measures 
that provide less origin information would not be compatible with the fundamental premise that it 
is up to the Member adopting the technical regulation to decide the level at which it provides consumer information on origin, regardless of whether "the risks non-fulfilment would create" are high or low. 
2.28.  According to the United States, the Panel's interpretation of the phrase "taking account of 
the risks non-fulfilment would create" would appear to enable a panel to judge whether a trade-off between less origin information and wider product coverage could produce an equivalent 
contribution to the achievement of the objective of the amended COOL measure. In the 
United States' view, such an analysis would go beyond considering a challenged measure's contribution to a legitimate objective, and require an analysis of a Member's domestic interests, 
expectations, risks, and concerns. The value to assign to various objectives and the levels at which 
Members desire to fulfil particular objectives are very sensitive questions, and Members' views on these questions will vary, based on domestic conditions, societal preferences, cultural considerations, and other factors. The United States further contends that the objectives at issue 
include those relating to human health and safety, and that, under the Panels' approach, WTO 
panels would substitute their judgement for that of Members with respect to what value to assign to human health and safety and the risks created by not fulfilling the protection of human health 
and safety at the desired level. For the United States, any judgement based on the Panel's 
interpretation would ultimately be subjective, lacking any objective basis for determining whether a measure is more trade restrictive than necessary. 
                                               
70 United States' appellant's submission, para. 249 (referring to Panel Reports, para. 7.488). 
71 United States' appellant's submission, para. 260. 
72 United States' appellant's submission, fn 306 to para. 260 (quoting Appellate Body Reports, US – 
COOL , para. 373, in turn quoting Appellate Body Report,  US – Tuna II (Mexico) , para. 316). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.1.3  Articles III:4 and IX of the GATT 1994 
2.29.  The United States requests the Appellate Body to find that the Panel erred in concluding 
that the amended COOL measure is inconsistent with Article III:4 of the GATT 1994, in particular, by failing to take into account Article IX of th e GATT 1994 as relevant context. According to the 
United States, the context of Article IX informs the interpretation and application of Article III:4, 
and the Panel erred in finding that less favourable treatment could be demonstrated based on detrimental impact without a further inquiry into the context provided by Article IX of the 
GATT 1994. 
2.30.  The United States refers to the Appellate Body's statement in EC – Seal Products  that, 
"under the TBT Agreement, the balance betwee n the desire to avoid creating unnecessary 
obstacles to international trade under the fifth recital, and the recognition of Members' right to 
regulate under the sixth recital, is not, in principle, different from the balance set out in the 
GATT 1994, where obligations such as national trea tment in Article III are qualified by the general 
exceptions provision of Article XX"
73, and submits that this statement is based on considerations of 
the context afforded to Article III:4 by Article XX. In the same vein, the United States asserts that, 
in the present disputes, the Panel should have co nsidered the context provided by Article IX in 
interpreting Article III:4 of the GATT 1994.  
2.31.  In particular, the United States contends  that Articles IX:2 and IX:4 of the GATT 1994 
recognize that laws and regulations concerning consumer information on origin may cause difficulties and inconvenience to exporting Member s, and increase the cost of imported products. 
Consequently, Article III:4, when read in the context of Article IX, provides regulatory space for 
Members to provide consumers with information as to the origin of products in the sense that 
"reasons for any difficulties and inconveniences caused by the measures" should be taken into 
account.
74 This requires consideration of whether difficulties and inconveniences could "be 
reduced, with due regard to the necessity of protecting consumers, and what the reasons would be 
for any increased cost for imported products caused by the measures, in particular whether the measures unreasonably increase the cost of imported products."
75 
2.32.  The United States highlights the Panel's statement that "there may be a variety of possible 
reasons unrelated to risks for exempting or treating differently certain product categories under a Member's technical regulation, such as regulatory or compliance costs"
76, and submits that the 
Panel erred in failing to consider, in its Article III:4 analysis, the role of possible reasons, such as 
regulatory or compliance costs, for the structur e of the amended COOL measure and its impact on 
imported livestock. 
2.33.  The United States contends that the need  to take into account the context provided by 
Article IX in interpreting Article III:4 of the GATT 1994 is particularly relevant in these disputes, in 
the light of the original panel's finding that it is a legitimate objective of the United States to provide consumers with information on the country of origin of meat at the level of fulfilment that 
the United States considers appropriate. For the United States, the compliance Panel's finding that 
providing such information at the chosen level of fulfilment results in detrimental impact on the conditions of competition for imported livestock creates a "paradox".
77 On the one hand, the 
United States would be entitled to adopt a measure in order to provide this information to 
consumers. On the other hand, that measure could never be consistent with Article III:4, since it 
would have a detrimental impact on imported livestock. 
2.34.  Finally, the United States asserts that the Panel's approach would render Article IX inutile 
because, if a finding of detrimental impact alone were sufficient to establish discrimination in the 
context of marks of origin, then the provisions of Article IX would not be relevant, since a complainant could invoke the non-discrimination provisions of the GATT 1994 and there would be 
no utility for a complainant to invoke Article IX.  
                                               
73 United States' appellant's submission, para. 277 (quoting Appellate Body Reports, EC – Seal Products , 
para. 5.127, in turn referring to Appellate Body Report, US – Clove Cigarettes , para. 96). 
74 United States' appellant's submission, para. 284. 
75 United States' appellant's submission, para. 284. 
76 United States' appellant's submission, para. 286 (quoting Panel Reports, para. 7.380). 
77 United States' appellant's submission, para. 288. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.1.4  Article XX of the GATT 1994 
2.35.  The United States requests the Appellate Body to find that the Panel erred by not 
addressing, at the interim review stage, the avai lability of Article XX of the GATT 1994 as an 
exception with respect to the amended COOL measure.78 In addition, the United States requests 
the Appellate Body to complete the legal analysis and find which of the Article XX exceptions would 
be available "so as to maintain the balance between  a Member's right to regulate and the desire to 
avoid unnecessary obstacles to trade"79, and to find that the amended COOL measure qualifies as 
"necessary" within the meaning that has been give n  t o  t h a t  t e r m  a s  u s e d  i n  A r t i c l e  X X  o f  t h e  
GATT 1994. 
2.36.  The United States notes that, in its anal ysis of Article III:4 of the GATT 1994, the Panel 
relied on the Appellate Body reports in EC – Seal Products . The United States submits that, 
because those reports were circulated only after the conclusion of the period in which the parties 
in the COOL disputes could submit evidence an d arguments, the present Article 21.5 proceedings 
presented an extraordinary situation. In particular, the United States refers to the statement of the 
Appellate Body in EC – Seal Products  that, "under the TBT Agreement, the balance between the 
desire to avoid creating unnecessary obstacles to international trade … and the recognition of Members' right to regulate … is not, in principle, different from the balance set out in the 
GATT 1994, where obligations such as national trea tment in Article III are qualified by the general 
exceptions provision of Article XX."
80 The United States asserts that this statement came too late 
for the parties in the present Article 21.5 proceedings to submit evidence or argumentation with respect to Article XX of the GATT 1994.  
2.37.  The United States recalls that, at the interim review stage, it requested the Panel to address 
the relationship between Article 2.1 of the TB T Agreement and Article III:4 of the GATT 1994, and 
to address the availability of an Article XX exception with respect to the amended COOL measure. 
The United States takes issue with the Panel's response to this request that, having found the 
amended COOL measure to be in violation of both Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994, the Panel was not face d with the situation hypothetically suggested 
by the United States. For the United States, the Panel failed to appreciate the concern being 
expressed, which was not of a hypothetical nature, but flowing logically from the Panel's findings in the interim report. The Panel contemplated that the amended COOL measure could be brought into compliance with Article 2.1 of the TBT Agreement. The United States asserts that, if that were the 
case, there would presumably still be detrimental impact on imported livestock, but that 
detrimental impact would stem exclusively from legitimate regulatory distinctions. 
2.38.  The United States further contends that, under the Panels' approach, a measure consistent 
with Article 2.1 of the TBT Agreement would none theless be in breach of Article III:4 of the 
GATT 1994 if any detrimental impact remained, unless the measure qualified for an exception under Article XX of the GATT 1994. Therefore, the Pa nel was required to address the availability of 
Article XX as an exception with respect to the amended COOL measure in order to facilitate the 
resolution of the COOL disputes. If the balanc e under Article 2.1 of the TBT Agreement is in 
principle no different from the balance under Ar ticle III:4 and Article XX of the GATT 1994, then 
the Panel should have been able to explain how that would apply in the context of the COOL 
disputes. For the United States, the Panel's approach raises the question as to whether the balance 
is upset where the objective of the measure at issue is not one that is specified in Article XX of the 
GATT 1994. The United States further contends that this would undermine the ability of Members 
to regulate, and to pursue a wide range of objectives, including providing consumer information, 
preventing deceptive practices. If the amended C OOL measure could be consistent with Article 2.1 
of the TBT Agreement, while at the same ti me violating Article III:4 of the GATT 1994, the 
United States' right to regulate under the two agreements would be out of balance, and this would 
not conform to the Appellate Body's statement in EC – Seal Products . 
                                               
78 United States' appellant's submission, para. 301. 
79 United States' appellant's submission, para. 301. 
80 United States' appellant's submission, para. 277 (quoting Appellate Body Reports, EC – Seal Products , 
para. 5.127, in turn referring to Appellate Body Report, US – Clove Cigarettes , para. 96). See also ibid., 
para. 291. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.1.5  Article XXIII:1(b) of the GATT 1994 
2.39.  In the event that Canada or Mexico appeals the Panel's decision to exercise judicial 
economy with respect to Canada's and Mexico's non-violation claims under Article XXIII:1(b) of the GATT 1994, the United States requests the Appellate Body to find that these claims were not 
within the Panel's terms of reference. The United States argues that the Panel erred in concluding 
that "reviewing the 'consistency' of a measure taken to comply under Article 21.5 of the DSU 
extends to non-violation claims under Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the 
DSU"
81, and submits that the Panel's conclusion "is not based on the text of Article 21.5 of the 
DSU itself, but rather … over-ride[s] that text based on 'systemic considerations' and what the 
Panel[] perceived to be the 'objective' of Article 21.5 of the DSU."82  
2.40.  The United States contends that Article 21.5 of the DSU, read in its context, demonstrates 
that "consistency with a covered agreement of measures taken to comply" under Article 21.5 does 
not encompass review of a measure taken to comply in order to determine if the measure results in non-violation nullification or impairment. According to the United States, "Article 19.1 of the 
DSU explicitly contrasts 'inconsistency' with 'not involving a violation'."
83 While the 
recommendation under Article 19.1 is that the Member concerned bring the measure into conformity with the infringed agreement, this recommendation is not permitted under Article 26, 
which provides that, when there is a finding of non-violation, there is no obligation to withdraw the 
measure but, rather, to make a mutually satisfactory adjustment. Footnote 10 to Article 19.1 also addresses and recognizes this difference between "consistency" and "non-violation".  
2.41.  Moreover, the United States submits that, given the "exceptional" status of non-violation 
claims, such claims cannot be raised for the first time in compliance proceedings under Article 21.5 
of the DSU.
84 The United States also alleges that the Pane l's reliance on its view of the objective of 
Article 21.5 appears to have resulted in the Panel finding that the perceived objective justifies 
ignoring the text of the provision. Further, the United States maintains that the Panel erred 
in invoking "efficiency" as a basis for disregardi ng the agreed text of the covered agreements.85  
2.2  Arguments of Canada – Appellee 
2.2.1  Article 2.1 of the TBT Agreement 
2.42.  Canada requests the Appellate Body to reject the United States' claim that the Panel erred 
in concluding that the detrimental impact of the amended COOL measure on imported livestock 
does not stem exclusively from legitimate regulatory distinctions. According to Canada, the 
United States' claims and arguments under Article 2.1 of the TBT Agreement suggest that the 
Panel should have adopted and applied a legal fram ework that is at odds with the framework that 
the Appellate Body articulated and applied in the original disputes. 
2.2.1.1  The increased recordkeeping burd en entailed by the amended COOL measure 
2.43.  Canada requests the Appellate Body to reject the United States' claim that the Panel erred 
by considering that its finding that the amended COOL measure entails an increased recordkeeping 
burden on upstream producers of livestock constitutes an independent basis for concluding that 
the detrimental impact of that measure does not stem exclusively from legitimate regulatory distinctions. In Canada's view, the United States seeks to create the erroneous impression that the 
Panel found that the increased recordkeeping burden entailed by the amended COOL measure 
ipso facto  demonstrates that the detrimental impact of that measure does not stem exclusively 
from legitimate regulatory distinctions. Canada asserts, however, that this is not borne out by the analysis that the Panel conducted.  
2.44.  Canada contends that, at the outset of its analysis, the Panel stated that it would address 
the information that must be maintained by producers and processors of livestock – i.e. the recordkeeping burden – before turning to addr ess the information ultimately conveyed to 
                                               
81 United States' appellant's submission, para. 307 (quoting Panel Reports, para. 7.663). 
82 United States' appellant's submission, para. 308. 
83 United States' appellant's submission, para. 316. 
84 United States' appellant's submission, para. 320. 
85 United States' appellant's submission, para. 322. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 consumers, in the light of the exemptions from th e COOL requirements, as well as the accuracy of 
labels prescribed by the amended COOL measure.  According to Canada, the Panel followed this 
analytical framework. First, the Panel recalled its finding that the amended COOL measure has 
augmented the information that producers and processors of livestock are required to transmit and 
maintain. The Panel then observed that the amen ded COOL measure retains essentially the same 
exemptions as under the original COOL measur e, and noted features of the amended COOL 
measure that impact on the accuracy of the info rmation conveyed to consumers through the labels 
affixed to muscle cuts of meat. These factors – the upstream recordkeeping burden, label 
accuracy, and the exemptions from coverage – were then collectively assessed with a view to determining whether the informational "disconnect" identified by the Appellate Body in the original disputes had been rectified by the amended COOL measure. Canada submits that the Panel's 
assessment of the increased recordkeeping burd en entailed by the amended COOL measure was 
methodical, and that the Panel correctly put the issue of recordkeeping within the analytical framework articulated by the Appellate Body in the original disputes.  
2.45.  Canada further requests the Appellate Body  to reject the United States' claim that the 
Panel's finding that the amended COOL measure entails an increased recordkeeping burden is in error because the Panel erred in its analysis of the impact of point-of-production labelling and the 
elimination of the country order flexibility on recordkeeping. For Canada, the United States' claim 
improperly challenges factual findings made by the Panel and should not be considered by the Appellate Body in the absence of an explicit claim under Article 11 of the DSU.  
2.46.  With respect to the United States' claim that the Panel erred in finding that the amended 
COOL measure entails an increased recordkeeping burden because its analysis of the impact of 
point-of-production labelling on recordkeeping was based on incorrect hypothetical transactions that do not reflect actual trade in livestock among the three parties to the disputes, Canada 
alleges that the United States misrepresents the Panel's analysis. Canada recalls that, in assessing 
whether point-of-production labelling increases the number of distinct labels in scenarios involving Category B and C muscle cuts of multiple foreign origins, the Panel expressly noted that the 2009 
Final Rule (AMS), itself, addressed scenarios invo lving non-commingled Category B muscle cuts of 
multiple foreign origins. In addition, the 2013 Final Rule also provides explicit guidance as to the point-of-production labelling requirements that apply to livestock born and/or raised in multiple foreign countries. Canada, thus, submits that the United States criticizes the Panel for elaborating 
on the labelling rules that would apply in scenarios that the United States has, itself, articulated 
and codified in its domestic law. 
2.47.  Canada notes further that, after assessing the effect of point-of-production labelling in 
various scenarios, the Panel then examined the impact of the elimination of the commingling and 
country order flexibilities on segregation. The Panel then concluded that point-of-production labelling, together with the elimination of these flexibilities, increased the need for segregation in 
the US market – a point confirmed by extens ive evidence that was put before the Panel.
86 
Moreover, Canada points out that the Panel did not consider that segregation – or increased 
segregation for that matter – would constitute a violation of Article 2.1 of the TBT Agreement. 
Instead, the Panel considered that it had to assess whether segregation modifies the conditions of 
competition to the disadvantage of the imported product. Before doing so, the Panel examined the 
impact of the amended COOL measure on reco rdkeeping, and emphasized that the greater 
diversity of labels resulting from the elimination of the commingling and country order flexibilities 
creates a multiplicity of scenarios for which distinct and commensurate substantiating records are 
now required. It is thus clear that, contrary to the assertions of the United States, the Panel's conclusion that the amended COOL measure entails an increased recordkeeping burden in practice 
is based on much more than purely hypothetical livestock transactions. Noting that the 
Appellate Body was critical of the panel in Canada – Periodicals  for basing its "like" product 
findings "on a single hypothetical example"
87, Canada submits that the Panel in these disputes 
cannot be similarly faulted and, as such, the Un ited States' reliance on the Appellate Body's 
reasoning in Canada – Periodicals  is "inapt".88  
                                               
86 Canada's appellee's submission, para. 53 (referri ng to Panel Reports, para. 7.135 and to Panel 
exhibits cited in fns 324 and 325 thereto). 
87 Canada's appellee's submission, para . 55 (quoting Appellate Body Report, Canada – Periodicals , 
p. 21, DSR 1997:I, p. 467). 
88 Canada's appellee's submission, para. 55. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.48.  Canada also requests the Appellate Body to reject the United States' contention that the 
Panel erred in finding that the removal of the country order flexibility increases the recordkeeping burden for US-slaughtered livestock, and that th is supports a conclusion that the detrimental 
impact of the amended COOL measure does not stem exclusively from legitimate regulatory 
distinctions. According to Canada, uncontested facts that the Panel referred to reveal the 
inaccuracy of the United States' assertion that the elimination of the country order flexibility does not alter the recordkeeping burden that existed un der the original COOL measure. In this regard, 
the Panel observed that the recordkeeping and veri fication requirements that apply under both the 
original and amended COOL measures mandate that suppliers and retailers make available to USDA representatives records that verify an origin claim and, therefore, that the "origin claim" is a 
key determinant of the records and information required under the amended COOL measure. In 
addition, the Panel observed that the USDA's commentary accompanying the 2009 Final Rule 
(AMS) indicates that costs would be incurred by  producers "to record, maintain, and transfer 
country of origin … information to substantiate required claims made at retail", and that records 
were required to be sufficient to substantiate country of origin claims.
89 For Canada, this reveals 
the inaccuracy of the United States' position. Ca nada adds that, in the original proceedings, the 
United States asserted that the country order flexibility had been included under the original COOL 
measure to reduce compliance costs. Noting that compliance costs arise from the burden of the 
recordkeeping and verification requirements and the consequent need for segregation, Canada 
submits that the United States' position in the original proceedings confirms that the elimination of the country order flexibility increases the record keeping burden on producers and processors of 
livestock.  
2.49.  In relation to the United States' assertion that the elimination of the county order flexibility 
does not alter the recordkeeping burden because different categories of muscle cuts already had 
different records under the original COOL measure, Canada explains that, under the original COOL 
measure, where non-commingled Category B muscle cuts from Canada bore Label C as a result of the country order flexibility, the origin claim was "Product of Canada and the United States". 
Because the livestock used to produce these muscle cuts did not satisfy the definition of 
Category C, audited retailers could not demonstrat e that such muscle cuts derived from livestock 
imported from Canada for immediate slaughter. Nor could audited retailers be expected to demonstrate that such muscle cuts were in fact Category B muscle cuts – i.e. that they were 
derived from livestock raised in the United States. Thus, all that was required to verify a Label C 
origin claim was proof that the animal from which the muscle cut was derived was born outside of the United States – in the country that appear ed on the label. Canada asserts that, for the 
Appellate Body to accept the United States' posi tion that the elimination of the country order 
flexibility does not alter the recordkeeping burd en entailed by the amended COOL measure, the 
Appellate Body would need to be persuaded that, where Category B muscle cuts bore Label C 
under the original COOL measure, the records regarding any raising occurring in the United States 
were required to be maintained notwithstanding that such records were unnecessary to verify the 
origin claim.  
2.2.1.2  The accuracy of labels pres cribed by the amended COOL measure 
2.50.  Canada requests the Appellate Body to reject the United States' contentions that the Panel 
erred in finding that Labels B and C under the amended COOL measure convey potentially 
inaccurate information, and that this finding does not support the Panel's ultimate conclusion that 
the detrimental impact of that measure does not stem exclusively from legitimate regulatory 
distinctions. For Canada, the Panel's finding that Labels B and C convey potentially inaccurate information is a factual finding and, to the extent that the United States argues that this finding 
does not have a proper basis in the evidence exam ined by the Panel, the United States' arguments 
are outside the scope of this appeal in the absence of an explicit claim under Article 11 of the DSU.  
2.51.  In any event, as regards the United States' argument that the Panel erred by basing its 
finding that Labels B and C are potentially inaccurate on incorrect hypothetical scenarios, Canada 
considers that the United States mischaracterizes the Panel's analysis. According to Canada, the 
Panel correctly found that, on average, "Canadian feeder cattle spend between 45 and 68% … of their raising period outside the United States" and, on this basis, correctly determined that the 
country of raising flexibility allows labels "to designate the United States as the sole place of 
                                               
89 Canada's appellee's submission, para. 41 (quoting Panel Reports, para. 7.145, in turn quoting 2009 
Final Rule (AMS), p. 2698). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 raising to an animal that spent as little as 15 days in the United States".90 It was on this basis that 
the Panel found that Label B entails a potential for conveying inaccurate information in respect of its identification of where the animal was "raised". Canada submits that, accordingly, the United States' claim that the Panel based its analysis of label accuracy under the amended COOL 
measure on hypothetical livestock transactions has no foundation.  
2.52.  Canada further considers as being without merit the United States' claim that the Panel was 
precluded from examining hypothetical scenarios because the claim before it was one of de facto  
discrimination under Article 2.1 of the TBT Agreement. In this regard, Canada recalls that, in 
determining whether the detrimental impact caused by a challenged technical regulation reflects discrimination, panels are required to assess, among other things, the design, architecture, and revealing structure of the technical regulation at issue.
91 In short, the analysis is not strictly 
confined to factual matters concerning actual trade in the relevant market. 
2.53.  Canada also observes that the Panel found that Labels B and C represent the greatest 
incremental improvement in origin information ac hieved by the 2013 Final Rule, but rejected the 
contention of the United States that Label B is entirely accurate. In addition, the Panel noted that, 
although Label C "may allow – and possibly require – omission of actual countries of raising, resulting in label inaccuracy", that label "does not appear likely to convey misleading information 
about the country where animals imported for i mmediate slaughter are raised, given that these 
appear to be most commonly born and raised in the country of export".
92 Hence, in Canada's view, 
the Panel's identification of the informational shortcomings of the labels prescribed by the amended COOL measure was thus largely, but not entirely, focused on Label B.  
2.54.  Turning to the United States' argument that  the omission of countries of raising on Label B 
is not inaccurate because it is understood that an animal born in another country – i.e. outside the United States – will have been raised for at least a portion of its life in that other country, Canada 
responds that it is doubtful that a reasonable consumer would consider that an animal can be 
accurately described as having been raised in the United States if it has spent considerable time, and in many cases the majority of its raising period, in a foreign country. Therefore, it was 
appropriate for the Panel to take account of the fact that "the amended COOL measure allows 
labels to read 'raised in the United States' … on  meat from Category B feeder cattle that spend a 
substantial portion of their lives either in Canada or Mexico."
93  
2.55.  Canada further requests the Appellate Body to reject the United States' challenge of the 
Panel's finding that Labels B and C are potentially inaccurate on the ground that the Panel erred by 
not making a determination of whether the labels  prescribed by the amended COOL measure are 
even handed in their design and application, incl uding whether a disconnect exists between, on the 
one hand, the origin information required to be kept under the amended COOL measure and, on 
the other hand, the origin information that is ultimately conveyed to consumers through the labels. Canada contends that the Panel was correct in considering the upstream recordkeeping burden, 
label accuracy, and the exemptions from coverage in its assessment of whether the detrimental 
impact of the amended COOL measure stems exclus ively from legitimate regulatory distinctions. 
For Canada, "[t]he interaction of these three factors within the 'overall architecture' of the amended COOL measure"
94 supports the Panel's ultimate conclusion that "the detrimental impact 
caused by the amended COOL measure does not stem exclusively from legitimate regulatory 
distinctions"95, and this was a sufficient basis for finding a violation of Article 2.1 of the 
TBT Agreement.  
                                               
90 Canada's appellee's submission, para. 101 (quo ting Panel Reports, paras. 7.242 and 7.244, 
respectively). 
91 Canada's appellee's submission, para. 106 (referring to Appellate Body Reports, US – COOL , 
para. 271, in turn referring to Appellate Body Report, US – Clove Cigarettes , para. 182). 
92 Canada's appellee's submission, para. 99 (quoting Panel Reports, para. 7.254). 
93 Canada's appellee's submission, para. 103 (quoting Panel Reports, para. 7.269). 
94 Canada's appellee's submission, para. 108. 
95 Canada's appellee's submission, para. 108 (quoting Panel Reports, para. 7.283). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.2.1.3  The exemptions under the amended COOL measure 
2.56.  Canada requests the Appellate Body to reject the United States' claims concerning the 
Panel's assessment of the exemptions under the amended COOL measure in its analysis of whether the detrimental impact of that measure on imported livestock stems exclusively from 
legitimate regulatory distinctions.  
2.57.  Canada first requests the Appellate Body to reject the United States' argument that the 
Panel erred in finding that the exemptions under  the amended COOL measure are relevant to the 
assessment of whether the detrimental impact of  that measure on imported livestock stems 
exclusively from legitimate regulatory distinctions. Canada notes that, consistent with the approach adopted by the Appellate Body in the original disputes, the Panel identified the relevant regulatory distinctions drawn by the amended COOL  measure as the distinctions between the three 
production steps, as well as the mandatory labels to be affixed to muscle cuts of beef and pork. 
Noting the United States' argument that the exemptions are irrelevant because they are not distinctions that account for the detrimental impact on imported livestock, Canada responds that 
the Panel's attribution of relevance to the exemptions is consistent with the Appellate Body's 
approach in the original disputes. Moreover, the Panel's approach is consistent with the general legal framework that the Appellate Body has prescribed for assessing whether the relevant 
regulatory distinctions drawn by a technical regula tion are designed and applied in an even-handed 
manner. Canada explains that this legal framework requires panels to scrutinize carefully the particular circumstances of the case – that is, the design, architecture, revealing structure, operation, and application of the technical regulation at issue – rather than simply the relevant 
regulatory distinctions. In Canada's view, the Unit ed States requests the Appellate Body to ignore 
the exemptions and to consider the legitimacy of the regulatory distinctions drawn by the 
amended COOL measure in the abstract, divorced fr om the overall architecture of that measure.  
2.58.  Canada notes that, in support of its positi on, the United States repeatedly cites a statement 
made by the Appellate Body in US – Tuna II (Mexico)  that "[it] only need[ed] to examine the 
distinction that account[ed] for the detrimental impact on Mexican tuna products as compared to 
US tuna products and tuna products originating in other countries."
96 I n  C a n a d a ' s  v i e w ,  t h i s  
statement should be read as guidance that a determination should be focused on whether the 
detrimental impact caused by the relevant regulatory distinctions reflects arbitrary or unjustifiable discrimination. In the light of the clear guidance th at the Appellate Body has provided to panels, as 
well as the analysis conducted by the Appellate Body in the original disputes, the statement relied 
on by the United States cannot credibly be interpreted as a prohibition on the consideration of elements of a challenged technical regulation – or  the particular circumstances of the case – that 
do not directly account for the detrimental impact on imported products but, nevertheless, 
demonstrate the arbitrary or unjustifiable character of such impact.  
2.59.  As regards the United States' argument that the Panel failed to take account of the fact that 
the exemptions apply equally to meat derived from  imported and domestic livestock and are thus 
even handed, Canada responds that the United States' argument reveals a fundamental misunderstanding of the analysis under Article 2.1 of the TBT Agreement. The Panel took the 
exemptions into account as part of its assessment of the "overall architecture" of the amended 
COOL measure. In this regard, the Panel, like the Appellate Body in the original disputes, 
determined that the exemptions under the amended COOL measure demonstrate that the recordkeeping burden giving rise to the detrimental impact cannot be explained by the need to 
convey to consumers information regarding the countries where livestock were born, raised, and 
slaughtered. Canada highlights that this ultimately led the Panel to conclude that the detrimental impact of the amended COOL measure on import ed livestock does not stem exclusively from 
legitimate regulatory distinctions.  
2.60.  Canada further contends that the United States' reliance on differences between, on the one 
hand, the exemptions under the measures at issue in US – Clove Cigarettes  and EC – Seal 
Products and, on the other hand, the exemptions under the amended COOL measure should be 
rejected, because the Appellate Body has not indicated that exemptions must exhibit certain 
characteristics to be relevant to an analysis und er Article 2.1. Instead, the Appellate Body has 
                                               
96 Canada's appellee's submission, para . 62 (quoting Appellate Body Report, US – Tuna II (Mexico) , 
para. 286 (emphasis original)). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 been clear that panels are required to base their determination of de facto  discrimination "on the 
totality of facts and circumstances" before them.97  
2.61.  Canada also requests the Appellate Body to reject the United States' contention that the 
Panel erred in its assessment of the exemptions by failing to take into account the legitimate 
desire of Members to adjust the scope of their technical regulations in order to take account of 
cost considerations. Canada submits that the Panel correctly found that, while such considerations "are not per se  prohibited", they do not constitute a "supervening justification for discriminatory 
measures".
98 In addition, Canada contends that the cost  savings achieved by exempt US entities 
do not detract from the fact that the amende d COOL measure arbitrarily and unjustifiably 
discriminates against Canadian livestock. Thus, for Canada, the position of the United States that the cost savings achieved by the exemptions nullify the discriminatory effects of the amended 
COOL measure is "untenable".
99  
2.62.  Canada further requests the Appellate Body to reject the United States' claim that the Panel 
erred in its assessment of the exemptions becaus e it failed to examine whether the nature and 
scope of these exemptions establish a "disconnect" between the origin information collected by 
producers and processors of livestock and the origin information conveyed to consumers on labels that is so disproportionate as to support the conclusion that the detrimental impact of the 
amended COOL measure reflects discrimination.  For Canada, the Panel was thorough in its 
assessment of the contribution made by the exemptions to the informational "disconnect" identified by the Appellate Body in the original di sputes. In this regard, the Panel determined that, 
because of the exemptions under the amended C OOL measure, of total US beef consumption, 
between 16.3% and 24.5% are muscle cuts carrying Labels A-D, and between 16.6% and 17.8% 
are ground meat carrying Label E.
100 Moreover, Canada submits that the increased recordkeeping 
burden entailed by the amended COOL measure, and the fact that the greatest incremental 
improvement in origin information achieved by the 2013 Final Rule is for Labels B and C in a 
market dominated by Label A, reveal how marg inal the contribution of the amended COOL 
measure is to the rectification of the informational "disconnect" identified by the Appellate Body in 
the original disputes. Canada, thus, submits that the United States' characterization of the Panel's 
treatment of the exemptions in its analysis of the legitimacy of regulatory distinctions under Article 2.1 does not withstand scrutiny.  
2.63.  In addition, Canada requests the Appellate Body to reject the United States' claim that the 
Panel's conclusions concerning the exemptions are legally erroneous because the Panel failed to 
undertake an evaluation of the operation of these exemptions in the US market, and pointed to no 
evidence in support of its findings. Canada submits that the United States' challenge to the Panel's 
conclusion essentially concerns the merits of the adopted findings of the original panel and the 
Appellate Body in the original disputes to the effect that the ultimate disposition of a meat product is often not known at any particular stage of distribution. These findings, contends Canada, are 
factual findings and, to the extent that the United States seeks to challenge them, this challenge is 
outside of the scope of this appeal in the absence of an explicit claim under Article 11 of the DSU.  
2.64.  In any event, Canada asserts that the United States has not questioned the continued 
accuracy of the findings of the original panel and the Appellate Body in the original disputes. 
Canada points out that it relied on those findings in making its prima facie  case under Article 2.1 of 
the TBT Agreement, and the Panel correctly relied  on those findings in its assessment of the 
exemptions.
101 Canada highlights that the Appellate Body has considered that "doubts could arise 
about the objective nature of an Article 21.5 panel' s assessment if, on a specific issue, that panel 
were to deviate from the reasoning in the original panel report in the absence of any change in the underlying evidence in the record."
102 Thus, having not been presented with any evidence that 
would affect the findings of the original panel concerning the operation of the exemptions in the 
                                               
97 Canada's appellee's submission, para . 70 (quoting Appellate Body Report, US – Clove Cigarettes , 
para. 206). 
98 Canada's appellee's submission, para.73 (quoting Panel Reports, para. 7.275). 
99 Canada's appellee's submission, para. 76. 
100 Canada's appellee's submission, para. 79 (referring to Panel Reports, para. 7.258). 
101 Canada's appellee's submission, para. 34 (referring to  Canada's first written submission to the Panel, 
para. 71; and second written subm ission to the Panel, para. 33). 
102 Canada's appellee's submission, para . 87 (quoting Appellate Body Report, US – Upland Cotton 
(Article 21.5 – Brazil) , para. 386, in turn quoting Appellate Body Report, US – Softwood Lumber VI 
(Article 21.5 – Canada) , para. 103). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 US market, the compliance Panel was correct in not deviating from the reasoning of the original 
panel on this issue.  
2.65.  Canada submits further that the United St ates' criticism of Canada for failing to present 
evidence that distinct distribution channels do not exist for the sale of meat to entities that are 
exempt, and not exempt, from the COOL requirem ents is inconsistent with basic principles 
concerning the allocation of the burden of proof  in WTO dispute settlement proceedings. A party 
asserting a fact must provide proof thereof. Thus, Canada did not have a burden to discharge with 
respect to an adopted finding made by the original panel that the United States did not take issue 
with before the compliance Panel. Instead, had the United States claimed before the compliance Panel that distinct distribution channels currently exist for the sale of meat to entities that are exempt, and not exempt, from the COOL requirem ents, the United States would have borne the 
burden of proving this.  
2.66.  Finally, although Canada considers that the arguments brought by the United States raise 
factual issues that are outside the scope of appellate review, Canada contends that, in any event, 
evidence on the record does not support the United  States' contention that distinct distribution 
channels exist for the sale of meat products to exempt US entities. In this regard, Canada relies on, inter alia , several statements of the USDA in its analyses of the impact that the original and 
amended COOL measures would entail in the pork, beef, hog, and cattle markets in the 
United States.  
2.2.2  Article 2.2 of the TBT Agreement 2.67.  Canada requests the Appellate Body to reject the United States' conditional appeal with 
respect to certain aspects of the Panel's interpreta tion of Article 2.2 of the TBT Agreement. Canada 
submits that this appeal reflects a mistaken understanding of that provision. Canada argues that, contrary to the United States' understanding , the phrase "taking account of the risks 
non-fulfilment would create" is not merely descriptive or hortatory
103; rather, it is an integral part 
of the obligation under Article 2.2, and means that the trade-restrictiveness of a technical 
regulation has to be calibrated to the gravity of the consequences that may arise if its objective is 
not fulfilled.  
2.68.  Canada contends that the GATT 1994 is directed to the substantial reduction of barriers to 
trade, and that the TBT Agreement contributes to the objectives of the GATT 1994 through the 
same means. Technical regulations are a class of measures that may be used to pursue objectives 
whose importance varies. Technical regulations may seriously hinder international trade and the 
risks at issue may not always justify such restrictions. Canada submits that the phrase "taking account of the risks non-fulfilment would create" reflects those considerations and, in that regard, 
it differs significantly from Article 5.6 of th e Agreement on the Application of Sanitary and 
Phytosanitary Measures (SPS Agreement), since the SPS Agreement is directed at very important objectives with grave consequences. 
2.69.  In Canada's view, the recognition in the sixth preambular recital of the TBT Agreement that 
a Member may take measures necessary to fulfil certain objectives "at the levels it considers appropriate" is qualified by the clause that such measures must be "otherwise in accordance with 
the provisions of [the TBT] Agreement". Thus, "taking account of the risks non-fulfilment would 
create" under Article 2.2 requires the weighing and balancing of relevant factors in a "relational" 
analysis to determine whether the trade-restrictiveness of the measure is calibrated to the risks. 
2.70.  In Canada's view, an assessment of "the risks non-fulfilment would create" is not a political 
or regulatory matter for the Member concerne d, but is, rather, a legal requirement under 
Article 2.2 of the TBT Agreement. It is thus for a panel to assess on the basis of reason, which is neither purely subjective nor purely objective, contrary to the arguments of the United States. 
                                               
103 Canada's appellee's submission, para. 123. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.2.3  Articles III:4 and IX of the GATT 1994 
2.71.  Canada requests the Appellate Body to uphold the Panel's finding in respect of Article III:4 
of the GATT 1994 and to reject the approach of re lying on Article IX in the interpretation of 
Article III:4 of the GATT 1994, as su ggested by the United States.104 For Canada, it was correct for 
the Panel not to address Article IX, because the United States had made no defensive claim under 
that provision, nor had it presented evidence in that regard. Canada explains that the Appellate Body in US – Gambling  made it clear that a responding Member cannot expect a panel to 
formulate a defence or rebuttal argument for it and then rule on it.
105  
2.72.  Canada disagrees with the United States' argument that the approach taken by the Panel in 
these disputes would render Article IX "inutile".106 Canada alleges that the United States has failed 
to explain why that would be so, and refers to oral arguments before the panel and the 
Appellate Body in the original proceedings in which it had explained why, in its view, Article IX of 
the GATT 1994 is not relevant to the facts of this case.  
2.73.  Canada maintains that, even if the Appellate Body were to be of the view that reliance by 
the United States on Article IX does not amount to an affirmative defence, then there would still be 
strong reasons, based on considerations of due process, not to entertain the United States' argument based on Article IX. In this regard, Canada refers to the Appellate Body reports in EC – 
Seal Products , and submits that the Appellate Body refrai ned from completing the legal analysis in 
view of the novel character of an issue that the panel had not examined, and on which the panel made no findings.
107 In Canada's view, similar considerations of due process apply to the reliance 
by the United States on Article IX of the GATT 1994 at this stage in the present dispute, in the 
light of a "complete absence" of legal arguments in this regard before the compliance Panel.108 In 
any event, Canada maintains that the legal test for Article III:4 of the GATT 1994 is well established and should not be modified as suggested by the United States. 
2.2.4  Article XX of the GATT 1994 
2.74.  Canada requests the Appellate Body to uphold the Panel's finding in respect of Article III:4 
of the GATT 1994 and to reject the United States' request to find that the Panel erred in not 
addressing the availability of Article XX of th e GATT 1994 as an exception for the amended COOL 
measure and to complete the legal analysis and determine which of the Article XX exceptions would be available. For Canada, the United States' request resembles a request for an "advisory opinion".
109  
2.75.  Canada highlights that, while both in the original proceedings and in the Article 21.5 
proceedings it had claimed that the measures at issue were inconsistent with Article III:4, the United States chose not to raise a defence under Article XX. For Canada, the present request of 
the United States is an attempt to advance such a defence at the final stage of the disputes, 
contrary to the principles of due process and previous jurisprudence of the Appellate Body.  
2.76.  Canada disagrees with the United States' argument that it could not have predicted the 
Appellate Body's ruling in EC – Seal Products . First, the Appellate Body reports in EC – Seal 
Products  simply upheld the finding of the panel on this  point. Canada also highlights that the issue 
of the applicability of the legitimate regulatory distinctions criterion to the test under Article III:4 of the GATT 1994 was a key issue throughout the EC – Seal Products  disputes, and that the 
United States as a third participant in those disputes was aware of this.
110 Moreover, Canada 
explains that the Appellate Body report in US – Tuna II (Mexico)  already clarified that the scope 
and content of the national treatment obligations  of the TBT Agreement and of the GATT 1994 are 
                                               
104 Canada's appellee's submission, para. 150. 
105 Canada's appellee's submission, para. 143 (referring to Appellate Body Report, US – Gambling , 
para. 282). 
106 Canada's appellee's submission, para. 142 (quo ting United States' appellant's submission, 
para. 289). 
107 Canada's appellee's submission, para. 144 (referring to Appellate Body Reports, EC – Seal Products , 
para. 5.69). 
108 Canada's appellee's submission, para. 144. 
109 Canada's appellee's submission, para. 145. 
110 Canada's appellee's submission, para. 146 (referring to United States' third participant's submission 
in EC – Seal Products , paras. 4-26). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 not the same. Therefore, the United States could well have foreseen the possibility that 
consideration of legitimate regulatory distinctions relevant under Article 2.1 of the TBT Agreement would not be relevant in respect of Article III:4 of the GATT 1994. Canada further argues that the United States could have structured its defence in the present disputes so as to accommodate the 
possibility of the panel's and Appellate Body's findings in EC – Seal Products  by raising a defence 
under Article XX of the GATT 1994 in the alternative, should its "novel interpretation" of Article III:4 not be accepted.
111  
2.77.  Finally, Canada highlights that, while un der Article XX of the GATT 1994 a measure must be 
provisionally justified under one of the subparagraphs of that provision, the United States has not identified any subparagraph, let alone provisionally justified the amended COOL measure under a subparagraph. Furthermore, even at the interim review stage, the United States limited itself to 
asserting that "there must be an Article XX ex ception that would be available for COOL", and 
requesting the Panel to "address the availability of Article XX as an exception for Article III:4 with respect to COOL" in general terms.
112 According to Canada, the Panel was correct in denying this 
request because it would have required examination of an issue for which neither the 
United States, nor the complainants, had provided specific evidence or arguments.  
2.2.5  Article XXIII:1(b) of the GATT 1994 
2.78.  Canada requests the Appellate Body to reject the United States' appeal of the Panel's 
interpretation of Article 21.5 of the DSU. With respect to the United States' claim that Canada's non-violation claim fell outside the Panel's terms of reference, Canada maintains that the United States portrays the Panel as "having taken liberties with the text" of Article 21.5 of the 
DSU.
113 For Canada, the Panel conducted a careful analys is of the text of Article 21.5 in its context 
and in the light of its object and purpose, and co rrectly concluded that its jurisdiction included 
Canada's non-violation claim. The Panel correctly considered the objective of Article 21.5 as being 
the promotion of prompt compliance with the recommendations and rulings of the DSB, the 
avoidance of requiring new proceedings, and the efficient use of the original panelists.114 For 
Canada, these are valid considerations going to the object and purpose of Article 21.5 in the 
broader context of the WTO dispute settlement sy stem, and the Panel was entitled to point out 
that the interpretation of Article 21.5 espoused by the United States would, as its consequence, require the complainants in the Article 21.5 pr oceedings to request the establishment of an 
entirely new panel in respect of a non-violation claim. For these reasons, Canada disagrees with 
the United States' contention that the Panel used institutional considerations to override the text of 
Article 21.5 of the DSU. 
2.3  Arguments of Mexico – Appellee 
2.3.1  Article 2.1 of the TBT Agreement 
2.79.  Mexico requests the Appellate Body to reject the United States' claim that the Panel erred in 
concluding that the detrimental impact of the am ended COOL measure on imported livestock does 
not stem exclusively from legitimate regulatory distinctions. According to Mexico, the Panel 
correctly found that the relevant regulatory di stinctions under the amended COOL measure are 
essentially the same as those under the original COOL measure. The Panel then correctly applied 
the same legal framework that the Appellate Body applied in the original disputes in determining 
whether these distinctions are "legitimate" for the purposes of Article 2.1 of the TBT Agreement.  
2.3.1.1  The increased recordkeeping burd en entailed by the amended COOL measure 
2.80.  Mexico requests the Appellate Body to reject the United States' claim that the Panel erred in 
considering that its finding that the amended COOL measure entails an increased recordkeeping 
burden constitutes an independent basis for concluding that the detrimental impact of that measure does not stem exclusively from legitimate regulatory distinctions. According to Mexico, 
                                               
111 Canada's appellee's submission, para. 147. 
112 Canada's appellee's submission, para. 148 (referri ng to United States' appellant's submission, 
para. 292; and Panel Reports, para. 6.70). 
113 Canada's appellee's submission, para. 152 (referri ng to United States' appellant's submission, 
paras. 308-311). 
114 Canada's appellee's submission, para. 153 (referring to Panel Reports, para. 7.661). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the United States' arguments are without merit because they are based on a misunderstanding of 
the legal analysis that the Panel conducted under Ar ticle 2.1 of the TBT Agreement. In this regard, 
the Panel considered the increased recordkeepin g burden entailed by the amended COOL measure 
as a relevant factor in the design, architecture, revealing structure, operation, and application of 
the technical regulation at issue, which the Panel carefully scrutinized for the purpose of 
determining whether the relevant regulatory distinctions under the amended COOL measure are designed and applied in an even-handed manner. The framework applied by the Panel, in this 
respect, is the same framework applied by th e Appellate Body in the original proceedings.
115 
Moreover, contends Mexico, the Panel's application of this framework demonstrates that the Panel carefully considered the proportionality of the burden of recordkeeping and verification requirements imposed on producers and processors of livestock, in relation to the origin 
information that is actually provided to cons umers of meat products in the US market.  
2.81.  In addition, Mexico contends that, contrary to the United States' assertions, the Panel's 
analysis of the legitimacy of regulatory distinct ions drawn by the amended COOL measure involved 
a comparison of the burden of recordkeeping and the provision of information through labels. In 
this regard, the Panel determined that the amen ded COOL measure is designed and applied in a 
manner that: (i) increases the origin information communicated to consumers through mandatory 
retail labels of muscle cuts of meat sold in retail establishments; (ii) necessarily increases the 
recordkeeping burden on upstream producers and processors of livestock in order to do so; and (iii) maintains the same proportion of information that is not communicated at all to consumers due to the exemptions from coverage. Accordingly, Mexico submits that the United States' 
argument that the Panel used its finding that the amended COOL measure entails an increased 
recordkeeping burden as an independent basis for its conclusion under Article 2.1 of the TBT Agreement is without merit. 
2.82.  Mexico further requests the Appellate Body to reject the United States' claim that the 
Panel's finding that the amended COOL measure entails an increased recordkeeping burden is in error because the Panel erred in its analysis of the impact of the point-of-production labelling 
requirement and the elimination of the country orde r flexibility on recordkeeping. For Mexico, the 
United States' claim improperly challenges factual findings made by the Panel and should not be considered by the Appellate Body in the absence of  an explicit claim under Article 11 of the DSU. 
2.83.  In any event, as regards the Panel's analys is of the impact of point-of-production labelling 
on recordkeeping, Mexico requests the Appellate Body to reject the United States' contention that 
the Panel's analysis is in error because it is based on incorrect hypothetical scenarios that do not reflect actual trade in livestock among the three parties to the disputes. According to Mexico, the 
United States' arguments are premised on a fundamental mischaracterization of the Panel's 
reasoning. Mexico recalls, in this regard, that, in its analysis of the impact of point-of-production labelling on recordkeeping, the Panel recognized  that point-of-production labelling does not 
increase the number of labels for Category A, B, and C muscle cuts of a single foreign origin. 
However, the Panel found that point-of-production labelling increases the number of distinct labels in respect of: Category B muscle cuts of different foreign origins; Category B muscle cuts of different, multiple foreign origins; and Category C muscle cuts of animals born in a foreign 
country, raised in that and another foreign country, and imported into the United States for 
immediate slaughter (where only the country of im mediate import can be shown as the country of 
raising on the label). Mexico contends that, although the United States seeks to create the 
impression that none of these scenarios is in any way realistic, the United States overlooks that 
the Panel included in its discussion of Category B and C muscle cuts of "multiple foreign origins" scenarios in which muscle cuts from different animals – some born in Mexico, some born in 
Canada, and both slaughtered in the United St ates – would be packaged together. The Panel 
correctly concluded that, under the original COOL  measure, those muscle cuts could be packaged 
with a single label while, under the amended COOL measure, they may not. Mexico highlights that 
the United States has not explained why this scena rio is unrealistic. Moreover, the Panel correctly 
noted that the 2009 Final Rule (AMS), itself, addressed scenarios involving non-commingled 
Category B muscle cuts of multiple foreign origins, and that the 2013 Final Rule provides explicit guidance as to the point-of-production labelling requirements that apply to livestock born and/or 
raised in multiple foreign countries. Mexico submits that the fact that the USDA considered these 
                                               
115 Mexico's appellee's submission, para. 26 (referring to Panel Reports, paras. 7.194-7.195). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 very scenarios as warranting specific attention undermines the credibility of the United States' 
criticism of the Panel's analysis.116 
2.84.  Mexico further requests the Appellate Body to reject the United States' contention that the 
Panel erred in finding that the removal of the country order flexibility increases the recordkeeping 
burden for US-slaughtered livestock and in considering that this finding supports its ultimate 
conclusion under Article 2.1 of the TBT Agreement. Mexico points out that, contrary to the United States' assertion, the Panel made no finding that "the removal of the country order 
flexibility supported a conclusion that the detrimental impact does not stem exclusively from 
legitimate regulatory distinctions through increased recordkeeping."
117 Instead, the Panel found 
that the greater diversity of labels resulting from the elimination of both the commingling and country order flexibilities "creates a multiplicity of scenarios for which distinct and commensurate 
substantiating records are now required"
118, and that the "increase in the number of distinct labels 
and in segregation logically entails a higher recordkeeping burden."119 In addition, in the light of 
the nature of the "origin claims" that must be substantiated through the records that are created 
and maintained by meat processors, packers, and retailers, the Panel found that the amended 
COOL measure necessarily leads to a higher re cordkeeping burden and higher costs for these 
industry participants. Mexico highlights, further, that the Panel took into account the USDA's own 
admission that greater costs would be incurred by industry participants as a result of the 
elimination of the flexibilities previously available under the original COOL measure. 
2.3.1.2  The accuracy of labels pres cribed by the amended COOL measure 
2.85.  Mexico requests the Appellate Body to reject the United States' contention that the Panel 
erred in finding that Labels B and C under the amended COOL measure are potentially inaccurate 
because the Panel based this finding on incorrect hypothetical scenarios that are not reflective of actual trade in livestock between the three parties to the disputes. Mexico submits that, contrary 
to the United States' assertions, the Panel's concerns regarding potential label inaccuracy under 
the amended COOL measure focused on Category B feeder cattle that spend a substantial portion 
of their lives either in Canada or Mexico, and that the United States itself admits that this scenario 
occurs. Moreover, the Panel's finding of a potential for label inaccuracy in relation to Label B is not 
based on incorrect hypothetical livestock trade scenarios, as the United States alleges but, rather, on a carefully reasoned and objective assessment of  the implications of the design and application 
of the labelling rules prescribed by the amende d COOL measure for muscle cuts of beef. In 
undertaking this assessment, the Panel clearly and consistently indicated where "certain so-called 
'hypothetical scenarios' would be unlikely to occur wi th material frequency in actual practice", and 
discounted them accordingly.
120 The Panel's finding is not based on these infrequent scenarios but, 
rather, on specific scenarios in which the amended COOL measure, in its application, would permit 
labels indicating only "raised in the United States" for "livestock that commonly spend between approximately one third and one half of their lives elsewhere".
121 This was not an unlikely 
"hypothetical scenario" but, rather, a reasoned finding of a reality based on the average age at 
which Category B feeder cattle are imported into the United States from Mexico and Canada. 
2.86.   As regards Label C, Mexico observes that the Panel recognized that the potential 
inaccuracies that it observed with respect to the omission of countries of raising on that label were 
less likely to occur in practice. It is, thus, clear from the Panel's reasoning that its concerns 
regarding a potential for label inaccuracy under the amended COOL measure were focused on Label B, in respect of which the Panel found that, "in its application , the amended COOL measure 
permits labels indicating 'raised in the United States' alone for livestock that commonly spend 
between approximately one third and on e half of their lives elsewhere."
122 By contrast, the Panel 
expressed very limited concerns about the potential inaccuracies arising in respect of Label C, 
                                               
116 Mexico's appellee's submission, para. 35. 
117 Mexico's appellee's submission, para. 39 (quoting United States' appellant's submission, paras. 21 
and 129). 
118 Mexico's appellee's submission, para. 40 (quoting Panel Reports, para. 7.147). 
119 Mexico's appellee's submission, para. 40 (quoting Panel Reports, para. 7.149). 
120 Mexico's appellee's submission, para. 46 (referring to Panel Reports, para. 7.238). 
121 Mexico's appellee's submission, para. 46 (quoting Panel Reports, para. 7.244). 
122 Mexico's appellee's submission, para. 47 (quoting Panel Reports, para. 7.244 (emphasis original)). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 precisely because scenarios giving rise to such inaccuracies "appear to be unlikely in the 
United States' actual trade of livestock."123  
2.87.  Mexico considers further that the United St ates' reliance on the Appellate Body report in 
Canada – Periodicals is also incorrect, as the Panel did not undertake an inadequate factual 
analysis but, rather, undertook a careful, detailed, and thorough factual analysis to arrive logically 
at its conclusion. Accordingly, the United States' argument that the Panel erred in basing its finding that the amended COOL measure entails a potential for label inaccuracy on incorrect 
hypothetical scenarios is premised on a mischaracterization of the Panel's reasoning and findings, 
and should, therefore, be rejected. 
2.3.1.3  The exemptions under the amended COOL measure 2.88.  Mexico requests the Appellate Body to reject the United States' claims concerning the 
Panel's assessment of the exemptions under the amended COOL measure in its analysis of 
whether the detrimental impact of that measure on imported livestock stems exclusively from legitimate regulatory distinctions.  
2.89.  Mexico considers as being without merit the United States' argument that the Panel erred in 
finding that the exemptions under the amended COOL measure are relevant to the analysis of whether the detrimental impact of that measure on imported livestock stems exclusively from 
legitimate regulatory distinctions. According to Mexico, the Panel correctly found that the 
exemptions are relevant to the analysis becaus e they are essential elements of the design, 
architecture, revealing structure, operation, and application of the amended COOL measure. 
Mexico asserts further that, contrary to what the United States suggests, an examination of 
whether the detrimental impact of a technical regulation stems exclusively from legitimate 
regulatory distinctions should not be undertaken in a vacuum. Instead, such an examination must take into account the operation and application of the relevant regulatory distinctions within the 
context of the design, overall architecture, and revealing structure of the technical regulation at 
issue. For Mexico, the United States' approach wo uld insulate from examination the elements of a 
regulatory regime that evidence a lack of even-handedness in the design, operation, and 
application of the elements that cause the detrimental impact.  
2.90.  Mexico agrees that, in assessing whether the detrimental impact of a technical regulation on 
imported products stems exclusively from legiti mate regulatory distinctions, a panel needs to 
examine only the regulatory distinctions drawn by that technical regulation that account for such 
detrimental impact. Contrary to the interpretation  proposed by the United States, however, the 
Appellate Body's statements in US – Tuna II (Mexico)  and EC – Seal Products  do not restrict or 
narrow the manner in which the legitimacy of the relevant regulatory distinctions should be 
examined for the purposes of Article 2.1 of the TBT Agreement. Such an examination must take 
into account the operation and application of the relevant regulatory distinction – i.e. how it functions in practice – within the context of the design, overall architecture, and revealing 
structure of the technical regulation as it operates and is applied in the real world. Mexico 
emphasizes that the Appellate Body confirmed as mu ch in the original disputes when it explained 
that, "[i]n assessing even-handedness, a panel must 'carefully scrutinize … the design, architecture, revealing structure, operation and application of the technical regulation at issue'."
124 
2.91.  Mexico also requests the Appellate Body to reject the United States' contention that the 
Panel erred in its assessment of the exemptions by failing to take account of the fact that the exemptions apply equally to meat derived from imported and domestic livestock and are, thus, 
even handed. Mexico asserts that the Appellate Body has established that the regulatory 
distinctions that account for the detrimental impact on imported products must be assessed for the purpose of determining whether they are design ed and applied in an even-handed manner. By 
contrast, it is not necessary to determine also whether other aspects of the measure – i.e. aspects 
that do not account for the detrimental impact on imported products – are designed or applied in an even-handed manner. Mexico contends that th e even-handedness of the exemptions under the 
amended COOL measure was not at issue before the compliance Panel because they are not 
regulatory distinctions that account for the detrimental impact on imported livestock. Accordingly, 
                                               
123 Mexico's appellee's submission, para. 47 (quoting Panel Reports, para. 7.252 (fn omitted)). 
124 Mexico's appellee's submission, para. 57 (quoting Appellate  Body Reports, US – COOL , para. 271, in 
turn referring to Appellate Body Report, US – Clove Cigarettes , para. 182). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the question of whether the exemptions under  the amended COOL measure are designed or 
applied in an even-handed manner is entirely irrelevant to the pertinent legal issue, i.e. whether the relevant regulatory distinctions that account for the detrimental impact on imported livestock are designed or applied in an even-handed manner . In Mexico's view, the United States fails to 
recognize that the exemptions are relevant as part of the overall analysis of how the relevant 
regulatory distinctions are designed and applied wi thin the context of the amended COOL measure.  
2.92.  Responding to the United States' characterization of the exemptions as "even handed", 
Mexico submits that the fact that certain US entities may enjoy cost savings as a result of the 
exemptions has no bearing on the fact that the exemptions, as a central element of the overall design and architecture of the amended COOL  measure, contribute to the informational 
"disconnect" created by the amended COOL measure between the origin information tracked and 
transmitted by producers of livestock and the or igin information conveyed to consumers through 
the mandatory labels.
125  
2.93.  With regard to the United States' argument that the Panel failed to take into account cost 
considerations in its assessment of the exempt ions under the amended COOL measure, Mexico 
responds that any cost savings achieved by these exemptions cannot excuse, justify, counterbalance, or otherwise legitimize the discrim inatory effects of that measure. Thus, the cost 
savings entailed by the exemptions under the amended COOL measure do not alter the reality that 
these exemptions remove a significant proportion of beef products from the scope of the requirements of the amended COOL measure altoge ther, thereby preventing the origin information 
that is required to be collected by producers of livestock from being conveyed to consumers. 
Mexico highlights that it was for this reason that  the Panel considered the exemptions as evidence 
that the recordkeeping burden giving rise to th e detrimental impact on imported livestock cannot 
be explained by the need to convey to consumers information regarding the countries where 
livestock were born, raised, and slaughtered. Mexico submits that the cost savings for US entities 
excluded from the COOL requirements achieved by  the exemptions do not affect this conclusion. 
Mexico highlights further that the United States' arguments ignore the Appellate Body's clear 
pronouncement that, although "[n]othing in Article 2.1 prevents a Member from seeking to 
minimize the potential costs arising from technical regulations", this is qualified by the requirement that "the technical regulation at issue does not overtly or covertly discriminate against imports."
126 
In Mexico's view, the amended COOL measure fails to comply with this requirement. 
2.94.  Mexico further requests the Appellate Body to reject the United States' claim that the Panel 
erred in its assessment of the exemptions because the Panel failed to examine whether the nature 
and scope of these exemptions establish a "disco nnect" between the origin information collected 
by producers and processors of livestock and th e origin information conveyed to consumers on 
labels that is so disproportionate as to support the conclusion that the detrimental impact of the amended COOL measure reflects discrimination. For Mexico, the United States' arguments lack 
merit because, "even if" more detailed and accurate origin information is now provided to 
consumers of meat sold in retail establishments, there is still no origin information at all provided to consumers with respect to the majority of beef products consumed in the United States.
127 
Thus, there continues to be a significant "disco nnect" between, on the one hand, the information 
collected by producers and processors of livestock and, on the other hand, the information 
ultimately conveyed to consumers of meat products in the US market. 
2.95.  Mexico also addresses the United States' claim that the Panel's conclusions concerning the 
exemptions are legally erroneous because the Panel failed to undertake an evaluation of the 
operation of the exemptions in the US market, and, in particular, the United States' allegation that 
the Panel erred by not making a finding that the ex istence of the exemptions provides an incentive 
to establish distribution channels to avoid cost related to the COOL requirements.128 Mexico alleges 
that the United States is attempting to shift its own burden of proof to the complainants or the Panel. Noting the United States' argument that the Panel committed legal error because it did not evaluate evidence and make sufficient findings in relation to the US market, Mexico points out that 
the United States did not present any arguments or evidence to the compliance Panel that called 
                                               
125 Mexico's appellee's submission, para. 69 (referring to Panel Reports, para. 7.272). 
126 Mexico's appellee's submission, para . 71 (quoting Appella te Body Report, US – Clove Cigarettes , 
fn 431 to para. 221). 
127 Mexico's appellee's submission, para. 76. 
128 Mexico's appellee's submission, para. 77 (quoting United States' appellant's submission, para. 246). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 into question the findings of the panel and the Appellate Body in the original disputes concerning 
the effect of the exemptions from the COOL requir ements. Mexico highlights that it did not bear a 
burden to refute an argument that the United States did not raise.  
2.96.  In any event, Mexico considers that th e evidence on the record does not support the 
United States' arguments. In this regard, the Panel made findings, based on undisputed evidence, 
that Mexican cattle entering the United States have an average age of six to seven months, and that the "slaughter age" of cattle is approximately 22 months.
129 According to Mexico, the 
United States does not attempt to explain how the first US purchaser of Mexican cattle entering 
the United States could know, 15 to 16 months prio r to the slaughter of the animal by unrelated 
companies, whether the animal's meat would be dest ined for sale in entities that are exempt, or 
not exempt, from the COOL requirements.  
2.3.2  Article 2.2 of the TBT Agreement 
2.97.  Mexico requests the Appellate Body to reject the United States' appeal of the Panel's 
findings relating to the clause "the risks non-fulfilment would create" in Article 2.2 of the 
TBT Agreement. Mexico submits that the Panel's interpretation of this clause is correct. In Mexico's 
view, "taking account of the risks non-fulfilment would create" requires, as part of the weighing and balancing process, an assessment of whether there is proportionality between the trade-
restrictiveness of technical regulations and the risks non-fulfilment would create.  
2.98.  Mexico contends that the Appellate Body's reference to an "equivalent contribution" in US – 
Tuna II (Mexico)  is qualified by reference to the phrase "taking account of the risks non-fulfilment 
would create" in Article 2.2.
130 In this regard, Mexico draws a distinction with the unqualified use 
of the term "equivalent contribution" in Article XX of the GATT 1994 and Article XIV of the General 
Agreement on Trade in Services (GATS). On that ba sis, the degree of contribution exhibited by a 
proposed alternative measure need not be the same as the challenged measure. Instead, its 
degree of contribution may be lesser where this is justified in the light of the risks non-fulfilment 
would create. 
2.99.  Contrary to the interpretation advanced by the United States, Mexico presents a series of 
reasons suggesting that the meaning of "taking a ccount of the risks non-fulfilment would create" 
should not be equated with the meaning of "at the levels it considers appropriate" in the sixth preambular recital of the TBT Agreement. First, Ar ticle 2.2 is not expressly qualified by the clause 
"at the levels it considers appropriate". Second, the elements listed in the final sentence of 
Article 2.2 are not consistent with an approach that equates "taking account of the risks 
non-fulfilment would create" with "at the levels it considers appropriate". Third, the phrase "taking account of the risks non-fulfilment would create" is unique to the necessity test in Article 2.2, and 
thus the inclusion of this clause must mean something other than the level of protection 
considered appropriate by a Member. Fourth, the clause "at the levels it considers appropriate" in the sixth preambular recital of the TBT Agreement is subject to the relevant measures being 
"otherwise in accordance with the provision of [the TBT] Agreement", which suggests that it is 
subject to the disciplines of Article 2.2, incl uding the phrase "taking account of the risks 
non-fulfilment would create".  
2.100.  Mexico further contends that the Panel's interpretation does not inappropriately interfere 
with Members' right to regulate. Rather, Mexico co nsiders that a Member's "policy space" is limited 
by its obligations under the Marrakesh Agreement Establishing the World Trade Organization (WTO 
Agreement) and the rights of other WTO Members.
131  
                                               
129 Mexico's appellee's submission, para. 86 (quoting Panel Reports, para. 7.242). 
130 Mexico's appellee's submission, para. 99 (referring to Appellate Body Report, US – Tuna II (Mexico) , 
para. 321, in turn referring to Appellate Body Report, US – Gambling , para. 307). See also ibid., para. 107 
(referring to Appellate Body Reports, US – COOL , para. 471, in turn referring to Appellate Body Report, US – 
Tuna II (Mexico) , para. 322). 
131 Mexico's appellee's submission, para. 112 (quoting Original Panel Reports, US – COOL , para. 7.549; 
and referring to Panel Reports, para. 7.485). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.3.3  Articles III:4 and IX of the GATT 1994 
2.101.  Mexico requests the Appellate Body to upho ld the Panel's finding in respect of Article III:4 
of the GATT 1994 and to reject the United States' appeal of that finding. Mexico understands that the United States' argument relating to Article IX of the GATT 1994 is that this provision is part of 
the context in which Article III:4 should be interpreted, and not that compliance with Article IX is a 
defence to a violation of Article III:4. If, however, the United States was raising Article IX as a defence, Mexico submits that this would be prec luded by Article 17.6 of the DSU, which limits 
appeals to issues of law covered in the panel report, because the United States did not raise a 
defence based on Article IX before the Panel.  
2.102.  Mexico disagrees with the United States that Article IX should be considered context 
relevant to the interpretation of Article III:4. Mexico maintains that, while Article III:4 applies to 
internal measures, Article IX applies to imports at the border. Because of this difference in the 
coverage of the two provisions, Article IX is not relevant context for the interpretation of Article III:4. In particular, with regard to the amended COOL measure, Mexico contends that 
Labels A, B, and C are internal measures applying to beef processed from imported cattle within 
the United States, and are therefore not "marks of  origin" in the sense of Article IX. Label D, 
however, could fall within the scope of Article IX because it relates to imported meat. Mexico 
explains that it has not asserted that Label D aspects of the amended COOL measure are 
inconsistent with the covered agreements, and further explains that it is not challenging origin-marking requirements in general, but rather aspects of the amended COOL measure that discourage the use of imported Mexican cattle to produce US beef products. 
2.103.  Furthermore, Mexico emphasizes that Arti cle IX is not an exception to Article III:4, but 
that both provisions apply cumulatively and that Members must comply with both of them simultaneously. In addition, Mexico submits that the United States suggested that, because of 
Article IX of the GATT 1994, the analysis of wh ether the amended COOL measure denies national 
treatment to imported livestock should be diffe rent under Article III:4 of the GATT 1994 and under 
Article 2.1 of the TBT Agreement, and that this im plied that Article IX was not relevant context for 
the interpretation of Article 2.1. However, in the original proceedings, the Appellate Body found 
Article IX of the GATT 1994 to be relevant cont ext for the TBT Agreement, in finding that the 
objective of the original COOL measure was le gitimate within the meaning of Article 2.2.
132 
Because, at the same time, the Appellate Body did not find that its interpretation of Article 2.1 
should be influenced by Article IX, Mexico submits that the United States' argument relating to 
Article IX is inconsistent with the Appellate Body's analytical approach in the original proceedings.  
2.3.4  Article XX of the GATT 1994 
2.104.  Mexico requests the Appellate Body to up hold the Panel's finding that the amended COOL 
measure is inconsistent with Article III:4 of the GATT 1994 and to reject the United States' request to find that the Panel erred in not addressing the availability of Article XX of the GATT 1994 as an 
exception with respect to the am ended COOL measure. Mexico highlights that it is the Member 
invoking Article XX that bears the burden to demonstrate that the measure at issue is justified under that provision, and that the United States has not done so in these disputes. Mexico adds that it is inappropriate for the United States to raise a defence under Article XX of the GATT 1994 
on appeal when it did not raise an Article XX defence before the Panel, nor did it invoke Article XX 
as a defence in its Notice of Appeal.  
2.105.  In response to the United States' reference to extraordinary circumstances in the present 
disputes, Mexico submits that there is no change in the circumstances that could support the 
United States' request that the Appellate Body address Article XX. Mexico disagrees with the United States that the findings of the Appellate Body in EC – Seal Products  were unforeseeable. 
Mexico explains that the United States has presented Article XX defences to challenges under 
Article III:4 in prior disputes, and submits that it must, therefore, be assumed that the United States made a considered decision not to raise Article XX, even in the alternative, before 
the Panel in the present case.
133 Moreover, Mexico submits that the findings of the Appellate Body 
in EC – Seal Products  are in line with the Appellate Body report in US – Clove Cigarettes , where 
                                               
132 Mexico's appellee's submission, para. 129 (referring to Appellate Body Reports, US – COOL , 
para. 445). 
133 Mexico's appellee's submission, para. 133 (referring to the US – Shrimp  and US – Gasoline disputes). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the Appellate Body observed that the "balance se t out in the preamble of the TBT Agreement … is 
not, in principle, different from the balance set out in the GATT 1994, where obligations such as national treatment in Article III are qualified by the general exceptions provision of Article XX".
134 
2.106.  Finally, Mexico points out that the fact that the United States has not specified which of the 
subparagraphs of Article XX of the GATT 1994 it would wish to rely on as a defence makes it 
impossible to follow the specific sequence of analys is prescribed by the Appellate Body with regard 
to Article XX, i.e. first assessing whether the relevant subparagraph would provide provisional 
justification to the measure, and then whether the same measure would meet the requirements of 
the chapeau of Article XX of the GATT 1994. Mexico em phasizes that this omission affects Mexico's 
due process right to rebut that defence.  
2.3.5  Article XXIII:1(b) of the GATT 1994 
2.107.  Mexico submits that the Panel correct ly found that its non-violation claim under 
Article XXIII:1(b) of the GATT 1994 was within its terms of reference. In Mexico's view, a "measure taken to comply" that results in the non-violation nullification or impairment of a benefit 
that accrues to a party under the GATT 1994 is no less inconsistent with the GATT 1994 than a 
measure that results in the violation of one or more provisions. The mere existence of Article XXIII:1(b) indicates that the application of a measure does not need to result in the 
violation of a provision in order to be considered  inconsistent with the GATT 1994, if it otherwise 
nullifies or impairs a benefit accruing to a Member under that agreement.  
2.108.  Mexico further contends that the factual findings made by the Panel provide a sufficient 
basis for the Appellate Body to complete the legal analysis and find that the amended COOL 
measure nullifies or impairs benefits accruing to Mexico within the meaning of Article XXIII:1(b) of 
the GATT 1994. In this respect, Mexico contends that it was uncontested that the amended COOL measure is being applied by the United States; that the United States' WTO tariff concessions for 
cattle are within the meaning of the term "benefit accruing" in the sense of Article XXIII:1(b) of 
the GATT 1994 and Article 26.1 of the DSU; and that there was no compelling evidence to confirm that the amended COOL measure could have been  reasonably anticipated before its adoption.
135 
2.4  Claims of error by Canada – Other appellant 
2.4.1  Article 2.1 of the TBT Agreement 2.109.  Canada does not take issue with the Panel's conclusion that the amended COOL measure is 
inconsistent with Article 2.1 of the TBT Agreement; however, Canada requests the Appellate Body 
to modify certain aspects of the Panel's analysis under Article 2.1. In particular, Canada alleges 
that the Panel erred in its analysis by failing to assess appropriately the relevance of Labels D and E, as well as the prohibition of a trace-back system, for the determination of whether the 
detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory 
distinctions. 
2.4.1.1  The Panel's analysis of Label D  
2.110.  Canada requests the Appellate Body to reverse the Panel's finding that the COOL 
requirements applicable to Label D do not demonstrate that the detrimental impact of the amended COOL measure reflects discrimination proh ibited by Article 2.1 of the TBT Agreement.  
2.111.  Canada contends that the labelling requirements for Label D, together with the 
informational shortcomings identified by the Panel with respect to Labels B and C, contribute to a 
labelling regime in which the only information that can be relied on as invariably accurate is the information conveyed on Label A – i.e. information in respect of livestock that were born, raised, 
and slaughtered in the United States. Thus, the purp orted intention of the United States "to ensure 
[that] label information accurately reflects the origin of muscle cut covered commodities" is belied by the fact that a perfect consumer, who is fully in formed of the meaning of different categories of 
                                               
134 Mexico's appellee's submission, para. 134 (quoting Appellate Body Report, US – Clove Cigarettes , 
para. 96). 
135 Mexico's appellee's submission, para. 144 (referring to Panel Reports, paras. 7.675, 7.690, 
and 7.712). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 labels under the amended COOL measure, can only be assured of receiving complete and accurate 
information when purchasing Category A muscle cuts.136 This discrepancy, according to Canada, 
exposes the arbitrary and unjustifiable character of  the discrimination against Canadian livestock. 
Accordingly, the Panel erred by dismissing the relevance of Label D for its analysis of whether the 
detrimental impact of the amended COOL measure re flects discrimination prohibited by Article 2.1 
of the TBT Agreement. 
2.112.  Canada observes that the Panel dismissed the relevance of Label D on the following 
grounds: (i) that the complainants had not provided evidence of Category D animals that were not 
born and raised in the same foreign country in which they were slaughtered; (ii) that there existed only a small portion of Category D muscle cuts in the US market; and (iii) that there was no claim that Label D creates any detrimental impact on imported livestock.
137 
2.113.  With respect to the Panel's dismissal of the relevance of Label D on the ground that the 
m a r k e t  s h a re  o f  C a t e g o ry  D  m u s c l e  c u t s  i n  t h e  U S  m a r k e t  i s  s m a l l ,  C a n a d a  r e c a l l s  t h a t  i t  h a d  explained to the Panel that Canada imports tens of thousands, and sometimes hundreds of 
thousands, of cattle annually and that, when feed is cheaper in Canada than in the United States, 
economic incentives exist to import US animals th at can then be used to produce muscle cuts that 
are then available for export to the United States. The statistics submitted to the Panel 
demonstrate that Canada exports between  500,000-860,000 pounds of beef, and 630,000-
710,000 pounds of pork, to the United States on an  annual basis. Although there is no tracing of 
the specific meat produced from imported animals in Canada, it is "virtually certain" that some of the meat that is exported to the United States is produced from animals that were born and/or 
raised in the United States.
138 In addition, under appropriate market conditions, "both the flow of 
U.S. livestock to Canada and Canadian meat to the U.S. would increase".139 
2.114.  Canada further contends that the Panel improperly faulted Canada for failing to provide 
evidence of Category D animals that were not born and raised in the country in which they were 
slaughtered. As the Panel observed, Canada does not track the life histories of animals. However, 
in the light of the export volumes of meat from Canada to the United States, and the "sometimes 
significant imports of livestock", it is "reasonable" to infer that at least some Category D meat 
from Canada is obtained from animals not born and raised in Canada.140 In any event, Canada 
submits that, by requiring positive evidence of Ca tegory D animals that were not born and raised 
in the country in which they were slaughtered, th e Panel placed undue importance on "actual trade 
effects" for the purposes of its analysis under Article 2.1, "despite having previously acknowledged 
that 'there is no need to verify actual trade e ffects to dispose of claims under [TBT] Article 2.1'".141 
2.115.  Canada also takes issue with the Panel's ex clusion of Label D from its analysis of whether 
the detrimental impact of the amended COOL measure reflects discrimination prohibited by 
Article 2.1 of the TBT Agreement on the ground  that Canada had not challenged Label D as 
causing a detrimental impact on Canadian livestock. According to Canada, whether an aspect of a 
challenged technical regulation is responsible for the detrimental impact on imported products is 
not determinative of its relevance to the analysis of the legitimacy of regulatory distinctions under Article 2.1. Instead, the "key determinant" is whether an element of the challenged technical 
regulation is probative of the existence of arbitrary or unjustifiable discrimination or an absence of 
even-handedness.
142 
2.4.1.2  The Panel's analysis of Label E  2.116.  Canada requests the Appellate Body to find that the Panel committed legal errors and 
acted inconsistently with Article 11 of the DSU in concluding that Label E does not support the 
conclusion that the detrimental impact of the amended COOL measure reflects discrimination prohibited by Article 2.1 of the TBT Agreement. Canada notes that, on the one hand, the amended 
COOL measure imposes stringent recordkeeping and verification requirements on upstream 
                                               
136 Canada's other appellant's submission, para. 159 (quoting 2013 Final Rule, p. 31372). 
137 Canada's other appellant's submission, para. 158. 
138 Canada's other appellant's submission, para. 160. 
139 Canada's other appellant's submission, para. 160. 
140 Canada's other appellant's submission, para. 161. 
141 Canada's other appellant's submission, para. 162 (quoting Panel Reports, para. 7.183). 
142 Canada's other appellant's submission, para. 162. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 producers of livestock used to produce domestic be ef trimmings, while, on the other hand, Label E 
conveys inaccurate origin information. Canada submits that the operation of the COOL requirements as they relate to Label E, therefore, demonstrate that the amended COOL measure is inconsistent with Article 2.1 of the TBT Agreement. 
2.117.  First, Canada submits that the Panel erred by relying on the different forms of processing 
undergone by muscle cuts and ground meat as support for the proposition that Label E should be excluded from the analysis of whether the de trimental impact of the amended COOL measure 
reflects discrimination. Canada explains that, alth ough the processing of meat differs depending on 
whether the final product is a muscle cut or ground meat, the processing of both products involves the input of livestock and results in the production of meat products. The Panel failed to explain why the different forms of processing undergone by muscle cuts and ground meat supports its 
conclusion with respect to Label E. Canada adds that the Panel's approach with respect to Label E 
is inconsistent with the Panel's correct approach to the exemptions under the amended COOL measure. In particular, in assessing whether the detrimental impact of the amended COOL 
measure stems exclusively from legitimate regulatory distinctions, the Panel took into account the 
exemption of muscle cuts of meat that are ingr edients in processed food items from the COOL 
requirements. For Canada, it was therefore "unreasonable" for the Panel to rely on the different 
forms of processing undergone by muscle cuts and ground meat as a reason to exclude Label E 
from its analysis under Article 2.1.
143 
2.118.  Second, Canada contends that the Panel erred by relying on the diverse origins of 
"trimmings" involved in the processing of ground meat as a justification for its exclusion of Label E 
from its analysis under Article 2.1. Canada explains  that ground beef, like muscle cuts of beef, is 
produced in the United States from inputs of muscle cuts of diverse origins. Canada submits that the fact that, in recent years, producers in the United States have apparently sourced trimmings 
from a slightly larger number of countries than is the case with respect to livestock used to 
produce muscle cuts is not a factor that supports the Panel's exclusion of Label E from its analysis under Article 2.1. 
2.119.  Third, Canada submits that the Panel's conclusion that the complainants did not submit 
arguments in this compliance dispute as to the upstream burdens relating to ground meat "reveals that [the Panel] disregarded evidence and argu ments submitted by Canada on precisely this 
point."
144 Canada submits that the Panel, thus, acted inconsistently with its mandate under 
Article 11 of the DSU. 
2.4.1.3  The prohibition of a trace-back system  2.120.  Canada requests the Appellate Body to find that the Panel erred in its assessment of the 
relevance of the prohibition of a trace-back system under the amended COOL measure for the 
analysis of whether the detrimental impact of th e amended COOL measure reflects discrimination 
prohibited by Article 2.1 of the TBT Agreement.  
2.121.  Canada recalls that it had explained to the Panel that the mandatory identification of 
animals is an integral component of a mandatory trace-back system, and that the amended COOL measure effectively prohibits such a system. Fo r Canada, this element of the amended COOL 
measure is a component of the "design" and "architecture" of that measure, which affects its 
"operation". Canada submits that the trace-back pr ohibition should therefore have been "carefully 
scrutinize[d]" by the Panel in accordance with th e guidance provided by the Appellate Body under 
Article 2.1.
145 
2.122.  Canada submits that the Panel erred in dismissing Canada's arguments concerning the 
relevance of the trace-back prohibition for the anal ysis under Article 2.1 on the basis of an alleged 
failure of Canada to "provide specific arguments or evidence … as to the nature of the prohibited 
                                               
143 Canada's other appellant's submission, para. 166. 
144 Canada's other appellant's submission, para. 168 (referring to Panel Reports, para. 7.280; and 
American Meat Institute (AMI) Fact Sheet, "Quest ions and Answers about Ground Beef, Hamburger and 
Patties" (June 2011) (Panel Exhibit CDA-121); Canada's first written submission to the Panel, fn 93; second 
written submission to the Panel, paras. 41-42; and comments on responses to Panel questions, para. 2). 
145 Canada's other appellant's submission, para . 175 (referring to Appellate Body Reports, US – COOL , 
para. 271, in turn referring to Appellate Body Report, US – Clove Cigarettes , para. 182). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 trace-back measure."146 I n  t h i s  r e g a r d ,  C a n a d a  a s s e r t s  t h a t  i t  i s  c l e a r  f r o m  t h e  t e x t  o f  t h e  
amended COOL measure that no particular trace-back measure is prohibited. Rather, "the prohibition applies to a key component – mandatory identification – of any trace-back measure, 
thereby precluding the implementation of the origin labelling requirements through such a 
measure."
147 
2.123.  Canada further submits that the Panel erred in dismissing Canada's argument on the 
grounds that it was "limited to whether the trace-back prohibition necessitates the same (or 
similar) audit and verification system of the amen ded COOL measure" and that it "reverts focus to 
the claimed deficiencies of the amended COOL measure's labelling rules".148 As Canada noted 
before the Panel, the COOL statute requires that persons subject to audits provide the Secretary of 
Agriculture with verification of the origin of covered commodities and that origin information be 
maintained by persons supplying covered commodities to retailers. A trace-back system and the 
amended COOL measure's system of recordkeeping and verification could both meet that origin verification requirement. However, the trace-ba ck prohibition constitutes an explicit choice 
between these two systems in favour of the recordkeeping and verification system that 
discriminates against Canadian livestock. Canada contends that this choice between the two systems is relevant to the analysis under Article 2.1 because it strongly influences the "design" 
and "operation" of the amended COOL measure and reflects discrimination. Moreover, Canada 
asserts that the existence of an alternative meas ure that would not cause discrimination – i.e. a 
trace-back system – is evidence of arbitrary and unjustifiable discrimination, particularly where the 
non-discriminatory alternative measure is prohibited. 
2.4.2  Article 2.2 of the TBT Agreement 
2.4.2.1  Introduction 2.124.  Canada requests the Appellate Body to reve rse the Panel's conclusion that Canada failed to 
make a prima facie  case that the amended COOL measure is more trade restrictive than 
necessary, "taking account of the risks non-fulfilment would create".
149 Canada alleges that the 
Panel made a series of errors in respect of the interpretation and application of Article 2.2 of the 
T B T  A g r e e m e n t ,  a n d  i n  f a i l i n g  t o  m a k e  a n  o b j e ctive assessment of the matter before it, that 
warrant the reversal of the Panel's conclusion in this regard. First, Canada submits that the Panel erred in its analysis of the degree of contribu tion made by the amended COOL measure to its 
objective in two ways, namely: (i) by making a legal error in excluding Labels D and E from its 
analysis; and (ii) by failing to make an objective assessment of the matter at issue pursuant to 
Article 11 of the DSU. Second, Canada argues that the Panel erred in its articulation of the legal test under Article 2.2 of the TBT Agreement, both in general terms, as well as specifically in 
respect of the phrase "taking account of the risks non-fulfilment would create". Third, Canada 
claims that the Panel erred in concluding that it could not assess the gravity of the consequences of non-fulfilment of the amended COOL measure to its objective. Fourth, Canada claims that the 
Panel erred by failing correctly to "tak[e] account of the risks non-fulfilment would create" in its 
analysis of Canada's claims, including in respect of its first and second proposed alternative measures.  
2.125.  With regard to the Panel's analysis of "the risks non-fulfilment would create", Canada 
advances two alternative positions. First, Canada considers that the Panel erred in finding that 
Canada failed to make a prima facie  case that the first and second proposed alternative measures 
would contribute to a degree equivalent to that  of the amended COOL measure. Second, in the 
alternative, Canada argues that the Panel failed to conclude that the significantly lower degree of 
trade-restrictiveness of the first and second proposed alternative measures counterbalances the difference in their degrees of contribution vis-à-vis the amended COOL measure. Canada requests 
the Appellate Body to complete the legal analysis of its claims under Article 2.2 of the 
TBT Agreement in respect of its first and second proposed alternative measures. 
                                               
146 Canada's other appellant's submission, para. 176 (quoting Panel Reports, para. 7.281). 
147 Canada's other appellant's submission, para. 176. (emphasis original) 
148 Canada's other appellant's submission, para. 177 (quoting Panel Reports, para. 7.281). 
149 Canada's other appellan t's submission, para. 23. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.126.  Separately, Canada requests the Appellate Body to find that the Panel erred in the burden 
of proof that it applied in respect of Canada's third and fourth proposed alternative measures. Canada does not request the Appellate Body to complete the legal analysis in respect of these proposed alternative measures. 
2.4.2.2  The legal test under Ar ticle 2.2 of the TBT Agreement  
2.127.  Canada claims that the Panel erred in articulating the legal test under Article 2.2 of the 
TBT Agreement, both generally as well as specifically in respect of the phrase "taking account of 
the risks non-fulfilment would create". 
2.128.  In respect of the Panel's articulation of the legal test generally, Canada claims that the 
Panel failed to indicate that the amended COOL measure's degree of contribution to a legitimate 
objective, its trade-restrictiveness, and the natu re of the risks at issue and the gravity of the 
consequences that would arise from non-fulfilment of its objective, would be assessed in relation 
to each other. Consequently, the Panel failed to describe how these factors are to be weighed and balanced against each other. In addition, Canada asserts that the Panel did not clarify the 
relationship between the "relational" and the "comparative" analyses, in particular, it did not clarify 
that the latter does not necessarily prevail over the former. In this regard, Canada explains that an assessment under Article 2.2 must begin with a "relational" analysis. This includes an analysis of 
the trade-restrictiveness of the challenged measur e, its degree of contribution to a legitimate 
objective, and the risks non-fulfilment of that objective would create. These factors must be assessed individually, in addition to being weighed and balanced against one another. In conducting this "relational" analysis, a panel may then engage in a "comparative" analysis, 
whereby a comparison is conducted with an altern ative measure proposed by a complainant to see 
whether it is less trade restrictive, makes an equivalent contribution to the challenged measure's legitimate objective, and is reasonably available to the respondent Member. Canada contends that 
this kind of "comparative" analysis is a "conceptual tool" that assists in determining whether a 
measure is more trade restrictive than necessary.
150 While the Appellate Body has noted it is not 
always required151, it should not overtake the "relational" analysis when such an analysis is carried 
out. In this regard, Canada draws a distinction with footnote 3 to Article 5.6 of the 
SPS Agreement, which specifically provides that a violation exists if there is a valid alternative measure that is significantly less trade restrictive. 
2.129.  In respect of the interpretation of the phrase "taking account of the risks non-fulfilment 
would create", Canada advances two claims of error in arguing that the Panel adopted an "overly 
narrow[]" approach.
152 First, Canada claims that the Panel wrongly found the importance of the 
values or interests underlying the legitimate objective to be irrelevant in "taking account of the 
risks non-fulfilment would create". In Canada's view, there is a direct correlation between the 
relative importance of the values or interests be ing protected and the gravity of the consequences 
of not fulfilling the measure's objective. In particul ar, the more important the values or interests at 
stake, the higher the gravity of the consequences of non-fulfilment. In the present case, the fact 
that no harm would be caused to consumers by not receiving the origin information at issue is relevant to assessing the gravity of the consequences of the non-fulfilment of the amended COOL measure's objective. 
2.130.  Second, Canada contends that the Pane l wrongly dismissed the design, structure, and 
architecture of the amended COOL measure as elem ents that may shed light on the gravity of the 
consequences of not fulfilling its objective. In Canada's view, the design, structure, and 
architecture of a measure may contain elements that put the risks into perspective, and may even 
provide an indication of how the Member taking the measure perceives those risks. In the present 
case, Canada contends that certain elements of the amended COOL measure, such as the 
exclusion of a considerable proportion of beef and pork from the coverage of the measure and 
allowing that less accurate information be provided on ground meat (Label E) demonstrate that the United States itself does not consider the consequences of non-fulfilment to be grave. 
                                               
150 Canada's other appellant' s submission, para. 37 (quoti ng Appellate Body Report, US – Tuna II 
(Mexico) , para. 320). 
151 Canada's other appellant's submission, para. 50 (referring  to Appellate Body Report, US – Tuna II 
(Mexico) , fn 647 to para. 322). 
152 Canada's other appellan t's submission, para. 92. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.131.  In Canada's view, these legal errors of the Panel led to the Panel erroneously concluding 
that it could not assess the gravity of the consequences of non-fulfilment. Had the Panel applied the correct legal test, it would have found the conseq uences of non-fulfilment to be not particularly 
grave. For Canada, this is because the objective of providing origin information does not reflect a 
value of particularly high importance but, rath er, serves no further purpose beyond satisfying 
parochial interests of certain consumers. Moreover , the design, structure, and architecture of the 
amended COOL measure shows that, for the United States itself, the fact that consumers may not 
receive meaningful information on origin does not constitute a grave consequence, because the 
covered products represent only a small fraction of all beef and pork sold in the United States, and a significant portion is inaccurately labelled (i.e. ground meat). In addition, Canada submits that the Panel failed to take into account that there was no market failure regarding the provision of 
country of origin information, and that thus the market would provide origin information if a 
sufficient number of consumers highly valued such information. The Panel's error, in that regard, was compounded by its mischaracterization of the panel's and Appellate Body's findings in respect 
of consumer demand in the original proceedings. Thus, Canada argues that its arguments and 
evidence demonstrate that the consequence arising from the non-fulfilment of the amended COOL measure's objective would not be particularly grave, which suggests that the Panel erred in 
concluding that it could not assess the gravity of the consequences of non-fulfilment. 
2.4.2.3  The degree of contribu tion made by the amended COOL  measure to its objective  
2.132.  Canada requests the Appellate Body to find that the Panel's exclusion of Labels D and E in 
its assessment of the amended COOL measure's degr ee of contribution to its objective constitutes 
a legal error. Canada further claims that, in spite of its statement that it would exclude Labels D 
and E from the assessment of the contribution of the amended COOL measure, the Panel nonetheless referred to a range of percentages of  beef consumed in the United States that 
includes beef bearing either Label D or E. In  doing so, Canada submits that the Panel acted 
inconsistently with Article 11 of the DSU.  
2.133.  Canada argues that Labels D and E are "core features" of the impugned measure.
153 
Therefore, Labels D and E should have been taken into account in the assessment of the 
measure's degree of contribution and as part of the Panel's overall "relational" analysis to determine the "necessity" of the measure under Article 2.2 of the TBT Agreement.  
2.134.  Canada contends that the Panel's concern that including Labels D and E in its assessment 
of the amended COOL measure's degree of contri bution to its objective "could prejudice" the 
"comparative" analysis under Article 2.2 is unfounded.
154 This is because, in Canada's view, the 
conclusions yielded from the "relational" analysis on the relevant aspects of the amended COOL 
measure are not to be individually compared to those of proposed alternatives. Rather, the 
subsequent "comparative" analysis involves a comparison between the amended COOL measure and proposed alternatives. Further, the inclusion of Labels D and E in the "relational" analysis 
would not prejudice the "comparative" analysis because they are constant under both the 
impugned measure and the proposed alternatives. 
2.135.  In respect of its claim under Article 11 of the DSU, Canada contends that the Panel 
included meat bearing Labels D and E in its assessment of the proportion of muscle cuts that bear 
labels under the amended COOL measure, despite having determined that those labels were to be 
excluded.
155 In Canada's view, in assessing the contribution of the amended COOL measure to its 
objective, the Panel should have had regard to the evidence before it that demonstrated that only 
between 16.3% and 24.5% of beef consumed in  the United States are muscle cuts bearing 
Labels A-D, while also recognizing that Label D conveys incomplete information.156 According to 
Canada, the Panel's failure in this respect exaggerated the extent of the amended COOL measure's 
degree of contribution to its objective. The Panel should have taken into account in its analysis the 
incomplete character of the information provided by Label D and the likely inaccurate nature of the information conveyed by Label E. Had the Pane l taken these elements of the amended COOL 
measure into account, and properly characterized the degree of contribution of the amended COOL 
measure to its objective, it could not have concluded that it makes a "considerable but necessarily 
                                               
153 Canada's other appellan t's submission, para. 82. 
154 Canada's other appellant's submission, para. 83 (quoting Panel Reports, para. 7.345). 
155 Canada's other appellan t's submission, para. 86. 
156 Canada's other appellant's su bmission, para. 87 (referring to Panel Reports, para. 7.258). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 partial contribution".157 Rather, Canada argues that "limited" would have been a more appropriate 
characterization of the amended COOL measure's degree of contribution, particularly since meaningful consumer information was provided on between less than one fifth and one quarter of beef and pork consumed in the United States.
158 
2.4.2.4  The first and second proposed alternative measures  
2.136.  As a result of its failure to find that not fulfilling the amended COOL measure's objective 
would not be grave, Canada claims that the Panel failed correctly to "tak[e] account of the risks 
non-fulfilment would create" in its analysis of Canada's first and second proposed alternatives.159 
In particular, Canada argues that the Panel should have found that, in "taking account of the risks non-fulfilment would create", the first and second proposed alternative measures would make a contribution to the amended COOL measure's objective that is at least equivalent to that made by 
the amended COOL measure itself. While those alternatives provide less origin information or less 
accurate origin information, they cover a significantly wider range of products. Canada's claim, in this regard, rests on the assertion that an al ternative measure need not necessarily achieve 
precisely the same contribution or degree of fulfilment of the measure's objective in order to 
establish a violation of Article 2.2 of the TBT Agr eement. In that regard, Canada argues that less 
grave consequences arising from non-fulfilment should make it easier to accept an alternative 
measure's degree of contribution as "equivalent". 
2.137.  In Canada's view, it is unclear what th e Panel meant when it stated that it could not 
determine the "specific implications" of the risks of non-fulfilment for the interplay between less information and more extensive product coverage under the first proposed alternative measure, or 
less accurate information and more extensive coverage under the second proposed alternative 
measure.
160 However, to the extent that the reference to distinct "implications" means that the 
Panel considered that the risks would not be the same under the amended COOL measure and 
each of the proposed alternatives, Canada acknow ledges that the gravity of the consequences may 
vary depending on the extent to which a measure fulfils its objective.161 However, this would have 
no impact in the case at hand, because the consequences of non-fulfilment of the amended COOL 
measure's objective are not particularly grave regardless of the degree of contribution. 
Furthermore, Canada contends that the Panel erred in considering "the nature of the information being conveyed and the method of conveyance" in its assessment of gravity, since these elements 
relate to the degree of contribution of the measure to its objective, and not to the risks non-
fulfilment would create.
162 In any event, the fact that the Panel found it "difficult to establish the 
exact implications"163 for providing consumers less information or less accurate information on 
labels was not a justification for the Panel to "shirk its responsibility" to reach a finding.164 
2.138.  In the alternative, Canada argues that, ev en if the first and second proposed alternative 
measures do not contribute to the amended COOL measure's objective to an equivalent degree, the significantly lower degree of trade-restrictiveness of these alternatives should nonetheless 
counterbalance the difference in their respective degrees of contribution. In this regard, had the 
Panel conducted a proper "relational" analysis, it would have concluded that the high degree of trade-restrictiveness of the amended COOL measure is out of all proportion to its very limited 
contribution to its objective and the benign nature of the risks and the "non-gravity" of the 
consequences arising from non-fulfilment.
165 On this basis, Canada argues that the Panel ought to 
have found that the amended COOL measure is more trade restrictive than necessary under 
Article 2.2 of the TBT Agreement, even in the ab sence of a "comparative" analysis with proposed 
alternatives. 
                                               
157 Canada's other appellant's submission, para. 88 (quoting Panel Reports, para. 7.356).  
158 Canada's other appellan t's submission, para. 89. 
159 Canada's other appellant's submission, para. 116. 
160 Canada's other appellant's submission, paras. 119 and 123 (quoting Panel Reports, paras. 7.488 
and 7.501). 
161 Canada's other appellant's submission, para. 119. 
162 Canada's other appellant's submission, para. 120 (quoting Panel Reports, paras. 7.489). 
163 Canada's other appellant's submission, para. 120 (quoting Panel Reports, paras. 7.489). 
164 Canada's other appellant's submission, para. 120. 
165 Canada's other appellant's submission, para. 128. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.139.  In any event, Canada argues that, even taking into account a "comparative" analysis with 
proposed alternatives exhibiting a degree of cont ribution that is less than equivalent, the Panel 
should have found an acceptable trade-off betw een the limited degree of contribution of the 
amended COOL measure and the significantly lower degree of trade-restrictiveness of the first and 
second proposed alternatives. Thus, even if the A ppellate Body were to conclude that the first and 
second proposed alternatives do not make an equivalent degree of contribution to the amended COOL measure's objective, Canada nonetheless requests the Appellate Body to reverse the Panel's 
c o n c l u s i o n  t h a t  C a n a d a  f a i l e d  t o  m a k e  a  prima facie  case that the amended COOL measure 
violates Article 2.2 of the TBT Agreemen t, and to complete the legal analysis. 
2.4.2.5  The third and fourth proposed alternative measures  2.140.  Canada requests the Appellate Body to find  that the Panel erred in setting an overly high 
burden of proof in respect of the third and fourth proposed alternatives.
166 Canada requests the 
Appellate Body to reverse the Panel's finding that, for the purpose of making a prima facie  case 
that an alternative measure is reasonably availabl e, a complainant bears the burden of providing a 
cost estimate of the alternative measure or evidence substantiating the likely magnitude of the 
costs that would be associated with the alternative measure.167 However, Canada does not request 
the Appellate Body to complete the legal analysis.168 
2.141.  Canada argues that the appropriate level of precision for describing alternatives can be 
elucidated by reference to their twofold purpose. First, the trade-restrictiveness of the proposed 
alternative and any "conceptual limitations" in its ability to make an equivalent contribution to the stated objective need to be identified in order to facilitate a comparison with the challenged 
measure under Article 2.2 of the TBT Agreement.
169 Second, the capacity of a Member to 
implement the alternative measure, in financial and technical terms, needs to be described in order to demonstrate its reasonable availability. This might include a showing that the burden of 
the alternative on the industry concerned does not jeopardize its economic viability, nor its ability 
or willingness to comply. In Canada's view, unless there are "real doubts" as to the capacity of the Member and its industry to implement the alternative, its identification does not require a detailed 
description.
170  
2.142.  Canada claims that the Panel erred in imposing an unreasonably high burden by requiring 
a description of the third and fourth proposed alternatives with an unnecessarily high level of precision, namely, of "how" they would "be implemented in the United States", and requiring an 
"actual, concrete proposal".
171 Although the Panel appears to have set out a standard that 
considered whether the alternative is "merely theoretical in nature"172, a review of the Panel's 
approach demonstrates that it sought information and evidence disproportionate to such an 
inquiry, and which would involve "massive research and extensive and expensive expert reports of 
a sort never previously required in WTO litigation when reviewing possible alternative measures".
173 Canada contends that it provided sufficient descriptions of the third and fourth 
proposed alternatives to fulfil the dual purpose of identifying such alternatives, and thus to 
facilitate a comparison under Article 2.2 and to make a prima facie  case that they are reasonably 
available. 
2.143.  Canada claims that the Panel erroneously interpreted the Appellate Body's findings in 
China – Publications and Audiovisual Products  a s  s u p p o r t  f o r  i t s  f i n d i n g s  o n  t h e  n a t u r e  o f  t h e  
burden of proof that fell on the complainants. Whereas the Panel referred to these findings for the proposition that the magnitude of the associate costs was to be provided by the complainants, the 
Appellate Body in China – Publications and Audiovisual Products  found that China, the respondent 
                                               
166 Canada's other appellant's submission, para. 132. 
167 Canada's other appellant's submission, para. 154 (referring to Panel Reports, paras. 7.556 
and 7.603). 
168 Canada's other appellant's submission, para. 132. 
169 Canada's other appellant's submission, para. 134 (quoting Appellate Body Reports,  EC – Seal 
Products , para. 5.267). 
170 Canada's other appellant's submission, para. 139. 
171 Canada's other appellant's submission, para. 141 (quoting Panel Reports, paras. 7.553, 7.586, 
and 7.602). 
172 Canada's other appellant's submission, para. 142 (quoting Panel Reports, para. 7.506, in turn 
quoting Appellate Body Reports, Brazil – Retreaded Tyres , para. 156; and US – Gambling , para. 308). 
173 Canada's other appellant's submission, para. 143. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 in that case, bore the burden to substantiate the likely nature or magnitude of associate costs.174 
Although the Appellate Body's findings in that case related to Article XX(a) of the GATT 1994, 
Canada submits that a complainant's burden under Article 2.2 of the TBT Agreement should not be 
comparatively heavier. Thus, Canada submits that its description of the third and fourth proposed 
alternative measures was sufficient to enable the Panel to compare the amended COOL measure 
with these alternative measures regarding their trade-restrictiveness and degrees of contribution.  
2.4.3  Article XXIII:1(b) of the GATT 1994 
2.144.  Canada requests the Appellate Body to reverse the Panel's decision to exercise judicial 
economy in respect of Canada's non-violation claim under Article XXIII:1(b) of the GATT 1994, and to complete the legal analysis on the basis of th e legal interpretations and facts established by the 
Panel, unless the Appellate Body upholds the Panel's finding of violation under either Article 2.1 of 
the TBT Agreement or Article III:4 of the GATT  1994. In the event that the Appellate Body 
reverses the Panel's decision to exercise judicial economy, Canada requests the Appellate Body to complete the legal analysis in respect of its non-violation claim by applying the legal 
interpretations of the Panel to the facts as found by the Panel. 
2.5  Claims of error by Mexico – Other appellant 2.5.1  Article 2.1 of the TBT Agreement 
2.145.  Mexico, like Canada, does not take issue with the Panel's conclusion that the amended 
COOL measure is inconsistent with Article 2.1 of the TBT Agreement. However, Mexico appeals certain findings made by the Panel in its analysis of whether the detrimental impact of that measure stems exclusively from legitimate regulatory distinctions. In particular, Mexico claims that 
the Panel erred by failing to assess correctly the relevance of Label E for its analysis of whether 
the detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory distinctions. 
2.5.1.1  The Panel's analysis of Label E  
2.146.  Mexico requests the Appellate Body to find  that the Panel erred in finding that the COOL 
requirements applicable to Label E do not support the conclusion that the amended COOL measure 
is inconsistent with Article 2.1 of the TBT Agreement.  
2.147.  Mexico notes that the Panel observed that Label E had not been shown to demonstrate 
that the amended COOL measure is inconsistent wi th Article 2.1 of the TBT Agreement, and that 
Label E "does not constitute a relevant regulatory distinction of the amended COOL measure for 
the purposes of Article 2.1."
175 For these reasons, the Panel refused to attribute relevance to 
Label E for the purposes of its analysis under Article 2.1. Mexico submits that the Panel's approach with respect to Label E is entirely inconsistent with the Panel's acknowledgement that the analysis 
under Article 2.1 must take into account "the 'overall architecture' of the measure, and 
encompass[es] aspects of the measure that [are] no t themselves 'relevant regulatory distinctions' 
or independent sources of detrimental impact."
176 Indeed, it was on this basis that the Panel 
correctly determined that the exemptions under the amended COOL measure were relevant factors 
to be considered in its analysis under Article 2.1, despite the fact that they did not constitute a relevant regulatory distinction, and were not found to give rise to any detrimental impact on imported products. Mexico submits that the ra tionale for including the exemptions under the 
amended COOL measure in the analysis under Articl e 2.1 also applies to the COOL requirements in 
respect of Label E. More specifically, as a cent ral component of the amended COOL measure that 
applies to a substantial proportion of covered beef  products, the requirements applicable to Label E 
are relevant to the question of whether the de trimental impact of the amended COOL measure 
reflects discrimination prohibited by Article 2.1.  
                                               
174 Canada's other appellant's submission, paras. 144- 146 (referring to Panel Reports, para. 7.599; and 
Appellate Body Report, China – Publications and Audiovisual Products , paras. 327-328). 
175 Mexico's other appellant's submission, para . 186 (quoting Panel Reports, para. 7.207). 
176 Mexico's other appellant's submission, para. 187 (q uoting Panel Reports, para. 7.202 (fns omitted)). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.148.  Mexico asserts that the Panel attempted to validate its exclusion of Label E from its 
assessment of the even-handedness of the amen ded COOL measure on the basis that "the 
production of ground meat entails the processing of 'trimmings' of diverse origin that are ground 
into a final product, and the ground meat la belling rules were adapted to the purchasing, 
inventory, and production practices of US beef grinders."177 According to Mexico, the Panel's 
reasoning is untenable, as different muscle cuts of beef themselves undergo distinct processing methods; yet, the Panel included labelling rules applicable to muscle cuts in its analysis under 
Article 2.1 of the TBT Agreement. Likewise, proces sed beef products and beef products served in 
food service establishments that are exempt from the COOL requirements undergo distinct 
processing methods; yet, the Panel included these exemptions in its analysis under Article 2.1. Mexico submits, accordingly, that the production process for ground meat does not constitute a 
legitimate justification for excluding Label E from the analysis under Article 2.1.  
2.149.  Mexico further contends that the Panel incorrectly interpreted the Appellate Body's findings 
in the original disputes as implying that the Appellate Body had specifically excluded Label E from 
its analysis under Article 2.1 of the TBT Agreement. The passage of the Appellate Body reports 
relied on by the Panel describes the discriminatory effect of the original COOL measure as arising "because the prescribed labels do not expressly identify specific production steps and, in particular 
for Labels B and C, contain confusing or inaccurate origin information, or because the meat or 
meat products are exempt from the labelling requirements altogether."
178 This finding, submits 
Mexico, cannot properly be interpreted as an explicit determination that requirements relating to Label E are irrelevant for the assessment of whether the amended COOL measure is designed and 
applied in an even-handed manner. 
2.5.2  Article 2.2 of the TBT Agreement 2.5.2.1  Introduction 
2.150.  Mexico requests the Appellate Body to reverse Panel's findings and conclusions under 
Article 2.2 of the TBT Agreement, complete the le gal analysis under Article 2.2 and find that the 
amended COOL measure is more trade restrictive than necessary and has the effect of creating 
unnecessary obstacles to international trade in violation of Article 2.2 of the TBT Agreement. 
2.151.  Mexico advances a number of claims of error in requesting the Appellate Body to reverse 
the Panel's conclusion that Mexico failed to make a prima facie  case that the amended COOL 
measure is more trade restrictive than necessary, "taking account of the risks non-fulfilment would 
create". First, Mexico claims that the Panel erred by replacing the weighing and balancing of 
relevant factors in the "relational" analysis with an "exceptional circumstances" test.
179 Second, 
Mexico claims that the Panel erred by failing to include the design and operation of Label E when 
ascertaining the degree of contribution of the amended COOL measure to its objective as part of 
the "relational" analysis. Third, Mexico claims that the Panel erred in its assessment of "the risks non-fulfilment would create". In this regard, Mexico submits that the Panel erred in ascertaining 
the gravity of the consequences that would arise from non-fulfilment of the objective by strictly 
limiting itself to an assessment of consumer interest in country of origin information and consumer willingness to pay for such information, to the exclusion of other relevant considerations including the relative importance of the interests or values furthered by the amended COOL measure, as 
well as its design, structure, and architecture. Mexico also claims, in this regard, that the Panel 
erred under Article 11 of the DSU by failing to make an objective assessment of the evidence before it in respect of consumer demand for or igin information and the design, structure, and 
architecture of the amended COOL measure.  
2.152.  In Mexico's view, these multiple errors of th e Panel in respect of its "relational" analysis of 
the amended COOL measure led to subsequent errors in its "comparative" analysis of Mexico's first 
and second proposed alternative measures, namely, in  failing to find that these alternatives make 
an equivalent degree of contribution to  the amended COOL measure's objective. 
                                               
177 Mexico's other appellant's submis sion, para. 191 (quoting Panel Reports, para. 7.280 (fns omitted)). 
178 Mexico's other appellant's submission, pa ra. 193 (quoting Appellate Body Reports, US – COOL , 
para. 349). 
179 Mexico's other appellant's submission, para. 39 (referring to Panel Reports, para. 7.298). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.153.  Separately, Mexico requests the Appellate Body to find that the Panel erred in the burden 
of proof that it applied in respect of its th ird and fourth proposed alternative measures. 
2.5.2.2  The legal test under Ar ticle 2.2 of the TBT Agreement  
2.154.  Mexico claims that the Panel made a number of errors in its legal interpretation in respect 
of the "relational" analysis and then took an incorrect approach to determining whether the 
amended COOL measure is more trade restrictive than necessary. 
2.155.  In particular, Mexico claims that the Panel erred in narrowing the "relational" analysis step 
of the necessity test under Article 2.2 of the TB T Agreement to an "exceptional circumstances" 
test.180 Mexico points to the Appellate Body's findings in US – Tuna II (Mexico)  and in the original 
proceedings in these disputes that an assessment of "necessity" under Article 2.2 must begin with 
a "relational" analysis, involving a weighing and balancing of the trade-restrictiveness of the 
challenged measure, its degree of contribution to its objective, and the risks non-fulfilment would 
create.181 In Mexico's view, the step of reaching a co nclusion under the "relational" analysis is a 
requisite component of the assessment under Article 2.2. This is because the subsequent 
"comparative" analysis is not directed at the "necessity" of the measure's trade-restrictiveness but, 
rather, functions to confirm the conclusion from the initial "relational" analysis that the measure is necessary by comparing it to proposed altern atives. Mexico draws on the Appellate Body's 
identification in US – Tuna II (Mexico)  of certain circumstances under which a "comparative" 
analysis may not be required to support its understanding that it is possible to yield a conclusion on the necessity of the measure solely under the "relational" analysis.
182 In that regard, while it 
considers the examples identified by the Appellate Body to be "extreme", Mexico notes that the 
use of the qualifier "at least" suggests that thes e were not exclusive or exhaustive examples, and 
that there is "a range of more realistic possibilities" where a "comparative" analysis would be unnecessary on the basis of a definitive finding under the "relational" analysis.
183 Thus, Mexico 
submits that the Panel erred in finding that a "comparative" analysis would only be redundant 
under Article 2.2 in "exceptional" circumstances.184 In response to questioning at the oral hearing, 
Mexico stated that it had modified its position slightly. In particular, Mexico stated that it considers 
in most cases that a "comparative" analysis with alternative measures would be required under 
Article 2.2 of the TBT Agreement, but that a provis ional conclusion should be drawn first under the 
"relational" analysis. 
2.156.  Mexico also claims that the Panel erred in failing to find, based on record evidence before 
it, that the gravity of the consequences that woul d arise from non-fulfilment of the amended COOL 
measure's objective is very low. In particular, Mexico claims that the Panel limited its consideration to evidence on consumer interest in and willingness to pay for origin information, and excluded 
from its consideration the relative importance of the values or interests furthered by the measure, 
and its design, structure, and architecture. Mexico further claims that the Panel failed to make an objective assessment of certain evidence relating to consumer demand that it did consider, in 
violation of Article 11 of the DSU. Mexico requests the Appellate Body to reverse the Panel's 
findings, reassess the evidence on consumer demand, and find the gravity of the consequence of non-fulfilment to be very low, taking into account the very low relative importance of the objective and the very low consumer demand for origin information. Further, notwithstanding these errors of 
the Panel, Mexico notes that the Panel found there to be "some risk" associated with the 
non-fulfilment of the objective, and that the Panel ought to have taken this finding into account in the weighing and balancing process with other relevant factors in both the "relational" and 
"comparative" analyses.
185 
2.157.  Mexico contends, first, that the Panel committed a legal error in limiting itself to 
considering the criterion of consumer demand in its consideration of "the risks non-fulfilment 
would create" to the exclusion of other relevant  factors. While the Appellate Body considered 
consumer demand when assessing "the risks non-fulfilment would create" in the original 
                                               
180 Mexico's other appellan t's submission, para. 39. 
181 Mexico's other appellant's su bmission, para. 40 (referring to Appellate Bo dy Reports, US – Tuna II 
(Mexico) , para. 318; and US – COOL , para. 374). 
182 Mexico's other appellant's su bmission, paras. 41-44 (referring  to Appellate Body Report, US – 
Tuna II (Mexico) , para. 322 and fn 647 thereto). 
183 Mexico's other appellan t's submission, para. 43. 
184 Mexico's other appellant's submission, para. 45 (quoting Panel Reports, para. 7.298). 
185 Mexico's other appellant's submission, para. 64 (quoting Panel Reports, para. 7.417). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 proceedings, the Appellate Body was constrained in its examination by the limited factual findings 
made by the original panel, and did not state th at these findings necessarily reflected the most 
relevant or appropriate criteria for the purposes of the assessment.186 According to Mexico, the 
Panel in the present proceedings failed to explain why only consumer demand ought to be 
determinative of "the risks non-fulfilment would create", to the exclusion of any and all other 
relevant criteria. 
2.158.  Mexico argues that the relative importance  of the values furthered by the measure should 
have been considered because, where those values are relatively important (e.g. protection of 
human health), the gravity of the consequences are correspondingly significant (e.g. injury, death), whereas relatively unimportant values will have correspondingly insignificant consequences. Mexico considers it noteworthy and relevant to the "necessity" test under 
Article 2.2 of the TBT Agreement that the relati ve importance of the values furthered by the 
measure is considered at the beginning of a "necessity" analysis under Article XX of the GATT 1994 and under Article XIV of the GATS. Mexico contends that the relative importance of the values 
furthered by a measure can be ascertained under Article 2.2 of the TBT Agreement comparatively 
vis-à-vis other values that may be more, or less, important. Accordingly, compared to public health and the protection of the environment, and in the light of the low actual demand or general 
indifference towards origin information, the mere provision of such information is not important. 
Accordingly, the gravity of the consequences of not fulfilling the objective of providing consumer information in this case is very low. 
2.159.  In respect of the design, structure, and arch itecture of the measure, Mexico argues that, if 
the gravity of the consequences arising from non-fulfilment were significant, then there would not 
be large exemptions and less-detailed information for certain products. Thus, the very existence of these features in the measure constitutes demonstrative evidence that the gravity of the 
consequences of non-fulfilment is insignificant or trivial. Mexico argues that the Panel's rejection of 
this evidence constitutes a legal error. Mexico further alleges that the Panel's failure to consider this evidence constitutes an inconsistency with Article 11 of the DSU. 
2.160.  Regarding the allegation that the Panel erre d by not making a finding on the gravity of the 
consequences of non-fulfilment, Mexico contends that an objective assessment of the evidence on 
the record relating to consumer demand demonstrates that the gravity of the consequences of non-fulfilment is low. In particular, Mexico alleges that the Panel failed to make an objective 
assessment under Article 11 of the DSU in several ways. First, Mexico claims that the Panel 
erroneously required evidence on consumer demand to be based on contexts exactly equivalent to, 
or consistent with, the specific kinds of information provided by the measure.
187 For example, the 
Panel rejected a study about food values in relation to beef, chicken, and milk because the 
definition of origin was different to that under the amended COOL measure, without explaining why this difference made the study conceptually incompatible. As another example, the Panel 
rejected the evidence adduced in the KSU Revealed Demand study
188 on the basis that there might 
be reasons other than low consumer demand for origin information to explain the steady, relative demand exhibited by the study in respect of covered and exempted products under the original COOL measure. In Mexico's view, this represen ted the dismissal of evidence on the basis of 
speculative reasons as to why it might not be relevant, which is inconsistent with Article 11 of 
the DSU.  
2.161.  Second, Mexico claims that certain evidence of the United States was treated to a different 
standard, and was considered probative notwithstanding that this meant the Panel needed to 
accept certain assumptions to be true. In particular, Mexico contends that the Panel rejected its evidence on the basis that it was not directly responsive to consumer demand, whereas the Panel 
accepted a telephone opinion poll adduced by the Un ited States as relevant evidence, even though 
the poll in question did not test consumer demand for origin information for beef products at all. 
                                               
186 Mexico's other appellant's su bmission, para. 69 (referring to Appellate Bo dy Reports, US – COOL , 
para. 478). 
187 Mexico's other appellant's submis sion, para. 96 (quoting Panel Reports, para. 7.393, in turn referring 
to Panel Exhibit CDA-154, consisting of a Working Paper reporting on a study undertaken by associates of the Department of Agricultural Economic s, Kansas State University entitled, "Food Values Applied to Livestock 
Products" (7 February 2014)). 
188 M.R. Taylor and G.T. Tonsor, "Revealed Demand for Country of Origin Labeling of Meat in the 
United States" (2013) 38(2) Journal of Agricultural and Resource Economics , pp. 235-247 (Panel Exhibits 
CDA-83, MEX-35, and MEX-62). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Third, Mexico claims that the Panel failed to draw  the correct inferences from certain evidence. In 
particular, Mexico contends that the Panel inferred from evidence suggesting consumer willingness to pay approximately the same amount for "Product of North America" information that consumers are indeed willing to pay something for origin information. In Mexico's view, the Panel ought to 
have inferred that consumers have no greater willingness to pay for country-specific origin 
information than for much broader, non-country-specific origin information. Fourth, Mexico contends that the Panel erred in focusing on the conclusion in a USDA assessment that the 
expected benefits of providing origin information are difficult to quantify, rather than focusing on 
the conclusion that the economic benefits would be small. Taken together or singly, Mexico argues that these failures rise to the level of a breach of Article 11 of the DSU. Mexico submits that an 
objective assessment of the evidence demonstrates that consumer demand for origin information 
is very low. 
2.162.  In Mexico's view, and in the light of the foregoing, the Panel's failure to undertake a 
rigorous and complete "relational" analysis as a first step under Article 2.2 of the TBT Agreement 
and to render a conclusion as to the "necessity" of the trade-restrictiveness of the amended COOL 
measure amounts to a legal error. Mexico submits that, when weighed and balanced in a holistic way under the "relational" analysis, the "very considerable" trade-restrictiveness is clearly 
unnecessary in the light of its "profoundly disproportional relationship" to the very low gravity of 
the consequences that would arise from the non-fulfilment of its objective, as well as its degree of contribution to its objective.
189  
2.5.2.3  The degree of contribu tion made by the amended COOL  measure to its objective  
2.163.  Mexico claims that the Panel erred in failing to include Label E in its assessment of the 
amended COOL measure's degree of contribution to its objective. Although Mexico does not claim 
that Label E is inconsistent with any provisions of the covered agreements, it asserts that Label E 
is nonetheless an "integral component" of the me asure because it is applied to beef products 
consumed in the United States for the purpose of providing consumer information on origin.190 
Label E should thus have been part of the asse ssment of the degree of fulfilment by the amended 
COOL measure to its objective.  
2.164.  More specifically, Mexico submits three grounds in contending that the Panel erred in 
failing to include Label E in its assessment. First, Mexico contends that the Panel's concern to ensure alignment between the aspects encompassed by the assessment of the degree of 
contribution of the amended COOL measure and th e alternatives it proposed is unfounded. In 
Mexico's view, the "relational" analysis and "comparative" analysis are different types of analyses that are not compared. Further, the inclusion of Label E in the "relational" analysis would not 
prejudice the "comparative" analysis because it is constant under both the amended COOL 
measure and the proposed alternatives. Second, Mexico argues that the "relational" analysis must be conducted taking into account all relevant factors related to the challenged measure, and Label 
E is clearly one of these factors because the very  existence of Label E suggests that the amended 
COOL measure includes ground beef in its objective to provide consumer information on origin. Third, Mexico submits that, after deciding that La bel E should be excluded from the "relational" 
analysis, the Panel nonetheless referred to perc entages that included Label E as part of its 
determination that the amended COOL measure makes a "considerable" contribution to its 
objective.
191 In Mexico's view, an assessment that actually excludes Label E from its assessment 
leaves a degree of contribution of less than one quarter, which is not "considerable". Further, 
Mexico contends that, to the extent that Label E actually is included in the contribution 
assessment, the Panel found that Label E rules do not provide sufficient information to fulfil the amended COOL measure's objective. Accordingly, Label E ought not to be credited as contributing 
to the fulfilment of the measure's objective.  
2.5.2.4  The first and second proposed alternative measures  2.165.  Mexico claims that it was wrongly deprived of a full "comparative" analysis for its first and 
second proposed alternative measures under the second step of the "necessity" test under 
Article 2.2 of the TBT Agreement. In particular, Mexico argues that the Panel's ability to undertake 
                                               
189 Mexico's other appellant's submission, para. 110. 
190 Mexico's other appellan t's submission, para. 53. 
191 Mexico's other appellant's submission, para. 59 (referring to Panel Reports, para. 7.356). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 a "comparative" analysis was compromised by its earlier error of failing to ascertain the gravity of 
the consequences arising from non-fulfilment. Mexico considers that the Panel ought to have found such gravity to be very low, and should have co mpleted the "comparative" analysis on that basis. 
2.166.  In Mexico's view, the determination of whether a proposed alternative makes an 
"equivalent" degree of contribution to the challenged measure is qualified by a consideration of 
"the risks non-fulfilment would create". In this regard, Mexico cites the Appellate Body's statement 
in the original proceedings that "it will be relevant to consider whether the proposed alternative … 
would make an equivalent contribution to the relevant legitimate objective, taking account of the 
risks non-fulfilment would create".
192 Thus, to the extent its proposed alternatives make a 
"somewhat lesser" contribution to the measure's objective, Mexico argues that they should nonetheless be treated as making an "equivalent" contribution where the risks of non-fulfilment of 
the measure's objective are insignificant so as no t to outweigh the alternative's lower degree of 
trade-restrictiveness.
193 
2.167.  Accordingly, Mexico argues that the first proposed alternative makes at least an equivalent 
contribution to the measure's objective vis-à-vis the challenged measure. The first alternative 
preserves information on where the animal was slaughtered, and extends it to food service 
establishments and retailers that are otherwis e exempt under the measure. The additional 
information on where the animal was born and raised may be provided under this alternative on a 
voluntary basis, such that consumers that place va lue on such information can seek it out and pay 
a premium for it. Thus, the extent to which the voluntary component of the alternative contributes to the amended COOL measure's objective is contingent on the degree of consumer demand for 
such information, which is in turn reflective of the risks non-fulfilment would create.
194 Mexico 
further argues that its first proposed alternativ e is less trade restrictive than the amended COOL 
measure because the use of the substantial tran sformation rule would eliminate the need for 
segregation. Mexico also argues that its first proposed alternative is reasonably available because 
the amended COOL measure currently employs a simi lar approach to origin labelling for imported 
muscle cuts of beef, and because the more specific location information related to production steps 
would be voluntary. 
2.168.  In respect of the second proposed alternative measure, Mexico argues that, while the use 
of the ground beef labelling rule (Label E) for Labels A-C might provide less accurate information, the removal of exemptions would lead to a broader scope of application. In Mexico's view, the very 
existence of Label E in the challenged measure for a substantial portion of beef suggests that the 
level of accuracy it affords is satisfactory, particularly in the absence of any legitimate justification for applying a higher standard of accuracy to muscle cuts of beef. Thus, the use of Label E for 
muscle cuts of beef currently covered by Labels A-C, coupled with a broader scope of application, 
should be treated as providing an equivalent de gree of contribution as the challenged measure, 
particularly in the light of the very low risk of non-fulfilment manifested through a lack of 
consumer demand for more accurate origin information. Mexico further argues that its second 
proposed alternative is less trade restrictive than the challenged measure because it would include the same 60-day inventory allowance, which would reduce the degree to which processors would be required to segregate beef products. Mexico also argues that its second proposed alternative is 
reasonably available because the amended COOL me asure currently employs a similar approach to 
origin labelling for ground beef, noting that there is no legitimate basis on which to distinguish ground beef and other beef products. 
2.5.2.5  The third and fourth proposed alternative measures  
2.169.  Mexico requests the Appellate Body to reverse the Panel's finding that precise and 
complete cost estimates are a pre-requisite to th e "adequate identification" of an alternative in 
order to make a prima facie  case that it is reasonably available.
195  
                                               
192 Mexico's other appellant's submission, pa ra. 119 (quoting Appellate Body Reports, US – COOL , 
para. 471). 
193 Mexico's other appellant's submission, para. 124. 
194 Mexico's other appellant's submission, paras. 134-136. 
195 Mexico's other appellant's submission, paras. 174 and 184. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.170.  Mexico argues that the Panel effectively imposed a new and unjustifiable requirement on 
the complainants to explain exactly how a proposed alternative measure would be implemented by the respondent. Further, Mexico argues that there is no authority for the Panel's determination that precise and complete cost estimates are a prer equisite to the "adequate identification" of an 
alternative. Rather, Mexico submits that the Appellate Body has referred to evidence and 
arguments on costs in respect of what a respondent might raise in rebuttal, as opposed to evidence that a complainant would need to raise in identifying the alternative in the first 
instance.
196 Thus, by requiring the complainants to provide precise explanations and complete cost 
estimates with respect to the implementation of the proposed alternatives, Mexico contends that the Panel applied an impossible standard of proof, which effectively relieved the United States of its burden to adduce evidence and arguments in rebuttal. 
2.171.  In Mexico's view, the only Member in a position to comment meaningfully on the specific 
issues of implementation and the associated costs, including any significant obstacles or 
difficulties, is the respondent Member itself. For Mexico, this should be reflected in the standard of 
proof for establishing a prima facie  case. Mexico contends that, by requiring precise explanations 
and complete cost estimates with respect to the implementation of proposed alternative measures in the foreign jurisdiction of the responding Member for the purposes of "adequate identification", 
the Panel required a standard of proof that was impossible for the complainants to satisfy. As a 
consequence, the Panel effectively relieved the United States of its burden to adduce evidence and arguments in rebuttal. It should not be sufficient for the United States merely to argue that the complainants failed to meet their burden because they did not set out an "actual, concrete 
proposal" or exact explanations regarding the implementation of the alternative measures.
197 For 
Mexico, the United States was obligated to demonstrate specific obstacles, costs, or difficulties facing the implementation of each proposed altern ative measure. Thus, in the absence of any real 
doubt regarding the capacity of the respondent Member to implement the alternatives, Mexico 
considers that it would not be reasonable or a ppropriate to require the implementation or costs 
associated with the alternatives to be described with the precision demanded by the Panel. 
Accordingly, the Panel's interpretation of the appr opriate standard of proof – which called upon the 
complainants to adduce evidence and arguments demonstrating specific obstacles, cost issues, or other difficulties relating to the practicality of the alternatives – was an error with serious systemic implications. 
2.5.3  Article XXIII:1(b) of the GATT 1994 
2.172.  Should the Appellate Body conclude that the Panel erred in finding that the amended COOL 
measure is inconsistent with Article 2.1 of th e TBT Agreement and Articl e III:4 of the GATT 1994, 
and further determine that the amended COOL meas ure is not inconsistent with these provisions, 
Mexico appeals the Panel's decision to exercise judicial economy with respect to Mexico's non-violation claim under Article XXIII:1(b) of th e GATT 1994, and requests the Appellate Body to 
complete the legal analysis and find that th e amended COOL measure is inconsistent with 
Article XXIII:1(b).
198 Mexico submits that the Panel erred in exercising judicial economy, 
particularly because the Panel's findings under Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994 could be reversed by the Appellate Body on appeal. 
2.6  Arguments of the United States – Appellee 
2.6.1  Article 2.1 of the TBT Agreement 2.173.  The United States requests the Appellate Body to reject the claims of Canada and Mexico 
that the Panel erred in its treatment of Labels D and E, as well as the prohibition of a trace-back 
system under the amended COOL measure, for the purposes of the Panel's assessment of whether 
the detrimental impact of the amended COOL measure reflects discrimination prohibited by 
Article 2.1 of the TBT Agreement. The United St ates submits that the Panel's conclusions under 
Article 2.1 with respect to these elements of the amended COOL measure are correct. According to 
                                               
196 Mexico's other appellant's subm ission, paras. 177-178 (referring to Panel Reports, para. 7.555; 
Appellate Body Reports, EC – Seal Products , paras. 7.276-7.277; Brazil – Retreaded Tyres , para. 156; and US 
– Gambling , para. 308). 
197 Mexico's other appellant's subm ission, paras. 175 and 180 (quoting Panel Reports, para. 7.586, in 
turn quoting United States' comments on Ca nada's response to Pa nel question No. 74). 
198 Mexico's other appellant's submission, para. 199. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the United States, Labels D and E, the statutory prohibition of a trace-back system, and the three 
exemptions to the COOL requirements are irrelevant  to the analysis under Article 2.1 because they 
are not responsible for the detrimental impact on imported livestock. As such, these "regulatory distinctions" cannot answer the question posed by th e second step of the analysis under Article 2.1 
of the TBT Agreement, namely, whether the detrimental impact on imported products reflects 
discrimination.  
2.6.1.1  The Panel's analysis of Label D  
2.174.  The United States requests the Appellate Body to reject Canada's claim that the Panel 
erred in finding that Label D does not support a finding that the amended COOL measure is inconsistent with Article 2.1 of the TBT Agreement. 
2.175.  In relation to Canada's assertion that Label D exposes the "arbitrary character" of the 
amended COOL measure, the United States responds that Canada misunderstands the analysis to 
be conducted under Article 2.1 of the TBT Agreement.
199 The United States explains that, because 
the question posed in the second step of the analysis under Article 2.1 is whether the detrimental 
impact on like imported products reflects discrimination, only those regulatory distinctions that 
account for such detrimental impact can answer that question. The United States highlights that Canada has neither argued, nor proved, that there is a detrimental impact on Category D muscle 
cuts produced in Canada and exported to the United States.  
2.176.  In addition, Canada has failed to prove that Label D contributes to any "origin-based 
discrepancy" between the accuracy of Label A as compared to the accuracy of the other labels 
prescribed by the amended COOL measure.
200 Nor has Canada proven that Label D is otherwise 
"arbitrary". In this regard, the United States asserts that Canada has not provided any evidence of 
Category D animals that were not born and raised in the country in which they were slaughtered to substantiate its assertion that Label D is inaccurate in cases where an animal was not born and/or 
raised in the foreign country in which it was slaughtered. Thus, for the United States, the Panel 
was correct in determining that there is no reason to conclude that Category D muscle cuts, bearing the label "Product of Country X", will not be from animals "that are entirely  a product of 
that country".
201 
2.177.  With respect to Canada's challenge of th e Panel's reliance on the small market share of 
Category D muscle cuts in the US market as a basis for concluding that Label D does not support a conclusion that the detrimental impact of the amended COOL measure reflects discrimination, the 
United States responds that Canada has not provided a reason as to why the Panel's reliance on 
this factor was "misplaced".
202 In the United States' view, whether, and to what extent, a label is 
used is a relevant factor in the inquiry under Article 2.1 in these disputes. The United States 
highlights, in this regard, that the original panel concluded that muscle cuts bearing Label D 
constitute somewhere between 0% and 0.3% of the US market.  
2.178.  The United States also disagrees with Canada's argument that the Panel erred by faulting 
Canada for failing to provide evidence of Category D animals that were not born and raised in the 
country in which they were slaughtered. According to the United States, while Canada apparently considers Label D to be relevant to the analysis because it allegedly "demonstrates the dissonance" between, on the one hand, the United States' objective of ensuring that label 
information accurately reflects the origin of muscle cuts and, on the other hand, the amended 
COOL measure's operation "in practice", Canada is unable to prove that Category D animals were not born and raised in the same foreign country in which they were slaughtered.
203  
                                               
199 United States' appellee's submission, para. 252 (quoting Canada's other appellant's submission, 
para. 159). 
200 United States' appellee's submission, para. 253 (quoting Canada's other appellant's submission, 
para. 159). 
201 United States' appellee's submission, para. 253 (quoting Panel Reports, para. 7.279). (emphasis 
added by the United States) 
202 United States' appellee's submission, para. 254 (quoting Canada's other appellant's submission, 
para. 160). 
203 United States' appellee's submission, para. 256 (quoting Canada's other appellant's submission, 
para. 163). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.179.  Finally, with respect to Canada's conten tion that a "dissonance" exists between the 
objective of the amended COOL measure and what that measure actually achieves, the United States responds that this contention reveals a misunderstanding of the analyses under Article 2.1 and Article 2.2 of the TBT Agreement. Th e United States asserts that it is not the case 
that an importing Member must "fulfil" its objectiv e to satisfy the requiremen ts of Article 2.2. Nor 
is there any basis for the proposition that a regulatory distinction is not "even handed", for the purposes of Article 2.1, merely because it does not "fulfil" the measure's objective in "every way 
possible".
204  
2.6.1.2  The Panel's analysis of Label E  2.180.  The United States requests the Appellate Body to reject the claims of Canada and Mexico 
that the Panel erred in finding that the labelling requirements for Category E ground meat do not 
support a conclusion that the detrimental impact of the amended COOL measure reflects 
discrimination prohibited by Arti cle 2.1 of the TBT Agreement.  
2.181.  First, the United States submits that the claims of Canada and Mexico concerning Label E 
are premised on the proposition that a regulato ry distinction that does not account for the 
detrimental impact on imported products is relevant to the assessment of whether such detrimental impact stems exclusively from legitimate regulatory distinctions. This premise, in the 
United States' view, is incorrect. The United States explains that, once it is established that a 
regulatory distinction does not account for the detrimental impact on imported products, the inquiry under Article 2.1 should end with respect to that particular regulatory distinction. In the light of the findings of the original panel, Label E, unquestionably, does not account for the 
detrimental impact on imported livestock. Noting Mexico's argument that the Panel's approach to 
Label E, on the one hand, and its approach to the exemptions under the amended COOL measure, on the other hand, are inconsistent because both elements do not account for the detrimental 
impact on imported livestock, the United States agrees with Mexico that, in this regard, the Panel's 
analysis is inconsistent and is, therefore, in error. The United States clarifies that this incoherence, however, proves only that the exemptions are not relevant to the analysis under Article 2.1, and 
that the Panel erred in relying on them as a ba sis for finding that the amended COOL measure is 
inconsistent with Article 2.1.  
2.182.  Second, the United States contends that Canada and Mexico incorrectly criticize the Panel 
for relying on the fact that ground meat is prod uced from different suppliers, and through different 
means of processing, as a basis for excluding Label E from its analysis under Article 2.1. In 
particular, Mexico appears to argue that the mere fact that the labelling requirements for Category E meat are different from those applicable to other categories of meat provides a basis for 
concluding that the amended COOL measure is incons istent with Article 2.1. In the United States' 
view, Article 2.1 of the TBT Agreement does not require the United States to apply the same 
labelling rules to different products. As the United  States explained to the Panel, the USDA created 
separate labelling rules for ground meat based on the unique attributes regarding the production 
of ground meat, which differs substantially from the production of muscle cuts.  
2.6.1.3  The prohibition of a trace-back system  2.183.  The United States requests the Appellate Body to reject Canada's argument that the Panel 
erred in its treatment of the prohibition of a tr ace-back system under the amended COOL measure 
in its assessment of whether the detrimental impact of that measure reflects discrimination prohibited by Article 2.1 of the TBT Agreement. 
2.184.  The United States submits that Canada's argument that the trace-back prohibition is 
relevant to the analysis under Article 2.1 is incorrect because the trace-back prohibition does not account for the detrimental impact on imported livestock and, therefore, it is not relevant for the 
determination of whether such detrimental impact stems exclusively from legitimate regulatory 
distinctions. Canada's argument appears to be that  the trace-back prohibition supports a finding of 
discrimination because the prohibition represents a "choice" between a trace-back system, on the 
one hand, and the recordkeeping and verification requirements of the amended COOL measure, on 
                                               
204 United States' appellee's submission, para. 257. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the other hand.205 The United States explains, however, that the fact that the United States could 
have chosen an alternative that, in Canada's view, does not result in a detrimental impact on imported livestock does not mean that the amended COOL measure is discriminatory. The United States submits that, in this regard, Canada misunderstands the analysis under Article 2.1 of 
the TBT Agreement for determining whether the detr imental impact of a technical regulation on 
imported products reflects discrimination.  
2.6.2  Article 2.2 of the TBT Agreement 
2.6.2.1  Introduction 
2.185.  The United States submits that the Panel was correct in rejecting the complainants' claim 
that the amended COOL measure is "more trade restrictive than necessary" under Article 2.2 of the TBT Agreement because Canada and Mexico failed to make a prima facie  case that any of their 
four proposed alternative measures are less trade restrictive and reasonably available alternatives 
that make an equivalent contribution to the amended COOL measure's objective.  
2.186.  In the United States' view, Canada's and Mexico's claims and arguments on appeal are 
based on a significant misunderstanding of the me aning of Article 2.2 of the TBT Agreement, the 
Panel's analysis of their claims, and their own burden of proof, in addition to other errors. In particular, the United States submits that a comparison between a challenged measure and an 
alternative measure is central to the analysis of whether the challenged measure is "more trade 
restrictive than necessary" under Article 2.2. The United States contends that complainants must make out a prima facie  case that there exists an alternative measure that is reasonably available, 
less trade-restrictive, and makes an equivalent degree of contribution to the challenged measure 
in order to discharge their burden of proof under Article 2.2. In the United States' view, the Panel 
correctly found that Canada and Mexico failed to make out a prima facie  case for any of the four 
alternatives that they proposed, thus warranting the finding of no inconsistency with Article 2.2.  
2.6.2.2  The legal test under Ar ticle 2.2 of the TBT Agreement  
2.187.  In response to Canada's and Mexico's claims that the Panel erred in its interpretation of 
Article 2.2 of the TBT Agreement in relation to  the role and nature of the "relational" and 
"comparative" analyses, the United States argues that their approach has no basis in the text of 
Article 2.2 and its attendant case law, and repres ents an attempt of the complainants to relieve 
themselves of their proper burden of proof. The Un ited States considers that a comparison of the 
challenged measure with a proposed alternative is ce ntral to the analysis under Article 2.2. In this 
regard, the United States relies on the language of Article 2.2 – namely, "more … than" – and the 
Appellate Body's findings in US – COOL and US – Tuna II (Mexico) .
206 The United States explains 
that circumstances may arise that negate the need for a comparison with an alternative, namely, 
where Article 2.2 is found not to apply because there is no trade-restrictiveness, or where the 
measure is found not to contribute to a legitimate objective in the first instance. However, the possibility for such circumstances does not require the bifurcation of the "necessity" analysis under 
Article 2.2, and, further, no such circumstance s are present in the case at hand. Rather, the 
assessment of the measure itself provides the basi s, in terms of intermediate findings, that are 
required in order for a panel to engage in a comparison of the challenged measure and the proposed alternative measures. 
2.188.  Thus, according to the United States, since the text of, and case law referring to, 
Article 2.2 calls for a "comparative" analysis, and since no circumstances are present to render a comparison inutile, the Appellate Body's finding in the original proceedings that an examination of 
proposed alternatives is a requisite part of the analysis under Article 2.2 should continue to 
apply.
207 Moreover, the United States alleges that Mexico misunderstands the key question posed 
by Article 2.2 as being whether a WTO panel, in weighing and balancing all of the relevant factors, 
                                               
205 United States' appellee's submission, para. 272 (quoting Canada's other appellant's submission, 
para. 177). 
206 United States' appellee's submission, pa ra. 59 (quoting Appellate Body Reports, US – COOL , 
para. 376; and US – Tuna II (Mexico) , para. 320), and paras. 55-56 (referring to Panel Reports, 
paras. 7.292-7.303, in turn quoting Appellate Body Reports, US – COOL , para. 469). 
207 United States' appellee's submission, paras.  62-64 (referring to Appellate Body Reports, US – COOL , 
para. 469). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 would choose a different public policy goal and means to accomplish that goal than what the 
importing Member has decided.208 
2.189.  In respect of Canada's and Mexico's specific claims of error regarding the Panel's 
interpretation of the phrase "taking account of the risks non-fulfilment would create" in Article 2.2 
of the TBT Agreement, the United States argues that this phrase is properly understood as a 
reflection that an individual Member takes into account such risks when setting its level of fulfilment.
209 In the United States' view, there is nothin g in the text of Article 2.2 that indicates 
that the intent underlying this phrase is to restrict a Member's ability to regulate in the public 
interest. Accordingly, it would be incorrect to interpret this phrase so as to facilitate a finding of inconsistency under Article 2.2 on the basis of an alternative measure that makes a lesser contribution to the objective of a challenged  measure than the challenged measure itself. 
2.190.  In respect of Canada's and Mexico's claims that the Panel erred in failing to assess the 
relative importance of the values furthered by  the measure when "taking account of the risks 
non-fulfilment would create", the United States contends that there is no correlation between the 
"importance" of an objective and "the risks non-fulfilment would create".
210 In the United States' 
view, it is significant that the elements listed as relevant considerations for "taking account of the risks non-fulfilment would create" do not include the "relative importance" of the measure's 
objective, whereas Canada and Mexico seem to treat it as the "paramount consideration".
211 
Furthermore, panels are not in a position to judge the relative importance of various objectives pursued by different Members. Members have not provided guidance to assist panels in any such exercise, which would rely on the subjective judgement of panels, which would in turn be 
detrimental to the WTO systemically, and to  the WTO dispute settlement system more 
specifically.
212 
2.191.  In respect of Canada's and Mexico's arguments that the Panel erred in omitting the design, 
structure, and architecture of the amended COOL from its assessment of "the risks non-fulfilment 
would create", the United States argues that this is another version of their "relative importance" argument. In the United States' view, it is wrong to suggest that the United States does not 
consider the amended COOL measure's objective to be important. Rather, the measure itself 
demonstrates that it covers an extremely large amount of food, and the consequences of not providing origin information in respect of that food are significant. The reasons for exemptions or different kinds of information on certain labels are not reflective of a lack of importance placed by 
a Member on a measure's objective but, rather, reflect that Members accommodate certain cost 
considerations in designing their measures. 
2.192.  The United States further argues that the additional factors advocated by Canada to be 
considered when "taking account of the risks non-fulfilment would create" are not relevant to the 
analysis. First, the Panel did not err by refraining from taking into account that the life or health of consumers would not be endangered if they did not receive origin information, since Article 2.2 
does not distinguish between "important" and "unimportant" objectives, as Canada presumes. 
Second, the Panel did not err in not taking into account the "market failure" perspective, because 
there are many situations where consumer demand for a labelling regime could be conceivably low – such as health warnings on tobacco products – but that would not mean that the government 
mandating the requirement would consider the risks non-fulfilment would create to be low. 
2.193.  In respect of Canada's and Mexico's claims regarding the Panel's conclusions on the gravity 
of the consequences arising from non-fulfilment of the measure's objective, the United States 
notes first that Canada's claim relates to the factors that Canada would prefer to be taken into 
account when assessing "the risks non-fulfilment would create". Thus, the United States considers 
that Canada's claim is unfounded for the same reasons that the relative importance of the 
measure's objective, the design, structure, and ar chitecture of the measure, the absence of harm 
to consumers, and the "market failure" perspective are not relevant in "taking account of the risks non-fulfilment would create". In respect of Mexico's claim in this regard, the United States submits that it rests on Mexico's erroneous "two-step" ap proach to assessing measures under Article 2.2 of 
                                               
208 United States' appellee's submission, para. 66. 
209 United States' appellee's submission, para. 84. 
210 United States' appellee's submission, para. 107. 
211 United States' appellee's submission, para. 108. 
212 United States' appellee's submission, paras. 109-112. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the TBT Agreement, and is based on the misunderstanding that an alternative measure that makes 
a lesser contribution to the measure's objective can ground an inconsistency with Article 2.2.  
2.194.  In respect of Mexico's claims of error under Article 11 of the DSU regarding the Panel's 
treatment of evidence concerning consumer demand, the United States advances a number of 
arguments. First, with regard to Mexico's allega tion that the Panel erred intis consideration of 
Exhibit CDA-154 ("Food Values Applied to Livestock Products"), the United States submits that that piece of evidence was submitted to the Panel record for the DS384 Panel hearing the dispute 
between the United States and Canada, and not for the DS386 Panel hearing the dispute between 
the United States and Mexico. Second, the United States submits that, contrary to Mexico's arguments, the Panel did indeed address the releva nce and shortcomings of each of the pieces of 
evidence raised by Mexico, but merely disagreed with Mexico as to their relevance. For instance, in 
respect of Exhibit CDA-154, the Panel assessed the evidence by presenting its conclusion, noting 
the representativeness of the sample of the study, analysing the questions posed in the study, and pointing out aspects of the design of the study. With regard to the KSU Revealed Demand study, 
the Panel stated its conclusion, and examined the in ference that could be drawn from it. In respect 
of the telephone opinion poll
213, the Panel identified shortcomings in the poll, and concluded that, 
in view of the shortcomings, it could not be a ssumed that 47% of consumers would actually be 
interested in having a meat label with country of origin information, but, rather, drew the 
inference that there is some consumer interest in country of origin information in general. In respect of evidence on consumer willingness to pay for a "Product of North America" label vis-à-vis 
a country of origin label, the Panel was correct on drawing inferences from the evidence submitted 
by Mexico. Regarding the evidence on the USDA's findings of small economic benefits of receiving 
country of origin information, the Panel noted that the benefits accruing to consumers could be a determinant of consumer demand, while also noting that a Member's interest in pursuing a 
legitimate objective might also be relevant for a scertaining the gravity of the consequences of not 
fulfilling an objective, which in turn affected th e weight it attributed to that evidence. In the 
United States' view, Mexico's claims under Article 11 of the DSU go to the inferences drawn and 
the weight accorded by the Panel, which is insufficient to ground a claim under Article 11. 
2.6.2.3  The degree of contribu tion made by the amended COOL  measure to its objective  
2.195.  According to the United States, the claims  of Canada and Mexico that the Panel erred by 
limiting its assessment of the degree of contribution of the amended COOL measure to Labels A-C 
are premised on the misunderstanding that Articl e 2.2 of the TBT Agreement requires two separate 
analyses. Rather, Article 2.2 comprises one analysis requiring the demonstration that an alternative measure exists that is less trade restrictive, makes an equivalent contribution to the 
relevant objective, and is reasonably available. Thus, the Panel correctly sought to ensure that the 
same scopes were used for the measure and the proposed alternatives to enable a proper comparison. For the United States, the Panel could only make an appropriate comparison by either 
excluding Labels D and E from, or including them in, its analysis of both the measure and the 
alternatives. In this regard, it is immaterial whether the degree of contribution is "considerable", as found by the Panel, or "limited", as suggested by Canada.
214 Rather, the key question is 
whether a proposed alternative makes an equivalent degree of contribution, such that a Member's 
chosen level of contribution is fulfilled. Since Canada and Mexico did not make arguments in 
respect of the contribution made by Labels D and E when discussing their alternatives, it was entirely proper for the Panel to exclude those labels from its assessment of the degree of 
contribution. 
2.196.  In respect of Canada's and Mexico's arguments regarding the Panel's inconsistent reliance 
on figures on the quantum of coverage under the amended COOL measure, the United States 
argues that they misread the Panel Reports. The United States contends that the Panel explained 
that its use of the figures 33.3% to 42.3% coverage of beef products related to "an indicative approximation of the extent to which the exem ptions prevent any contribution to the COOL 
objective".
215 For the United States, the Panel provided further context for its use of these figures 
by stating that it was "unable to determine the proportion of exempted products within 
                                               
213 Results of a telephone survey conducted by the National Research Center, "Country of Origin 
Labeling Poll, Final Report" (4 October 2010) (Panel Exhibit US-48). 
214 United States' appellee's submission, para. 81. 
215 United States' appellee's submission, para. 79 (quoting Panel Reports, fn 786 to para. 7.347). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Categories A-C specifically".216 The United States contends that the Panel relied on these figures at 
no further stage in its analysis but, rather, that its focus was on the contribution made by Labels A-C, evinced through the finding that "the amended COOL measure contributes to the objective of providing consumer information on origin to a significant degree for products carrying 
Labels A-C. "
217 The following sentence – "At the same time, the amended COOL measure does not 
make any contribution for products exempted from its coverage that would otherwise carry such labels." – demonstrates that the Panel made its findings of the "considerable but … partial 
contribution" to its objective based on the contribu tion made by Labels A-C, as qualified by the 
exemptions.
218 
2.6.2.4  The first and second proposed alternative measures  2.197.  The United States requests the Appellate Body to reject Canada's and Mexico's appeals of 
the Panel's findings that the complainants have not made a prima facie  case that their first and 
second proposed alternative measures would make at least an equivalent contribution to the objective of providing origin information to consumers as the amended COOL measure. For the 
United States, Article 2.2 involves a straightforward analysis of whether a complainant has 
demonstrated the existence of an alternative me asure that is less trade restrictive, makes an 
equivalent contribution to the relevant objective, and is reasonably available. This analysis is 
reflective of the balance struck by Article 2.2 of the TBT Agreement between, on the one hand, the 
right of Members to pursue legitimate objectives at the levels they consider appropriate and, on 
the other hand, the requirement to choose less trade-restrictive alternatives when pursuing such objectives at such levels.  
2.198.  The United States submits that Canada's and Mexico's conception of Article 2.2 strikes an 
entirely different balance that distinguishes between "important" and "unimportant" objectives.
219 
Under this conception, alternative measures that make a lesser degree of contribution than the 
challenged measure to its objective can ground a violation of Article 2.2 where the given objective 
is less important. The United States submits that this is the central weakness of Canada's and Mexico's claims in respect of the first and second proposed alternative measures, since, under this 
approach, the United States would be prohibited from providing point-of-production information. In 
the United States' view, both the first and second proposed alternative measures provide a lesser degree of consumer information on origin, or less accurate information, than the amended COOL measure. Thus, such measures cannot be considered to contribute to the amended COOL 
measure's objective to an "equivalent" degree. In that regard, the United States cites the 
Appellate Body's reversal of the panel's finding in US – Tuna II (Mexico) that the challenged 
measure in that dispute was inconsistent with Article 2.2 in the light of the fact that the proposed 
alternative "would contribute to both the consumer information objective and the dolphin 
protection objective to a lesser degree  than the [challenged] measure".
220 
2.199.  In the United States' view, Canada's and Mexico's claims in respect of the first and second 
proposed alternative measures are premised on a flawed interpretation of the phrase "taking 
account of the risks non-fulfilment would create". For the United States, a panel will never be in a position to undertake the complex balancing of whether adjusting one variable or another in the alternative measure would adequately "compensate" for providing a lesser contribution to the 
objective than the challenged measure in the context of a particular Member.
221 Further, no reason 
is provided to explain why expanding the scope of product coverage under the alternatives would "compensate" for the lesser degree of information, or less accurate information. In any case, the 
United States argues that there are insufficient undisputed facts on the record and factual findings 
of the Panel for the Appellate Body to complete the legal analysis. 
                                               
216 United States' appellee's submission, para. 79 (quoting Panel Reports, fn 786 to para. 7.347). 
217 United States' appellee's submission, para. 80 (quoting Panel Reports,  para. 7.356). (emphasis 
added by the United States) 
218 United States' appellee's submission, para. 80 (quoting Panel Reports, para. 7.356). 
219 United States' appellee's submission, para. 151. 
220 United States' appellee's submission, para. 171 (quoting Appellate Body Report, US – Tuna II 
(Mexico) , para. 330). (emphasis added by the United States) 
221 United States' appellee's submission, para. 176. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.6.2.5  The third and fourth proposed alternative measures  
2.200.  In response to Canada's and Mexico's claims that the Panel erred in applying an overly 
high burden of proof in respect of their thir d and fourth proposed alternative measures, the 
United States submits that the Panel correctly concluded that the complainants' description of the 
third and fourth proposed alternatives was insufficient. In the United States' view, it is well 
established that precisely how much and precisely what kind of evidence will be required for a complainant to satisfy its burden "will necessarily vary from measure to measure, provision to 
provision, and case to case".
222 In the present case, the complain ants made "exceedingly complex" 
proposals requiring changes at all levels of production and retail of meat in the United States, but provided only "limited explanations" and sometimes "vague" and "incomplete" descriptions.
223 In 
the United States' view, Canada's and Mexico's argument that the evidentiary burden applied by 
the Panel would require substantial research and expense is simply a reflection of the complexity 
of their proposals. Further, while the complainants insist that they provided sufficient information to describe the proposed alternatives, they failed to provide reasons as to why the information was 
sufficient or how they made their prima facie  case. 
2.201.  In response to the complainants' argume nts regarding the allocation of the burden of 
proof, the United States argues that the compla inants carried the burden of proving all three 
elements of the analysis under Article 2.2 of th e TBT Agreement, namely, that the alternative is 
less trade restrictive, makes an equivalent contribution, and is reasonably available. While the burden might be on the respondent to provide su fficient evidence to support an assertion that a 
proposed alternative is not reasonably available, this does not relieve complainants of their burden 
of proving that the alternative is reasonably available in the first instance. Further, in respect of 
the complainants' reliance on jurisprudence rela ting to Article XX of the GATT 1994 and to 
Article XIV of the GATS, the United States argues that the nature of Article 2.2 of the 
TBT Agreement is "entirely different" and its burden  of proof is accordingly "entirely different".
224 
2.202.  The United States also notes that neither Canada nor Mexico appeals the Panel's finding 
that they failed to make a prima facie  case that either the third or fourth proposed alternative 
measures is less trade restrictive than the amended COOL measure, makes an equivalent 
contribution to the objective, or is reasonably available. Similarly, neither Canada nor Mexico appeals the Panel's finding in that regard, namely, that neither the third nor fourth proposed alternative measure proves an inconsistency with Article 2.2 of the TBT Agreement. Thus, the 
United States argues that, even if the Appellate B o d y  w e r e  t o  f i n d  i n  f a v o u r  o f  C a n a d a ' s  a n d  
Mexico's appeals in respect of the third and fourth proposed alternative measures, the Panel's ultimate finding that they did not prove an inconsistency with Article 2.2 would stand. 
2.6.3  Article XXIII:1(b) of the GATT 1994 
2.203.  The United States requests the Appellate Body to reject Canada's and Mexico's appeals of 
the Panel's exercise of judicial economy with respect to their non-violation claims under 
Article XXIII:1(b) of the GATT 1994 and to reject th eir requests that the Appellate Body complete 
the legal analysis. In this respect, the United States refers to the arguments presented in its appellant's submission that the terms of referenc e of proceedings under Article 21.5 of the DSU do 
not include non-violation claims. 
                                               
222 United States' appellee's submission, para. 222 (quoting Appellate Body Report, Chile – Price Band 
System (Article 21.5 – Argentina) , para. 134, in turn quoting Appellate Body Report, US – Wool Shirts and 
Blouses , p. 14, DSR 1997:I, p. 335). 
223 United States' appellee's submission, para. 222 (quoting Panel Reports, paras. 7.556 and 7.602). 
224 United States' appellee's submission, para. 237. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.7  Arguments of the third participants 
2.7.1  Australia 2.204.  Australia disagrees with Canada's argument that "the existence of an alternative measure 
that would not cause discrimination (i.e. trace-ba ck) is evidence of arbitrary and unjustifiable 
discrimination, especially where the non-discriminatory alternative measures are prohibited."
225 In 
Australia's view, this argument is not supported by  longstanding Appellate Body jurisprudence with 
respect to determining arbitrary and unjustifiable discrimination in the context of both the chapeau 
of Article XX of the GATT 1994 and the TBT Agr eement. Australia notes that, in considering 
whether the relevant regulatory distinctions are designed and applied in an even-handed manner in the context of Article 2.1 of the TBT Agreem ent, the Appellate Body has "focused on the 
relationship between the regulatory distinction at issue and the objective of the relevant 
measure".
226 However, Australia contends that the Appellate Body has in no case undertaken an 
examination of alternative measures in the context of an analysis of arbitrary or unjustifiable discrimination for the purposes of Article 2.1 of th e TBT Agreement, nor should it do so in this 
case.  
2.205.  With regard to Article 2.2 of the TBT Agreement, Australia highlights that the 
TBT Agreement seeks to maintain the balance betw een the objective of avoiding the creation of 
unnecessary obstacles to international trade and the right of a Member to regulate in order to 
pursue certain legitimate objectives. Furthermore, Australia refers to the statement by the panel in 
EC – Sardines  that "Article 2.2 and [the preamble to th e TBT Agreement] affirm that it is up to 
Members to decide which policy objectives they wish to pursue and the levels at which they wish 
to pursue them."
227 
2.206.  With respect to the participants' arguments concerning the relationship between the 
"relational" analysis of various factors of the challenged measure and the "comparative" analysis 
focusing on proposed alternative measures, Australia submits that the legal framework for the 
analysis of whether a measure is "more trade restrictive than necessary" under Article 2.2 was clearly articulated by the Appellate Body in US – Tuna II (Mexico)  and in the original proceedings 
in US – COOL . Australia considers that these reports provide instructive guidance regarding the 
overall framework for the necessity analysis under Article 2.2.  
2.207.  Finally, Australia addresses Canada's and Mexico's allegations that the Panel erred in not 
considering the relative importance of the values and interests being protected by the amended 
COOL measure as against other measures. Austra lia cautions against adopting an "analytical 
discourse around the relative importance  of the values and interests underlying a measure"
228, 
because this may lead to a reassessment of the objective of the measure and its legitimacy and 
result in the development of a "hierarchy" of legitimate objectives.229 Rather, in Australia's view, 
"the nature of the risks and the gravity of the consequences of non-fulfilment of the legitimate objective must be determined by reference to th e legitimate objective of the challenged measure 
itself … and not by comparison with the values and interests underlying other legitimate objectives 
not at issue in that dispute."
230 In this vein, Australia highlights that, in assessing "the risks 
non-fulfilment would create" in the original proceedings, the Appellate Body considered arguments and evidence presented by the participants but di d not refer to the "relative" importance of the 
legitimate objective of the challenged measure as compared with other legitimate objectives. 
                                               
225 Australia's third participant's submission, para. 7 (quoting Canada's othe r appellant's submission, 
para. 177 (fn omitted)). 
226 Australia's third participant's submission, pa ra. 9 (referring to Appellate Body Reports, US – Clove 
Cigarettes , para. 236; US – Tuna II (Mexico),  para. 297; and US – COOL , para. 347). 
227 Australia's third participant's submis sion, para. 13 (quoting Panel Report, EC – Sardines , 
para. 7.120; and referring to Appellate Body Report, EC – Sardines , para. 276). 
228 Australia's third participant's submission, para. 24 (r eferring to United States' appellant's submission, 
paras. 249-271). (emphasis original) 
229 Australia's third participant's submission, para. 30. 
230 Australia's third participant's submission, para. 26. (fn omitted)  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.7.2  Brazil 
2.208.  Brazil submits that, in assessing whether a measure modifies the conditions of competition 
between imported and domestic like products in violation of Article 2.1 of the TBT Agreement, no single characteristic or effect of the measure can, in itself, be determinative. Rather, and especially 
in the case of a technical regulation that does not de jure  discriminate against imports, the design, 
structure, and expected operation of a measure,  as a whole, should be carefully scrutinized. 
Moreover, Brazil contends that the assessment of whether a challenged measure has detrimental 
impact on imported products "must be informed by all relevant aspects of the market, which may 
include the particular characteristics of the industry at issue, the relative market share in a given industry, consumer preferences and historical trade patterns".
231 
2.209.  With regard to Article 2.2 of the TBT Ag reement, Brazil contends that the legitimate 
objective pursued by a technical regulation is a factor that permeates the analysis and informs the 
obligation set out in Article 2.2. Accordingly, it is important that the legitimate objective pursued by a Member is correctly defined, and that the me asure's actual contribution to the fulfilment of 
the stated objective, and the manner and extent of the measure's contribution to the legitimate 
objective, is assessed. In this assessment, no sing le characteristic or effect of the measure can be 
determinative of the measure's inconsistency with Article 2.2. Rather, this analysis involves an 
evaluation of a number of factors, including the degree of contribution made by the measure to 
the legitimate objective pursued, and the nature of  the risks and the gravity of consequences that 
would arise from non-fulfilment of the measure. In addition, in most cases, this "relational" analysis should be followed by a "comparative" analysis between the measure at issue and 
possible alternative measures.
232 
2.210.  With regard to "the risks non-fulfilment would create" in the sense of Article 2.2 of the 
TBT Agreement, Brazil contends that these risks info rm the degree of contribution of an alternative 
measure and the burden of proof in relation to potential less trade-restrictive alternative 
measures. In particular, Brazil contends that the complainant bears the burden of identifying a possible less trade-restrictive alternative measure, and of explaining how the alternative would be 
implemented. In Brazil's view, the risks of non-fu lfilment need to be taken into account in the 
allocation of the burden of proof in the sense th at, when non-fulfilment of the measure's objective 
would entail grave consequences, the alternative measure should be described in detail. Similarly, with regard to the degree of contribution, when non-fulfilment of the measure's objective would 
entail grave consequences, the alternative measure would need to present an "invariably 
equivalent degree of contribution" to the legitimate objective being pursued.
233  
2.7.3  China 
2.211.  China takes issue with the United States' argument relating to the Panel's analysis under 
Article 2.1 of the TBT Agreement that, because th e exemptions to the amended COOL measure are 
even handed and apply to domestic and imported livestock equally, the amended COOL measure 
does not disadvantage Canadian or Mexican livestock. First, China argues that the exemptions 
per se  are not measures alleged to be inconsistent with Article 2.1, and, thus, even if they are 
even handed and apply to domestic and imported products equally, it does not mean that the amended COOL measure itself is even handed, or that its detrimental effect stems only from 
legitimate regulatory distinctions. Second, the exemptions per se  are not relevant regulatory 
distinctions, and, therefore, ev en if they are even handed and apply to domestic and import 
livestock equally, it does not mean that all detrimental impact of the amended COOL measure 
stems only from legitimate regulatory distinctions. Third, China contends that the exemptions are 
part of the overall architecture of the amended COOL  measure, and, in particular, they are part of 
the reason why origin information that is collected and maintained by upstream producers and 
processors is not conveyed to consumers for the majority of the meat products consumed in the 
United States. Fourth, China disagrees with the Unit ed States that there is an analogy between the 
exemptions at issue in US – Clove Cigarettes  and EC – Seal Products , on the one hand, and the 
exemptions to the amended COOL measure, on the other hand. While the former "were central to 
                                               
231 Brazil's third participant's submission, para . 7 (referring to Appe llate Body Reports, US – COOL , 
para. 269). 
232 Brazil's third participant's submission, para . 12 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 322). 
233 Brazil's third participant's submission, para. 14. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the relevant regulatory distinctions in those di sputes", the latter "are not relevant regulatory 
distinctions".234 Accordingly, the findings relating to the exemptions in US – Clove Cigarettes  and 
EC – Seal Products  have no relevance for the exemptions of the amended COOL measure in the 
present disputes. Fifth, China takes issue with the United States' argument that the exemptions 
contributed to the reduction of costs of the amended COOL measure. In China's view, the 
exemptions' contribution to the reduction in costs is irrelevant to the determination of whether the detrimental impact of the amended COOL meas ure stems only from legitimate regulatory 
distinctions. Otherwise, the national treatmen t obligation of Article 2.1 could easily be 
circumvented by granting some kind of exemption reducing cost.  
2.212.  Regarding Article 2.2 of the TBT Agreemen t, China disagrees with Canada's and Mexico's 
contention that the Panel erred in failing to consider the relative importance of the values or 
interests furthered by the amended COOL measure in assessing "the risks non-fulfilment would 
create". First, China submits that there is no "clear-cut hierarchy among the numerous values stipulated in Article 2.2 of the [TBT Agreement]".
235 Second, China considers that determining the 
"relative importance" of an objective involves subjective judgement and submits that Members are 
free to decide which policy objectives and at which levels they wish to pursue. Third, there is no clear correspondence between the objectives pursued and trade-restrictiveness, and, thus, a 
measure could be found to be inconsistent with Article 2.2 of the TBT Agreement when it exceeds 
the necessary level to "fulfil" the objective, even if it pursues an "important" objective.  
2.213.  With regard to the burden of proof for id entifying alternative measures under Article 2.2 of 
the TBT Agreement, China disagrees with Canada and Mexico that the Panel "set[] the bar overly 
high" for the complainants to establish a prima facie  case of violation under Article 2.2 with 
respect to the third and fourth proposed alternative measures.
236 In China's view, in order to 
establish a prima facie  case, the complainant must provide evidence to prove that an alternative is 
not merely a theory but is reasonably available. Ch ina adds that "lowering the bar" of establishing 
a prima facie  case would blur the difference between the "necessity" tests in Article 2.2 of the 
TBT Agreement and Article XX of the GATT 1994.237 
2.214.  With respect to the Panel's findings under Article III:4 of the GATT 1994, China disagrees 
with the United States' argument that the Panel erred in failing to consider Article IX of the GATT 1994 as context of Article III:4. For China, Ar ticle IX does not constitute an exemption from 
Article III because nothing in Article IX indicates the right of a Member to depart from the 
obligations set out in Article III. Rather, Article IX establishes additional obligations for Members in 
relation to marks of origin. In the alternative, China submits that, even if Article IX allowed derogation from the obligation under Article III:4,  the United States failed to demonstrate that 
Article IX is applicable in this case and that the requirements set out in this provision are satisfied. 
2.215.  Finally, China also disagrees with the United States' contention that the Panel erred in not 
addressing the availability of Article XX [of the GATT 1994] as an exception for Article III:4 of the 
GATT 1994 with respect to the amended COOL measure. China submits that the United States 
failed to advance the defence under Article XX or  identify any subparagraph thereof as relevant 
before the Panel and, thus, did not meet its burden of proof in this respect. Moreover, China states that Article XX can always be invoked by a Member if it considers that the exceptions set out 
therein are applicable, and, thus, it is not the ca se that the United States could have access to 
Article XX only after the publication of the Appellate Body reports in EC – Seal Products .  
2.7.4  Colombia 
2.216.  Colombia submits that the Panel erred in its interpretation of Article 2.2 of the 
TBT Agreement because it failed to establish a clea r legal test, and because it erred in applying the 
phrase "taking account of the risks non-fulfilment would create" in that provision to the amended 
COOL measure. First, with regard to the legal test under Article 2.2, Colombia maintains that the 
Panel identified six factors as relevant to the an alysis, however, the Panel failed to consider the 
relationships between these different factors. For Colombia, this resulted in an incorrect weighing and balancing of the risks at issue in the present case. Colombia therefore supports Canada's claim 
                                               
234 China's third participant's submission, para. 18 (q uoting Mexico's appellee's submission, para. 67). 
235 China's third participant's submission, para. 23. 
236 China's third participant's submission, para. 27. 
237 China's third participant's submission, para. 32. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 that the Panel should have clarified how it intended to address the relevant factors of the analysis 
under Article 2.2. 
2.217.  Second, Colombia asserts that the Panel erred in limiting its assessment of "the risks 
non-fulfilment would create" to only two criteria, namely, consumer interest in country of origin 
information, and willingness of consumers to pay for this information. For Colombia, the Panel 
failed to explain why only these criteria are relevant for assessing "the risks non-fulfilment would create", to the exclusion of any other criteria. In particular, Colombia argues that the Panel should 
have considered the design, structure, and arch itecture of the amended COOL measure as an 
element that may shed light on the gravity of the consequences of not fulfilling the measure's 
objective. In particular, Colombia submits that it is evident from the design of the amended COOL measure that the United States, itself, does not consider the consequences of non-fulfilment of the 
amended COOL measure to be grave, because th e Label E requirements of the amended COOL 
measure, itself, allow for providing inaccurate information.  
2.218.  Furthermore, Colombia disagrees with the United States' argument that the Panel erred by 
not addressing the availability of an Article XX  exception with respect to Article III:4 of the 
GATT 1994. Colombia notes that the United States did not invoke Article XX, and merely proposed a "hypothetical situation" for the Panel's consideration.
238 It was, therefore, correct of the Panel 
not to address the availability of an exception under Article XX, given the fact that the 
United States had not provided specific evidence or arguments in this regard. For Colombia, a panel should not make findings "based on hypothetical situations".
239  
2.219.  In addition, Colombia addresses the issue of  the availability of the general exceptions of 
Article XX of the GATT 1994 to justify violations of provisions of covered agreements other than 
the GATT 1994. In this regard, Colombia refers to the Appellate Body reports in China – Rare 
Earths , and emphasizes the requirement of an objectiv e link between the provision that is alleged 
to be violated and the provision of the GATT 1994.240  
2.220.  Moreover, Colombia addresses the relation ship between Article III:4 of the GATT 1994 and 
Article 2.1 of the TBT Agreement, and notes th at the national treatment obligations under 
Article 2.1 and Article III:4 use the same terms, namely, "like products" and "treatment no less 
favourable". Colombia agrees with the Appellate Body in EC – Seal Products  that, "in interpreting 
Article 2.1 of the TBT Agreement, a panel should focus on the text of Article 2.1, read in the context of the TBT Agreement, including its preamble, and also consider other contextual 
elements, such as Article III:4 of the GATT 1994."
241  
2.221.  Finally, with regard to Canada's and Mexico's non-violation claims under Article XXIII:1(b) 
of the GATT 1994, Colombia addresses the criteria fo r exercising judicial economy in this regard. 
While Colombia does not wish to comment on Canada's and Mexico's requests that the 
Appellate Body reverse the Panel's decision to exercise judicial economy, Colombia considers that the Appellate Body might "shed some light" on the application of Article XXIII:1(b) of the 
GATT 1994.
242 
2.7.5  European Union 2.222.  With respect to Article 2.1 of the TBT Agreement, the European Union notes that the 
participants do not challenge the Panel's findings on the detrimental impact of the amended COOL 
measure. Rather, the United States invokes the im propriety of relying on increased recordkeeping 
only as an aspect of the analysis of legitimate regulatory distinctions. However, for the European Union, the question of whether or not an increase in recordkeeping is relevant to the Article 2.1 
analysis is more properly an issue of detrimental impact. In this regard, the European Union 
maintains that the amended COOL measure's detrimental impact on imports should be assessed on its own terms, and not by comparing it to th at of the original COOL measure. Thus, the key 
                                               
238 Colombia's third participant's submission, para. 23. 
239 Colombia's third participant's submission, para. 23. 
240 Colombia's third participant's submission, para s. 25-27 (referring to Appellate Body Reports, China – 
Rare Earths,  para. 5.74). 
241 Colombia's third participant's submission, para. 35 (quoting Appellate Body Reports, EC – Seal 
Products , para. 5.122, in turn referring to Appellate Body Report, US – Clove Cigarettes , para. 100). 
242 Colombia's third participant's submission, para. 45. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 question is not whether the recordkeeping burden or segregation under the amended COOL 
measure has increased as compared to the original COOL measure, but whether, as such, the amended COOL measure has a detrimental impact on imports.  
2.223.  The European Union further submits that compliance with the recommendations of a panel 
may be achieved by adopting measures that are simultaneously more trade restrictive and more 
even handed. However, the European Union disagrees with the United States' argument that the inquiry into whether a measure's detrimental impact stems exclusively from a legitimate 
regulatory distinction should be limited to those elements of a measure that, in themselves, cause 
detrimental impact on imports. Rather, all aspects of a measure that speak to its design and architecture are relevant. Therefore, it would have been correct for the Panel to consider arguments relating to the three exemptions from coverage, as well as arguments relating to 
Labels D and E and the prohibition of trace-back. For the European Union, these are all aspects of 
the amended COOL measure's design, architecture, revealing structure, operation and application to be taken into account in the assessment of even-handedness, even if these aspects of the 
measure are not relevant regulatory distinctions that impact imports detrimentally. 
2.224.  Furthermore, the European Union agrees with Canada that even hypothetical or rare 
categories of transactions could be considered as  an aspect of the design and architecture of a 
measure that shows a lack of even-handedness. For the European Union, it would be relevant for 
the analysis of even-handedness if certain relevant scenarios were treated more, or less, favourably for reasons that have nothing to do with a measure's purported aim or other legitimate objective, even if those scenarios do not (or do not yet) frequently occur in practice. At the same 
time, the variety of features of a measure may no t all be explained by one overriding objective. 
Thus, mitigating adverse effects on a conflicting objective, or the pursuit of another objective 
implicated by the measure, could legitimately explain "looser regulatory approaches in some 
markets or market segments".
243 
2.225.  Turning to Article 2.2 of the TBT Agr eement, the European Union first addresses the 
structure and sequence of the analysis under that  provision. In particular, the European Union 
submits that the analysis of whether a measure is more trade restrictive than necessary involves a 
"relational" and a "comparative" analysis, which are closely interlinked. For the European Union, it makes little sense to ask how much a measure contributes to some objective without being aware of alternatives that could contribute more, or  less. The European Union therefore supports the 
Appellate Body's finding that a "comparative" analysis is required "in most cases", and submits 
that quantifying the difference, if any, be tween "most cases" and "all but exceptional 
circumstances" seems to be a "fruitless task".
244  
2.226.  With regard to the contribution of the measure at issue to the legitimate objective, the 
European Union agrees with Canada's and Mexico's argument that, just because Labels D and E are neither challenged per se, nor addressed by any of the proposed alternative measures, this 
does not mean that they should be a priori  excluded from the "relational" analysis. Nonetheless, 
the European Union expresses doubt whether including the contribution of Labels D and E would have changed the outcome of the analysis under Article 2.2, because a Member may legitimately impose stricter regulatory requirements for some market segments, as long as doing so does not 
reveal incoherence or protectionism.  
2.227.  With respect to the phrase "taking account of the risks non-fulfilment would create", the 
European Union agrees with the United States that there is no "hierarchy of values" in WTO law
245, 
and that it is for a Member to decide which regulatory objective it wishes to pursue and at which 
level. The European Union disagrees with Canada and Mexico that the Panel's "necessity" analysis was flawed by the Panel's failure to reach definite conclusions on the gravity of consequences of 
non-fulfilment. For the European Union, this reading would be merely another way of saying that 
the TBT Agreement is based on a hierarchy, or a "r elative importance", of regulatory objectives. In 
addition, the European Union submits that, while the Panel was correct in considering consumer interest and willingness to pay among the issues to be taken into account, these criteria should not 
necessarily have been the only  ones to be considered.  
                                               
243 European Union's third partic ipant's submission, para. 24. 
244 European Union's third particip ant's submission, paras. 47-48. 
245 European Union's third participant's submission, para. 58 (referring to United States' appellant's 
submission, para. 260). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.228.  With respect to the proposed alternative measures, the European Union submits that they 
should, in principle, make a contribution that is equivalent to that of the challenged measure. The European Union agrees with the Panel that, in some circumstances, an alternative measure may be found to make an equivalent contribution "by covering a broader range of transactions in a less 
demanding way".
246 The burden to demonstrate that such a proposed alternative measure makes 
an equivalent contribution rests on the complainant. In this regard, the European Union submits that Canada and Mexico did not meet that burden with respect to the first and second proposed 
alternatives.  
2.229.  However, the European Union agrees with Canada's and Mexico's argument that 
"'identifying' a reasonably available alternative measure, which by necessity means identifying a 
hypothetical  scenario, cannot require a complainant to describe in detail a fully worked out 
measure ready to be put in place by a regulator."
247 Therefore, the European Union disagrees with 
the Panel that the complainant should have to sh ow "comparability between the circumstances of 
the respondent and a third country … whose measur es are put forward as an example", because it 
is for the respondent to rebut a prima facie  case of inconsistency.248 I n  t h e  s a m e  v e i n ,  t h e  
European Union considers that the Panel erred in requiring Canada and Mexico to demonstrate how and at what cost the proposed alternative measures would be implemented in the 
United States. The European Union questions the Panel's reliance on the Appellate Body's 
approach in China – Publications and Audiovisual Products , because that case concerned not the 
burden of persuasion to be met by a complainant seeking to identify alternative measures as part 
of a prima facie  claim, but that of a respondent demonstrating that the proposed alternative 
measure is not reasonably available.
249 While the European Union does not take a position on 
whether Canada and Mexico discharged their burden of proof with respect to the third and fourth 
proposed alternatives measures, the European Union nevertheless considers the Panel's approach 
to the allocation of the burden of proof under Article 2.2 of the TBT Agreement to be "excessively 
strict towards complainants".250 
2.230.  Turning to the relationship between Ar ticle III:4 of the GATT 1994 and Article 2.1 of the 
TBT Agreement, the European Union expresses a co ncern about a possible "hollowing out" of the 
TBT Agreement.251 The concern is that a measure causing detrimental impact on imports might 
de facto  violate Article III:4 of the GATT 1994, while being consistent with Article 2.1 of the 
TBT Agreement, if it even-handedly pursues a legitimate objective. This may give complainants an 
incentive to pursue national treatment claims under Article III:4 alone, which would be at odds 
with the TBT Agreement's role as a lex specialis . The European Union recalls that these concerns 
were addressed by the Appellate Body in EC – Seal Products . While the European Union does not 
question those findings, it considers the Panel's approach to Article III:4 in the present case 
questionable, because it fails to take account of the need for a harmonious and contextual interpretation of national treatment obligations across the covered agreements. The European 
Union considers that this was a central element of the Appellate Body's findings relating to 
Article III:4 in EC – Seal Products . In particular, the Panel erred in concluding that, simply because 
a finding of a detrimental impact on imports has been made under Article 2.1 of the TBT Agreement, there is automatically a violatio n of Article III:4 of the GATT 1994. Rather, in 
European Union's view, the specific and more imme diate context of Article III:4 should have been 
taken into account.  
2.231.  In particular, the European Union agrees with the United States that Article IX of the 
GATT 1994, as the most specific provision on ma rking imported products, and the Agreement on 
Rules of Origin may provide such contextual guidan ce. Thus, were the Appellate Body to find that 
the amended COOL measure follows the principles  laid down by Article IX, that may put the 
Panel's finding of less-favourable treatment under Article III:4 into question. While the European 
Union does not take a position on whether the Appellate Body should complete the legal analysis in this way, it nonetheless considers that the question merits discussion. The European Union adds that another way of interpreting Article III:4 in the context of Article IX would be by focusing on 
                                               
246 European Union's third partic ipant's submission, para. 64. 
247 European Union's third participant's su bmission, para. 69. (emphasis original) 
248 European Union's third participant's submission, para. 69 (referring to Panel Reports, para. 7.548). 
249 European Union's third participant's submission , para. 70 (referring to Appellate Body Report , China 
– Publications and Audiovisual Products , para. 327, as well as the preceding discussion in paras. 318-326). 
250 European Union's third partic ipant's submission, para. 71. 
251 European Union's third partic ipant's submission, para. 77. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 whether the detrimental impact is " attributable  to the measure at issue".252 The European Union 
explains that, under this approach, as long as a Member has complied with Article IX of the GATT 1994, the remaining detrimental impact "should no longer be attributed to the measure" but, rather, to "subsequent market developments, such as the lack of investment by private actors in 
innovative processing techniques or distribution channels".
253 
2.232.  With regard to the United States' argument  regarding the availability of an Article XX of 
the GATT 1994 exception for the amended COOL measure, the European Union notes that the 
United States did not put forward a defence of Article XX, and failed to identify any specific 
subparagraph of Article XX that wo uld be applicable in the present case. The European Union notes 
that panels are not required to apply Article XX on  their own motion whenever a violation of some 
provision is invoked. Moreover, the European Union considers it unclear whether any subparagraph 
of Article XX applies in the present case. If it  were to speculate, the European Union would 
consider that Article XX(d) "might seem to offer some support to the amended COOL measure".254 
However, the European Union observes that, in order to justify the amended COOL measure under 
Article XX(d), the United States would had had to identify another domestic measure separate to 
the amended COOL measure. In addition, th e amended COOL measure would have to be 
necessary to secure compliance with that other domestic measure. In any event, to the extent that 
the balance between the obligations contained in  the TBT Agreement and the obligations of the 
GATT 1994 can be preserved by interpreting the GATT 1994 in a way that respects legitimate regulatory objectives as much as the TBT Agreem ent does, the Appellate Body should adopt such 
an approach. 
2.233.  Finally, with respect to Canada's and Me xico's non-violation claims, the European Union 
submits that the proposition that "a non-violation claim can never  be made in compliance 
proceedings" would be incorrect.
255 By way of illustration, the European Union refers to a situation 
where original proceedings would consist of a single non-violation claim and there would be a 
recommendation by the DSB that the Member concerned make a mutually satisfactory adjustment under Article 26.1(b) of the DSU. If, in such ca se, a Member would recast the original measure 
instead of offering compensation, it would be questionable whether this would be a "mutually 
satisfactory adjustment". Consequently, there wo uld be a "disagreement" as to the consistency 
with a covered agreement (Article 26.1 of the DSU) of a measure taken to comply.
256 In the case 
of a successful non-violation complaint, the recommendation made under Article 26.1(b) of the 
DSU is "the necessary foundation for the subsequent  'disagreement as to … consistency' within the 
meaning of Article 21.5".257 The European Union notes that, to the contrary, in the absence of a 
successful non-violation claim in the original proceedings, a non-violation claim cannot be raised in 
compliance proceedings.  
2.7.6  Japan 2.234.  With respect to Article 2.1 of the TBT Agreement, Japan submits that providing general 
information on origin to consumers can be a legitimate objective pursued by a technical regulation. 
However, Japan urges that, in fulfilling this legiti mate objective, a government should not demand 
more information than necessary to satisfy the objective. In Japan's view, the regulatory distinctions drawn by a technical regulation im posing detailed COOL requirements "may not be 
'legitimate' in the first place where the government intervention does not respond to consumer 
demand and the more detailed information can be voluntarily provided by suppliers to consumers in the market."
258 In the absence of consumer demand, the detrimental impact of such regulatory 
distinctions would have no "'rational connection to the objective' pursued by the measure and … 
would constitute arbitrary or unjustifiable discrimination contrary to Article 2.1 of the TBT Agreement."
259 Japan also notes that the assessment of the "legitimacy" of the regulatory 
distinction under Article 2.1 should be conducted together with the analysis of the "disconnect" 
                                               
252 European Union's third participant's su bmission, para. 83. (emphasis original) 
253 European Union's third partic ipant's submission, para. 83. 
254 European Union's third partic ipant's submission, para. 89. 
255 European Union's third participant's su bmission, para. 96. (emphasis original) 
256 European Union's third partic ipant's submission, para. 96. 
257 European Union's third participant's submission, para. 101. 
258 Japan's third participant's submission, para. 9. 
259 Japan's third participant's submission, para. 10. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 between the information required from upstream  producers and the information conveyed to 
consumers through the labels prescribed under the amended COOL measure.260  
2.235.  Furthermore, Japan takes issue with the United States' argument that the Panel erred in 
analysing hypothetical scenarios when examining whether the detrimental impact of the amended 
COOL measure stems exclusively from legitimate regulatory distinctions. In Japan's view, 
hypothetical situations would seem relevant to the examination of the design, architecture, revealing structure, operation, or application of the measure because such situations may arise in 
the future, and therefore should not necessar ily be excluded from the assessment of the 
measure's even-handedness. However, Japan cautions that potential situations or hypothetical scenarios are relevant only to the extent that they relate to how the regulatory distinctions operate and are applied in the particular market at issue.  
2.236.  Turning to the relationship between th e relevant regulatory distinctions and the 
exemptions to the amended COOL measure, Japa n submits that, although  the exemptions are 
relevant to the analysis of "treatment no less favourable", they are not, on their own, dispositive 
as to whether the relevant regulatory distinct ion under the amended COOL measure lacks "even-
handedness" in its design and application. Japan explains that, by excluding "a considerable portion"
261 of meat products from the COOL requirements, the exemptions effectively create an 
additional product category of "unknown" or "unidentified" origin262, which precludes products from 
being classified under Categories A-D. Thus, "t he difference in labelling conditions under the 
amended COOL measure does not appear to be cali brated to the regulatory distinctions drawn by 
that measure."263 For these reasons, Japan concludes that the exemptions are sufficiently 
connected to the relevant regulatory distinctions. 
2.237.  Japan disagrees with the Panel's conclu sions regarding the source of the detrimental 
impact. According the Japan, it is not the regulatory distinctions, but the recordkeeping and 
verification requirements imposed by the amen ded COOL measure that cause the detrimental 
impact on imports. Thus, Japan argues that th e relationship between the exemptions and the 
scope of the recordkeeping and verifications requirements, and how the former affect the latter in 
the particular market, are relevant factors to be carefully scrutinized in these proceedings. In 
addition, with respect to the United States' argu ment that the exemptions are justifiable as a 
"legitimate policy choice to reduce regulatory costs", Japan maintains that such justification must be scrutinized in the light of, inter alia , the measure's objective of providing origin information to 
consumers.
264  
2.238.  With respect to the relationship between Article 2.1 of the TBT Agreement and Article III:4 
and XX of the GATT 1994, Japan notes that the scope of legitimate objectives under the 
TBT Agreement is broader than that under Article XX  of the GATT 1994. First, the analysis of what 
can be considered as a legitimate objective may be informed by the objectives listed in Article 2.2 and the sixth and seventh recitals of the preamble of the TBT Agreement, as well as the objectives 
recognized in the provisions of other covered agreements. Second, Japan argues that, in analysing 
the relationship between Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994, each 
agreement needs to be considered as a whole. To the extent that there is potential for an imbalance between the obligations set out in these ag reements, this should be a relevant factor to 
be taken into account in the analysis of the rela tionship between the two agreements. Third, Japan 
recognizes that, although arguments in favour of a more flexible interpretation of Article III:4 of the GATT 1994 exist, this approach does not appear to be in line with the case law developed by 
the Appellate Body.
265 Japan recalls that the Appellate Body has been reluctant to accept 
considerations based on the objectives of the measure to determine whether there is "less favourable treatment". Furthermore, Japan is of the view that such a more flexible approach to the 
interpretation of Article III:4 might raise the question as to whether this would render Article XX of 
the GATT 1994 meaningless. 
                                               
260 Japan's third participant's submission, para. 11. 
261 Japan's third participant's submission, pa ra. 17 (quoting Appellate Body Reports, US – COOL , 
para. 344, in turn quoting Original Panel Reports, US – COOL , para. 7.417). 
262 Japan's third participant's submission, para. 17. 
263 Japan's third participant's submission, para. 17. 
264 Japan's third participant's submission, paras. 24-25 (referring to United States' appellant's 
submission, paras. 210-215; and Appellate Body Reports, US – COOL , paras. 271 and 340). 
265 Japan's third participant's submission, para . 32 (referring to A ppellate Body Report, Korea – Various 
Measures on Beef , para. 137). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.239.  Turning to the relationship between Arti cle III:4 and Article IX of the GATT 1994, Japan 
recognizes that Article IX may provide context for the interpretation of Article III:4 in relation to marks of origin measures. However, Japan expresses a concern that such interpretation could lead to a conclusion that Article IX "reduces the normative scope" of Article III:4 and provides 
"a carve-out" for violations of Article III:4.
266 In addition, Article III:4 and Article IX "provide 
different and distinct disciplines, and … regulate Members' conduct in a cumulative manner".267 
Therefore, Japan does not consider that labelling requirements on the origin of products are 
excluded from the scope of Article III:4 of the GATT 1994. 
2.240.  With respect to Article 2.2 of the TBT Agreement, Japan disagrees with Canada's and 
Mexico's argument that the "comparative" analysis inherently assumes that the challenged measure's trade-restrictiveness is "necessary" in order to fulfil the legitimate objective. In this 
respect, Japan recalls that the inquiry under Article 2.2 is a holistic exercise involving both a 
"relational" analysis and a "comparative" analysis. Furthermore, according to the Appellate Body in the original proceedings in US – COOL , the "comparative" analysis is part of an overall weighing 
and balancing exercise and should be undertaken in most cases, unless the inconsistency of a 
technical regulation with Article 2.2 can be unequivocally established without such analysis.
268  
2.241.  Japan agrees with the Panel's finding that "the relative importance of interests or values 
protected by a measure is not a separate factor of the Article 2.2 legal test."269 It can be examined 
in the assessment of the nature of the risks at issue and the gravity of the consequences that 
would arise from non-fulfilment of the legitimate objective. With respect to the alternative measures, Japan agrees with Canada that they are hypothetical in nature and should not be 
required to be identified with unnecessary precisio n. Finally, Japan adds that, under Article 2.2, 
the complainant's burden to establish a prima facie  case includes identification of a possible 
reasonably available alternative measure, while the respondent should rebut the complainant's 
prima facie  case by presenting evidence and arguments to demonstrate that the proposed 
alternative is "merely theoretical in nature", impossible to undertake, or that it would impose an "undue burden" on the Member, such as prohibitive costs or substantial technical difficulties.
270 
2.7.7  Korea 
2.242.  At the oral hearing, Korea commented on two issues. First, Korea addressed the meaning 
of "compliance" under Article 21 of the DSU. Se cond, Korea addressed the relationship between 
Article 2.1 of the TBT Agreement and Article III:4 of  the GATT 1994. With regard to the first issue, 
Korea is of the view that "compliance" encompasse s more than the withdrawal or modification of 
the measure at issue. Thus, while addressing concerns articulated by a panel or the Appellate Body is an important element in the implementation of DSB recommendations and rulings, the genuine 
meaning of compliance is to bring the measure at issue into conformity in good faith with the 
obligations under the agreement at issue. Accordin gly, in the present disputes, the issue before 
the Appellate Body is not only whether the United States has addressed the concerns identified by 
the Appellate Body in the original proceedin gs, but whether the amended COOL measure has 
removed discrimination against imported livestock, which does not stem exclusively from legitimate regulatory distinctions. Second, Korea highlighted the systemic importance of clarifying the relationship between Article 2.1 of the TB T Agreement and Article III:4 of the GATT 1994. 
Korea explained that a detrimental impact that stems from legitimate regulatory distinctions may 
be found to be consistent with Article 2.1 of the TBT Agreement, while violating Article III:4 of the 
GATT 1994, if Article XX of the GATT 1994 does not pr ovide an exception. For Korea, this may lead 
to confusion and cause implementation problems.  
                                               
266 Japan's third participant's submission, para. 38. 
267 Japan's third participant's submission, para. 39. (fn omitted) 
268 Japan's third participant's submission, para . 43 (referring to Appe llate Body Reports, US – COOL , 
para. 374). 
269 Japan's third participant's submission, para. 44 (quoting Panel Reports, para. 7.379, and referring to 
para. 7.311). 
270 Japan's third participant's submission, para. 47 (quo ting Panel Reports, para. 7.555, in turn quoting 
Appellate Body Report, Brazil – Retreaded Tyres , para. 156, in turn quot ing Appellate Body Report, US – 
Gambling , para. 308). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 2.7.8  New Zealand 
2.243.  With regard to the Panel's analysis of Article 2.1 of the TBT Agreement, New Zealand 
submits that the Panel was correct in considerin g elements of the amended COOL measure that 
are not, themselves, relevant regulatory distinctions or independent sources of detrimental impact 
in its analysis of the "overall architecture" of  the measure. While individual elements of the 
measure, when viewed in isolation, may appear to  be consistent with Article 2.1, the combined 
effect may nevertheless be inconsistent if the nature or number of distinctions is such that the 
technical regulation, as a whole, accords less-favourable treatment to imported products. 
2.244.  With respect to Article 2.2 of the TBT Agreement, New Zealand offers comments on three 
issues. First, regarding the interpretation of the phrase "taking account of the risks non-fulfilment 
would create", New Zealand does not consider that the relative importance of the legitimate 
objective of the measure constitutes a separate factor in the analysis. Rather, this element is part 
of the analysis of the nature of the risks and gr avity of the consequences of non-fulfilment. For 
New Zealand, consideration of the nature of the ri sks and of the gravity of the consequences will 
necessarily, although indirectly, include consideration of the "importance" of the objective.  
2.245.  Second, with respect to the complainant's burden of proof to present a prima facie  case for 
an alternative measure, New Zealand recalls that the Appellate Body in US – Tuna II (Mexico) 
referred to at least two instances where a complainant may be absolved from this burden: 
(i) when the challenged measure is not trade restrictive at all; or (ii) when a challenged measure makes no contribution to the achievement of the relevant legitimate objective.
271 New Zealand 
considers that, if neither of the instances identified by the Appellate Body is applicable, then the 
burden rests on the complainant to establish a prima facie  case that an alternative measure that 
meets the requirements of Article 2.2 exists.  
2.246.  Finally, with respect to the degree of contribution to the objective that an alternative 
measure is required to achieve, New Zealand points out that "[a]n alternative measure may make 
a greater contribution, or only a generally equivalent contribution to the legitimate objective".272 In 
only "very rare cases" may a proposed alternative measure that makes a lesser contribution 
demonstrate that the challenged measure is more trade restrictive than necessary.273 New Zealand 
cautions against adopting an interpretative approach "that would routinely favour alternative measures that make a lesser contribution to the achievement of the legitimate objective".
274 
3  ISSUES RAISED IN THIS APPEAL 
3.1.  With respect to the Panel's findings that the amended COOL measure is inconsistent with 
Article 2.1 of the TBT Agreement, the follow ing issues are raised by the participants: 
a. whether the Panel erred in concluding that the detrimental impact of the amended COOL 
measure on imported livestock does not stem  exclusively from legitimate regulatory 
distinctions, and, in particular: 
i. whether the Panel erred in finding that the amended COOL measure increases the 
recordkeeping burden entailed by the origin al COOL measure, and that this supports 
a conclusion that the detrimental impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions (issue raised by the United States); 
ii. whether the Panel erred in finding that Labels B and C, as prescribed by the 
amended COOL measure, are potentially inaccurate, and that this supports a 
conclusion that the detrimental impact of that measure on imported livestock does 
not stem exclusively from legitimate regulatory distinctions (issue raised by the 
United States); and  
                                               
271 New Zealand's third participant's submission, para. 10 (referring to Appellate Body Report, US – 
Tuna II (Mexico) , para. 322; and United States' appellee's submission, para. 52). 
272 New Zealand's third participant's submission, para. 13. 
273 New Zealand's third participant's submission, para. 13. 
274 New Zealand's third participant's submission, para. 13. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 iii. whether the Panel erred in finding that th e exemptions prescribed by the amended 
COOL measure support the conclusion that the detrimental impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions (issue raised by the United States);  
b. whether the Panel erred by failing to assess appropriately the relevance of Label D for 
the analysis of whether the detrimental impact of the amended COOL measure on 
imported livestock stems exclusively from legitimate regulatory distinctions (issue raised 
by Canada); 
c. whether the Panel erred by failing to assess appropriately the relevance of Label E for 
the analysis of whether the detrimental impact of the amended COOL measure on 
imported livestock stems exclusively from legitimate regulatory distinctions (issue raised 
by Canada and Mexico); and  
d. whether the Panel erred by failing to assess appropriately the relevance of the 
prohibition of a trace-back system under th e amended COOL measure for the analysis of 
whether the detrimental impact of that measure on imported livestock stems exclusively 
from legitimate regulatory distinctions (issue raised by Canada). 
3.2.  With respect to the Panel's findings unde r Article 2.2 of the TBT Agreement, the following 
issues are raised by the participants: 
a. in respect of the sequence and order of the "necessity" analysis under Article 2.2: 
i. whether the Panel erred by failing to articulate correctly the relational component of 
the analysis under Article 2.2 (issue raised by Canada);  
ii. whether the Panel erred by failing to describ e how different factors are to be weighed 
and balanced against each other under the "relational" analysis (issue raised by Canada); 
iii. whether the Panel erred by failing to clarify that the "comparative" analysis does not 
necessarily prevail over the "relational" analysis (issue raised by Canada); and 
iv. whether the Panel erred by stating that a "comparative" analysis would only be 
redundant in exceptional circumstances, and in concluding that such "exceptional 
circumstances" must be demonstrated befo re any "overall" conclusions with respect 
to Article 2.2 may be drawn from the "relational" analysis (issue raised by Mexico); 
b. whether the Panel erred by excluding Labels D and E (issue raised by Canada), or 
Label E only (issue raised by Mexico), in its analysis of the contribution of the amended 
COOL measure to its objective, and, therefore, in concluding that the amended COOL measure makes a "considerable but necessarily partial" degree of contribution to its 
objective; 
c. with respect to the interpretation and applic ation of the phrase "taking account of the 
risks non-fulfilment would create" in Article 2.2: 
i. whether the Panel erred in contemplating that an alternative measure providing less 
specific or less accurate information could qualify as making an "equivalent" degree of contribution as compared to the amended COOL measure (issue raised by the United States); 
ii. whether the Panel erred by failing to take into account the relative importance of the 
values or interests furthered by the amended COOL measure (issue raised by Canada and Mexico); 
iii. whether the Panel erred by failing to take into account the design, structure, and 
architecture of the amended COOL measure (raised by Canada and Mexico); and WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 iv. whether the Panel erred in concluding that it was unable to ascertain the gravity of 
the consequences of non-fulfilment of the amended COOL measure's objective (issue raised by Canada and Mexico);  
d. whether the Panel erred in finding that Canada and Mexico did not make a prima facie  
case that the first and second proposed alternative measures would make an 
"equivalent" degree of contribution to th e amended COOL measure's objective (issue 
raised by Canada and Mexico); and 
e. whether the Panel erred in finding that Canada and Mexico did not make a prima facie  
case that the third and fourth proposed al ternative measures are reasonably available 
for purposes of their claims under Article 2.2 (issue raised by Canada and Mexico). 
3.3.  With respect to the Panel's finding that the amended COOL measure is inconsistent with 
Article III:4 of the GATT 1994, whether the Panel erred by failing to take into account Articles IX:2 
and IX:4 of the GATT 1994 as relevant context in  interpreting Article III:4 of the GATT 1994 (issue 
raised by the United States). 
3.4.  Whether the Panel erred in the way it addressed the United States' request at the interim 
review stage regarding the availability of Ar ticle XX of the GATT 1994 as an exception for 
Article III:4 of the GATT 1994 with respect to th e amended COOL measure (issue raised by the 
United States). 
3.5.  In the event that the Appellate Body reve rses the Panel's findings that the amended COOL 
measure is inconsistent with Article 2.1 of th e TBT Agreement and Articl e III:4 of the GATT 1994, 
whether the Panel erred by exercising judicial economy with respect to Canada's and Mexico's 
non-violation claims under Article XXIII:1(b) of the GATT 1994 (issue raised by Canada and 
Mexico). 
3.6.  In the event that the condition of Canada's  and Mexico's appeals under Article XXIII:1(b) of 
the GATT 1994 is fulfilled, whether the Panel erred in concluding that the complainants' claims 
under Article XXIII:1(b) were within the Panel's terms of reference (issue raised by the United States).  
4  BACKGROUND AND OVERVIEW OF THE MEASURE AT ISSUE 
4.1.  Before turning to the analysis of the issues raised in this appeal, we provide an overview of 
the measure at issue in these disputes, as identified by the Panel.  
4.1  Introduction 
4.2.  The measure at issue in the original disputes comprised the "COOL statute"
275, adopted by 
the US Congress, and related implementing regulations, promulgated by the US Secretary of Agriculture through the Agricultural Marketing Service (AMS) of the US Department of 
Agriculture
276 (USDA) (2009 Final Rule (AMS)), which, in these Reports, we refer to collectively as 
the "original COOL measure". Other measures consid ered by the original panel have either expired 
or have been withdrawn and are not at issue in these compliance proceedings.277 
                                               
275 The Agricultural Marketing Act of 1946 (60 Stat. 1087, United States Code , Title 7, Section 1621 
et seq.) (Panel Exhibit CDA-3), as amended by the Farm Security and Rural Investment Act of 2002 (116 Stat. 134, 533-535, Public Law No. 107-171, Section 10816: "Country of Origin Labeling" (Panel Exhibit CDA-4)) (2002 Farm Bill) and the Food, Conservation, and Energy Act of 2008, 122 Stat. 923, 1351-1354, Public Law No. 110-234 (22 May 2008), Section 11002: "Country of Origin Labeling" (Panel Exhibit CDA-5) (2008 Farm Bill). Through the enactment of the 2002 and 2008 Farm Bills, the COOL requirements were 
inserted into the Agricultural Marketing Act of  1946 as Section 1638, and in turn codified under United States 
Code, Title 7, Section 1638. (See Original Panel Reports, US – COOL , paras. 7.12-7.13 and 7.77) 
276 USDA, Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, 
Wild and Farm-Raised Fish and Shellfish, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and 
Macadamia Nuts, United States Federal Register , Vol. 74, No. 10 (15 January 2009) pp. 2704-2707 (Panel 
Exhibits CDA-2 and MEX-12).  
277 Panel Reports, para. 7.7.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 4.3.  These compliance disputes concern measures adopted by the United States to comply with 
the DSB recommendations and rulings in US – COOL . As noted by the Panel, the AMS of the USDA 
issued the final rule, effective 23 May 2013278 (2013 Final Rule), in order "to make changes to the 
labeling provisions for muscle cut covered commodities and certain other modifications".279 The 
COOL statute, which constituted part of the original COOL measure, remains unchanged.280 In 
these Reports, we refer to the COOL statute an d the 2009 Final Rule (AMS), as amended by the 
2013 Final Rule, collectively as the "amended COOL measure". The amended COOL measure 
maintains the key elements of the original COOL measure281, in particular: (i) the wide range of 
"covered commodities", including muscle cuts of beef and pork, as well as ground beef and pork
282; (ii) the four different origin categories for muscle cuts of meat and one additional origin 
category for ground meat283; (iii) rules concerning the way in which information is provided to the 
consumer284; and (iv) recordkeeping and verification requirements.285 The main changes 
introduced by the amended COOL measure concern:  (i) the prescription of a point-of-production 
labelling requirement – i.e. a requirement that Labels A, B, and C for muscle cuts of 
US-slaughtered livestock indicate where each production step (birth, raising, slaughter) 
occurred286; (ii) the removal of the commingling and country order flexibilities287; (iii) the 
amendment of the multiple countries of raising flexibility288; and (iv) the amendment of the 
coverage of Label D.289  
4.2  Overview of the amended COOL measure 4.4.  The amended COOL measure is an internal measure of the United States, as opposed to a 
customs or border measure.
290 It requires retailers in the United States to affix labels providing 
country of origin information on certain products. This obligation applies irrespective of whether 
the products are imported or domestically produced. The measure applies to a wide range of commodities, including muscle cuts and ground meat  of beef and pork. Although livestock are not 
formally listed as "covered commodities" under the amended COOL measure, the Panel found that, 
for the same reasons as set out in the original panel reports, the amended COOL measure applies also to cattle and hogs.
291 The products at issue in these disputes are cattle and hogs used in the 
production of beef and pork.292 The definition of "origin" of meat under the original and amended 
COOL measures differs from the conception of "o rigin" generally employed by the United States 
and other Members for customs purposes. While, for customs purposes, the United States relies on the rule of substantial transformation for determining the origin of products imported into the 
United States
293, the original and amended COOL measures define "origin" for purposes of 
Labels A, B, and C as a function of where the an imals from which the meat is derived were born, 
raised, and slaughtered.294 Under the COOL measures, meat carrying Labels A, B, and C may have 
one or more countries of origin, depending on where these production steps took place. Similarly, 
meat carrying Label E (ground meat) may have one or more countries of origin, as the label must list all countries of origin of the meat contained therein, or of meat that may reasonably be 
                                               
278 USDA, Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, 
Wild and Farm-Raised Fish and Shellfish, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, United States Federal Register , Vol. 78, No. 101 (24 May 2013), pp. 31367-31385 (Panel 
Exhibits CDA-1 and MEX-3). 
279 Panel Reports, para. 7.8 (quoting 2013 Final Rule, p. 31367). 
280 Panel Reports, para. 7.9. 
281 Panel Reports, para. 7.55. For additional details with regard to the original COOL measure, see 
Appellate Body Reports, US – COOL , paras. 237-253; and Original Panel Reports, US – COOL , 
paras. 7.75-7.142. 
282 Panel Reports, para. 7.25. 
283 Panel Reports, para. 7.12. 
284 Panel Reports, para. 7.22. 
285 Panel Reports, para. 7.45. 
286 Panel Reports, para. 7.18. 
287 Panel Reports, paras. 7.34 and 7.37. 
288 Panel Reports, paras. 7.40-7.43. 
289 Panel Reports, para. 7.19. 
290 Panel Reports, para. 7.635 (referring to Canada's first written submission to the Panel, para. 93; and 
Mexico's first written submission to the Panel, para. 224).  
291 Panel Reports, paras. 7.25-7.26 (quoting Original Panel Reports, US – COOL , para. 7.246). 
292 Panel Reports, para. 7.26 (quo ting Original Panel Reports, US – COOL , para. 7.246). 
293 The rule of substantial transformation confers orig in exclusively to the country where the processing 
of food took place, which, in the case of meat , is the country where the animal was slaughtered. 
(Appellate Body Reports, US – COOL , para. 241) 
294 Panel Reports, para. 7.10 (referri ng to Appellate Body Reports, US – COOL , paras. 240-241).  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 contained therein.295 The origin of meat carrying Label D is determined based on the criterion of 
substantial transformation that confers origin to the country where the animal was slaughtered.296  
4.5.  The amended COOL measure permits the same  methods for conveying origin information as 
the original COOL measure. Specifically, requisite information may be conveyed to consumers "by 
means of a label, stamp, mark, placard, or othe r clear and visible sign on the covered commodity 
or on the package, display, holding unit, or bin co ntaining the commodity at the final point of sale 
to consumers".297 The amended COOL measure allows the use of country abbreviations 
(e.g. "U.S." and "USA" for "United States of Amer ica"), and abbreviations for the production steps 
(e.g. "slghtrd" as me aning "slaughtered").298 In addition, the amended COOL measure maintains 
the permission of the use of the term "harvested" in lieu of "slaughtered".299 
4.6.  In addition to requiring retailers to provide information on the origin of beef and pork, the 
amended COOL measure maintains the requirements for upstream suppliers of meat products to 
provide retailers with information on the origin of the meat supplied. The recordkeeping and verification rules of the original COOL meas ure remain unchanged under the amended COOL 
measure.
300 The US Secretary of Agriculture "may conduct an audit of any person that prepares, 
stores, handles, or distributes a covered commodity for retail sale to verify compliance" with the recordkeeping requirements.
301  
4.7.  The COOL statute limits the recordkeeping obligations for retailers and their suppliers to 
"[r]ecords maintained in the course of the normal conduct of the business of such person, including animal health papers, import or customs documents, or producer affidavits".
302 
Moreover, it expressly prohibits the USDA from imposing "a mandatory identification [trace-back] 
system to verify the country of origin of a covered commodity".303 This limitation and prohibition of 
the original COOL measure remain unchanged under the amended COOL measure.304  
4.3  Coverage of the amended COOL measure  
4.8.  The original COOL measure applied to a wide range of "covered commodities", including 
muscle cuts of beef and pork, as we ll as to ground beef and pork.305 Even though cattle and hogs 
were not formally listed as "covered commodities", the original panel found that the original COOL 
measure nevertheless applied not only to beef and pork, but also to cattle and hogs.306 The 2013 
Final Rule does not modify the original COOL measure in respect of its application to meat and livestock.
307  
                                               
295 Panel Reports, para. 7.20 (quoting 2009 Final Rule (AMS), Section 65.300(h)). 
296 Panel Reports, para. 7.15 (referri ng to Original Panel Reports, US – COOL , para. 7.674; and 
Appellate Body Reports, US – COOL , para. 241). We note that the amended COOL measure provides a 
voluntary option for Label D to "include more specific location information related to production steps". Where that option is exercised, origin under Label D is also  a function of where the animals from which the meat is 
derived were born, raised, and slaughtered. (Panel Reports, para. 7.19 (quoting 2013 Final Rule, Section 65.300(f)(2)))  
297 Panel Reports, para. 7.22 (quoting COOL statute, Section 1638a(c)(1)). 
298 Panel Reports, paras. 7.23-7.24 (quoting 2013 Final Rule, p. 31369).  
299 Panel Reports, fn 78 to para. 7.23 (quoting 2009 Final Rule (AMS), Section 65.250; and 2013 Final 
Rule, p. 31368). 
300 Panel Reports, para. 7.45. The 2009 Final Rule (AMS ) required that "[a]ny person engaged in the 
business of supplying a covered commodity to a retailer , whether directly or indirectly …, must maintain 
records to establish and identify th e immediate previous source (if ap plicable) and immediate subsequent 
recipient of a covered commodity for a period of 1 year  from the date of transaction", and must make that 
information available to the buyer. (2009 Final Rule (AMS), Section 65.500(b)(3)) See also Original Panel Reports, US – COOL , para. 7.118. 
301 Panel Reports, fn 134 to para. 7.45 (quoting COOL statute, Section 1638a(d)(1)).  
302 Panel Reports, para. 7.82 (quoting COOL statute, Section 1638a(d)(2)(A)). 
303 Panel Reports, para. 7.82 (quoting COOL statute, Section 1638a(f)(1)). 
304 Panel Reports, para. 7.45 (quoting COOL statute, Section 1638a(d)(1) and (2)(4) and 
Section 1638a(f)(1)). 
305 The "covered commodities", in addition to beef an d pork, include lamb, chicke n, goat meat, wild and 
farm-raised fish and shellfish, peri shable agricultural commo dities, peanuts, pecans, ginseng, and macadamia 
nuts. (Panel Reports, fn 82 to para. 7.25 (quoting COOL statute, Section 1638(2)(A))) 
306 Panel Reports, para. 7.26 (referri ng to Original Panel Reports, US – COOL , para. 7.246). 
307 Panel Reports, para. 7.26. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 4.9.  The original COOL measure contained thr ee exemptions from coverage. They concerned: 
(i) ingredients in "processed food items"308; (ii) products served in "food service 
establishments"309; and (iii) entities not meeting the definition of "retailer".310 The Panel found that 
the amended COOL measure retains these exemptions  and "slightly adjust[s]" the definition of 
"retailer".311 
4.10.  The original COOL measure defined "retailer" as "any person licensed as a retailer under the 
Perishable Agricultural Commodities Act of 1930 (PACA)".312 Pursuant to the terms of the PACA, 
this means that a "retailer" is an entity whose invoice costs of purchases of perishable agricultural 
commodities are in excess of US $230,000 in any calendar year.313 The 2013 Final Rule defines 
"retailer" as "any person subject to be  licensed as a retailer under the … PACA".314 The Panel also 
noted the USDA's explanation that the change in the definition clarifies that all retailers that meet 
the PACA definition of "retailer", whether or not they actually have a PACA licence, are covered by 
the amended COOL measure.315  
4.4  Categories of meat  
4.11.  The original COOL measure established four categories of origin for muscle cuts of meat 
(Categories A-D) and one additional category for ground meat (Category E).316 These categories 
remain applicable under the amended COOL measure317:  
a. Category A is reserved for meat derived from livestock born, raised, and slaughtered in 
the United States.  
b. Two categories of origin are reserved for muscle cuts derived from livestock slaughtered 
in the United States but that were born and/or raised in a different country. For each of 
these categories, at least one production step will have taken place outside the 
United States, and at least one production step will have taken place within the United States. These categories are distinguished based on whether the animals were 
born in a foreign country and then raised and slaughtered in the United States 
(Category B) , or raised outside the United States and then imported into the 
United States for immediate slaughter, that is, to be slaughtered within two weeks of the 
date the animals enter the United States (Category C) .
318  
                                               
308 A "processed food item" is defined as "a reta il item derived from a covered commodity that has 
undergone specific processing resulting in a change in  the character of the covere d commodity, or that has 
been combined with at least one other covered comm odity or other substantive food component". (Panel 
Reports, para. 7.29 (quoting 2009 Final Rule (AMS), Section 65.220)) Such processing includes "cooking", "curing", "smoking", and "restructuring". (Panel Reports, fn 91 to para. 7.29 (referring to 2009 Final Rule (AMS), Section 65.220)) Any covered commodities that are "an ingredient in a proces sed food item" were also 
excluded from the scope of the original COOL measure.  (Panel Reports, para. 7. 29 (quoting COOL statute, 
Section 1638(2)(B)))  
309 "Food service establishments" are defined by the or iginal COOL measure as "a  restaurant, cafeteria, 
lunch room, food stand, saloon, tavern, bar, lounge, or ot her similar facility operated as an enterprise engaged 
in the business of selling food to the public." The 2009 Final Rule (AMS) further provided that "[s]imilar food 
service facilities include salad bars, delicatessens,  and other food enterprises located within retail 
establishments that provide ready-to-eat foods that ar e consumed either on or outside of the retailer's 
premises." (Panel Reports, para. 7.30 (quoting 2009 Final Rule (AMS), Section 65.140)) 
310 Panel Reports, para. 7.27 (referri ng to Original Panel Reports, US – COOL , paras. 7.101-7.108; and 
Appellate Body Reports, US – COOL , para. 334). 
311 Panel Reports, para. 7.27. 
312 Panel Reports, para. 7.28 (quoting 2009 Final Rule (AMS), Section 65.240, in turn referring to 
Perishable Agricultural Commodities Act of 1930, United States Code of Federal Regulations , Title 7, 
Section 499 (Panel Exhibits CDA-10 and MEX-7)). 
313 Panel Reports, para. 7.28 (referri ng to Original Panel Reports, US – COOL , para. 7.101).  
314 Panel Reports, para. 7.28 (quoting 2013 Final Rule, Section 65.240). (emphasis added by the Panel) 
315 Panel Reports, fn 89 to para. 7.28 (quoting 2013 Final Rule, p. 31368). 
316 Panel Reports, para. 7.11 (referring to COOL statute, Section 1638a(2)(A-E); and Original Panel 
Reports, US – COOL , para. 7.89). 
317 Panel Reports, para. 7.12 (referring to 2013 Final Rule, p. 31370). 
318 See Panel Reports, para. 7.14; Appellate Body Reports, US – COOL , para. 244; and Original Panel 
Reports, US – COOL , para. 7.92. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 c. Muscle cuts must be designated as having a country of origin other than the 
United States (Category D)  when the livestock from which the meat is derived have 
been slaughtered in that country prior to export – i.e. when imported as meat.  
d. For ground meat (Category E) , the label must list all countries of origin of the meat 
contained therein or that may reasonably be contained therein based on the 60-day 
"inventory allowance" rule.319 According to this rule, when a raw material from a specific 
origin has not been in a processor's inventory for more than 60 days, that country shall 
no longer be included as a country of origin on the label.320 
4.12.  The Panel found that the 2013 Final Rule am ends the definition of Category D muscle cuts. 
Under the original COOL measure, Category D ex tended to "[i]mported covered commodities for 
which origin has already been established as defined by this law (e.g., born, raised, and 
slaughtered or produced) and for which no production steps have occurred in the 
United States ".321 The amended COOL measure defines Category D meat as "[m]uscle cut covered 
commodities derived from an animal that was slaughtered in another country … including muscle 
cut covered commodities derived from an animal that was born and/or raised in the United States  
and slaughtered in another country."322  
4.5  Labelling requirements  
4.13.  For each of the above-mentioned catego ries of products, the original COOL measure 
provided for corresponding Labe ls A, B, C, D, and E.  
4.14.  The original COOL measure provided that muscle cuts in Category A could bear a 
declaration that identified the United States as the sole country of origin at retail. Label A could 
read "Product of the United States" or any vari ation permitted under the original COOL measure 
(e.g. "Product/Produce of the USA", using acceptab le country abbreviations "U.S." or "USA" for the 
"United States of America").323 The amended COOL measure provides that "[t]he United States 
country of origin designation for muscle cut covered commodities shall include all of the production 
steps (i.e. 'Born, Raised, and Slaughtered in the United States')."324 Accordingly, under the 
amended COOL measure, Label A may read "Born, Raised and Slaughtered in the United States", 
or any variation thereof permitted under the amended COOL measure.325 
4.15.  Under the original COOL measure, Category B meat could be labelled as a product of the 
United States and of the foreign country or countries in which the animal was born and raised. The countries of origin could be listed in any order. For example, a label on Category B meat could 
state "Product of the U.S. and Mexico" or "Product of Mexico and the U.S."
326 The amended COOL 
measure provides that, "[i]f an animal was born and/or raised in Country X and/or (as applicable) Country Y, and slaughtered in the United States, the resulting muscle cut covered commodities 
shall be labeled to specifically identify the production steps occurring in each country".
327 
Accordingly, under the amended COOL measure, Label B may read "Born and Raised in Country X, Raised and Slaughtered in the United States" or "Born and Raised in Country X, Raised in 
Country Y, Raised and Slaughtered in the United States". 
                                               
319 Panel Reports, para. 7.20 (referring to 2009 Final Rule (AMS), Section 65.300(h)). 
320 Panel Reports, para. 7.16 (referring to 2009 Final Rule (AMS), Section 65.300(h)). 
321 Panel Reports, para. 7.15 (quoting 2009 Final Rule (AMS), Section 65.300(f)). (emphasis added by 
the Panel) 
322 Panel Reports, para. 7.15 (quoting 2013 Final Rule, Section 65.300(f)(2)). (emphasis added by the 
Panel) 
323 Panel Reports, para. 7.17 and fn 62 thereto (quo ting 2009 Final Rule (AMS), Section 65.300(d)).  
324 Panel Reports, para. 7.21, Table 1 (quoting 2013 Final Rule, Section 65.300(d)). (emphasis added by 
the Panel)  
325 Panel Reports, paras. 7.23-7.24 (quoting 2013 Final Rule, p. 31369). See also supra , para. 4.5. Such 
variations are permitted for Labels A-E. 
326 See Panel Reports, para. 7.17. 
327 Panel Reports, para. 7.21, Table 1 (quoting 2013 Final Rule, Section 65.300(e)). (emphasis added by 
the Panel)  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 4.16.  In the case of Label C, under the original COOL measure, when an animal was imported into 
the United States for immediate slaughter, the origin of the resulting meat products derived from that animal had to be designated as "Pro duct of Country X and the United States".
328 Label C had 
to indicate all the origins of the animal, but could not list the United States first. Labels following 
this rule could read, e.g. "Product of Canada and the U.S." Because the countries of origin for meat 
of Category B could be listed in any order, the labels for Category B and C meat could look the same in practice – i.e. a label stating "Product of Canada and the United States" could be 
describing the origin of Category B meat from an animal born in Canada and raised and 
slaughtered in the United States, or it could be de scribing Category C meat derived from an animal 
imported from Canada for immediate slaughter.
329 Under the amended COOL measure, "[i]f an 
animal was born and/or raised in Country X and/or (as applicable) Country Y, and slaughtered in 
the United States, the resulting muscle cut covered commodities shall be labelled to specifically 
identify the production steps occurring in each country (e.g., 'Born and Raised in Country X, 
Slaughtered in the United States')."330 Accordingly, under the amended COOL measure, Label C 
may read "Born and raised in Country X,  Slaughtered in the United States". 
4.17.  Under the original COOL measure, Label D reflected the country of origin "as declared to 
U.S. Customs and Border Protection" based on the criterion of substantial transformation.331 The 
amended COOL measure maintains the requirement to indicate origin of meat "as declared to U.S. 
Customs and Border Protection at the time the product entered the United States" based on the criterion of substantial transformation.
332 In addition, the amended COOL measure provides a 
voluntary option for Label D to "include more specific location information related to production 
steps (i.e., born, raised, and slaughtered) prov ided records to substantiate the claims are 
maintained".333 Accordingly, under the amended COOL me asure, Label D may read "Product of 
Country X". 
4.18.  Finally, under the original COOL measure, Label E for ground meat products had to list all 
countries of origin of the meat contained therein or that could reasonably have been contained therein based on the 60-day "inventory allowance" mentioned above.
334 The amended COOL 
measure maintains this requirement.  
4.19.  In paragraph 7.21 of its Reports, the Panel summarized the origin definitions and gave 
examples of labels for each category of meat under the original and the amended COOL measures 
as set out in the table below. 
                                               
328 Panel Reports, para. 7.17 (referring to 2009 Final Rule (AMS), Section 65.300(e)(3)). The Panel 
further noted that the 2009 Final Rule (AMS) also stipulated  that the countries on Label B "may be listed in any 
order", as distinct from Label C, whic h did not have a similar flexibility. (Panel Reports, fn 64 to para. 7.17 
(quoting 2009 Final Rule (AMS), Section 65.300(e)(4) and p. 2659)) 
329 Panel Reports, para. 7.35 (quo ting Appellate Body Reports, US – COOL , para. 245; and Original 
Panel Reports, US – COOL , para. 7.288). 
330 Panel Reports, para. 7.21, Table 1 (quoting 2013 Final Rule, Section 65.300(e)). (emphasis added by 
the Panel) 
331 Panel Reports, paras. 7.17 and 7.21, Table 1 (quoting 2009 Final Rule (AMS), Section 65.300(f)).  
332 Panel Reports, paras. 7.19 and 7.21, Table 1 (quoting 2013 Final Rule, Section 65.300(f)(2)).  
333 Panel Reports, para. 7.19 (quoting 2013 Final Rule, Section 65.300(f)(2)). The Panel noted that the 
provision for voluntarily providing such information applied to Labels B and C under the original COOL 
measure. (Panel Reports, fn 70 to para. 7.19) 
334 Panel Reports, para. 7.17 (referring to 2009 Final Rule (AMS), Section 65.300(h)).  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Table 1: Definitions of origin and basic labels for muscle cuts   2009 Final Rule (AMS) 2013 Final Rule* LABEL A   
 
"United States country of  origin means … [f]rom 
animals exclusively born, raised, and slaughtered in the United States" (65.260(a)(1)) 
"A covered commodity may bear a declaration that 
identifies the United States as the sole country of origin at retail only if it meets the definition of United States country of origin as defined in § 65.260." (65.300(d) (emphasis added by Panel)) "The United States country of origin designation for 
muscle cut covered commodities shall include all of the 
production steps (i.e. 'Bor n, Raised, and Slaughtered 
in the United States')." (65.300(d) (emphasis added by Panel)) 
LABEL B  
  
   
 
 
 
"For muscle cut covered commodities derived from animals that were born in Country X or (as applicable) Country Y, raised and slaughtered in the United States, and were not derived from animals imported for immediate slaughter as defined in § 65.180, the origin may be designated as Product of 
the United States, Country X, and (as applicable) Country Y." (65.300(e)(1) (emphasis added by Panel)) "If an animal was born and/or raised in Country X 
and/or (as applicable) Country Y, and slaughtered in the United States, the resulting muscle cut covered commodities shall be labelled to specifically identify 
the production steps occurring in each country… . " (65.300(e) (emphasis added by Panel)) 
LABEL C   
 
"If an animal was imported into the United States for immediate slaughter as defined in § 65.180, the origin of the resulting meat prod ucts derived from that 
animal shall be designated as Product of Country X 
and the United States." (65.300(e)(3) (emphasis added by Panel)) "If an animal was born and/or raised in Country X 
and/or (as applicable) Country Y, and slaughtered in the United States, the resulting muscle cut covered commodities shall be labeled to specifically identify the 
production steps occurring in each country (e.g., 'Born and Raised in Country X, Slaughtered in the United States')." (65.300(e) (emphasis added by Panel)) 
LABEL D   
"Imported covered commodities for which origin has already been established as defined by this law (e.g., born, raised, and slaughtered or produced) and for which no production steps have occurred in the United States, shall retain their origin, as declared to 
U.S. Customs and Border Protection at the time the product entered the United States, through retail sale." (65.300(f) (emphasis added by Panel)) "Muscle cut covered commodities derived from an 
animal that was slaughtered in another country shall 
retain their origin, as declared to U.S. Customs and Border Protection at the time the product entered the United States, through retail sale (e.g., 'Product of Country X')" (65.300(f)(2) (emphasis added by Panel)) 
 
*The excerpts from the 2013 Final Rule in the right-hand column replace the corresponding provisions from the 2009 Final Rule (AMS) in the left-hand column, except fo r the excerpt in the top right-hand cell, which is 
additional to the excerpt in the top left-hand cell.  Notes to Table 1: Label A on the left  is taken from the 2009 Final Rule (AMS), p. 2668. See also Original 
Panel Reports, US – COOL , para. 7.100. Label A on the right  is taken from the 2013 Final Rule, § 65.300(d). 
The two Labels B on the left are taken from the 2009 Final Rule (AMS), § 65.300(e)(1) and p. 2661. The 
first Label B on the right  is taken from the 2013 Final Rule, p. 31368. The second Label B on the right  is 
taken from the 2013 Final Rule, § 65.300(e). Label C on the left  is taken from the 2009 Final Rule (AMS), 
§ 65.300(e)(3). Label C on the right is taken from the 2013 Final Rule, § 65.300(e) and pp. 31368-31369. 
Label D on the left  is taken from Original Panel Reports, US – COOL , para. 7.100. Label D on the right is 
taken from the 2013 Final Rule, § 65.300(f)(2).  Source: Panel Reports, para. 7.21, Table 1. Product of the U.S.  Born, Raised, and 
Slaughtered in the 
United States  
Product of the 
United States, 
Country X Product of the 
United States, 
Country X, and … 
Country Y Born and Raised in 
Country X, Raised 
and Slaughtered in 
the United States Born and Raised in 
Country X, Raised 
in Country Y, 
Raised and 
Slaughtered in the 
United States  
Product of Country X and 
the United States Born and Raised in Country X, 
Slaughtered in the United States 
Product of Country X Product of Country X WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 81 - 
 
 4.6  Flexibilities 
4.20.  The original COOL measure provided for flexibilities with respect to labelling of 
"commingled" meat, the order in which countries of origin were indicated on Label B, and labelling of muscle cuts from animals raised in the Unit ed States and another country. The amended COOL 
measure has removed the commingling and country order flexibilities, and changed the multiple 
countries of raising flexibility. 
4.21.  First, the original COOL measure included ce rtain flexibilities with respect to origin labelling 
of meat "commingled" on a single production day.
335 More specifically, the original COOL measure 
allowed that commingled Category A and B meat could be labelled as Category B meat, even though a particular piece of meat could have been derived from a Category A animal.
336 Further, 
when Category B and C meat was commingled on a single production day, the original COOL 
measure allowed that the resulting meat was labelled as Category B meat, even though a 
particular piece of meat could have been derived from a Category C animal.337 In both cases, the 
countries of origin for the commingled meat could be listed on the label in any order.338 The 
commingling flexibility has been removed by the 2013 Final Rule.339  
4.22.  Second, the original COOL measure contained flexibility with respect to the order in which 
countries of origin were indicated on Label B, which could be listed on the label in any order.340 For 
example, Label B for muscle cuts of mixed US and Canadian origin could read "Product of U.S., 
Canada" or "Product of Canada, U.S."341 Furthermore, because the country order flexibility could 
be applied cumulatively with the commingling flexibility, commingled Label A, B, and C meat could carry the same label.
342 The amended COOL measure has eliminated the country order 
flexibility.343 
4.23.  Finally, under the original COOL measure, for animals raised in the United States and 
another country, for the purpose of indicating origin on the label, the raising in the United States 
"[took] precedence" over the minimal raising in the country of birth.344 By contrast, under the 
amended COOL measure, a country of partia l raising may be "omitted" from the label.345 The Panel 
noted that the main difference between the two versions of this flexibility is that, under the 
original COOL measure, the US raising "[took] precedence" over the raising in the country of birth, 
                                               
335 "Commingled covered co mmodities" were de fined as "covered commodities (of the same type) 
presented for retail sale in a consumer package that have been prepared from raw material sources having 
different origins." (See Panel Reports, fn 101 to para. 7.33 (quoting 2009 Final Rule (AMS), Section 65.125)) 
336 See Panel Reports, fn 97 to para. 7.32 (referri ng to 2009 Final Rule (AMS), Section 65.300(e)(2); 
and Original Panel Reports, US – COOL , para. 7.96). The 2009 Final Rule (AMS), Section 65.300(e)(2), 
provided the following with regard to th e commingling of Categories A and B meat: 
For muscle cut covered commodities derived from animals born, raised, and slaughtered in the 
U.S. that are commingled during a producti on day with muscle cut covered commodities 
described in § 65.300(e)(1), the origin may be designated as Product of the United States, Country X, and (as applicable) Country Y. 
337 Panel Reports, fn 98 to para. 7.32 (referring to  2009 Final Rule (AMS), Section 65.300(e)(4); and 
Original Panel Reports, US – COOL , para. 7.96). The 2009 Final Rule (AMS), Section 65.300(e)(4), reads: 
For muscle cut covered commodities derived from animals that are born in Country X 
or Country Y, raised and slaughtered in the United States, that are commingled during a 
production day with muscle cut covered commodi ties that are derived from animals that are 
imported into the United States for immediate slaughter as defined in § 65.180, the origin may be designated as Product of the United Stat es, Country X, and (as applicable) Country Y. 
338 See Original Panel Reports, US – COOL , para. 7.97 (referring to 2009 Final Rule (AMS), 
Section 65.300(e)(4)). 
339 Panel Reports, para. 7.34 (quoting 2013 Final Rule, p. 31385). 
340 Panel Reports, para. 7.35 (quoting 2009 Final Rule (AMS), Section 65.300(e)(4) and pp. 2659, 2661, 
and 2662). 
341 Panel Reports, para. 7.35 (referring to 2009 Final Rule (AMS), p. 2661). 
342 Panel Reports, para. 7.36 (quo ting Appellate Body Reports, US – COOL , para. 246). 
343 Panel Reports, para. 7.37 (referring to 2013 Final Rule, Section 65.300(e)). 
344 Panel Reports, para. 7.40 (quoting 2009 Final Rule (AMS), p. 2659: "[I]f animals are raised in 
another country and the United States, provided the animals are not imported fo r immediate slaughter as 
defined in § 65.180, the raising that occurs in the United States takes precedence  over the minimal raising that 
occurred in the animal's country of birth."). (emphasis added)  
345 Panel Reports, para. 7.38 (quoting 2013 Final Rule, Section 65.300(e): "If an animal is raised in the 
United States as well as another country (or multiple co untries), the raising occurring  in the other country (or 
countries) may be omitted  from the origin designation."). (emphasis added) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 82 - 
 
 while, under the amended COOL measure, the other country or countries of raising may be 
"omitted" from the label.346 The Panel further explained that because, under the 2009 Final 
Rule (AMS), Label B did not need to show point-of-production information, a muscle cut from a US-slaughtered animal that was born in Canada, and raised in Canada and the United States, 
could have carried a "Product of United States, Canada" label. The US raising taking precedence 
over the Canadian raising had no practical implication for this label, because the label had to mention Canada in any event, given the place of birth.
347 The Panel explained that, by contrast, 
under the 2013 Final Rule, for meat derived from animals raised in the country of birth and the 
United States, Label B may read "Born in Country X, Raised and Slaughtered in the United States" in lieu of "Born and Raised in Country X, Raised and Slaughtered in the United States".
348  
5  ANALYSIS OF THE APPELLATE BODY 
5.1  Article 2.1 of the TBT Agreement 
5.1.1  Introduction 5.1.  The Panel concluded that the amended COOL measure is inconsistent with Article 2.1 of the 
TBT Agreement because it accords less favourable treatment to imported livestock than to like 
products of US origin.
349 This conclusion was based on two central findings made by the Panel, 
namely, that the amended COOL measure has incr eased the original COOL measure's detrimental 
impact on competitive opportunities for imported livestock, and that such detrimental impact does 
not stem exclusively from legitimate regulatory distinctions.350 
5.2.  On appeal, each participant challenges certain elements of the Panel's analysis and findings 
under Article 2.1 of the TBT Agreement. The United  States appeals the Panel's conclusion that the 
amended COOL measure is inconsistent with Article 2.1 because its detrimental impact on 
imported livestock does not stem exclusively from legitimate regulatory distinctions. The United States asserts that this conclusion rests on three intermediate findings made by the Panel 
that are in error, namely: (i) that the amended COOL measure entails an increased recordkeeping 
burden for producers and processors of livestock;  (ii) that Labels B and C convey potentially 
inaccurate information; and (iii) that the amended COOL measure continues to exempt a large 
proportion of muscle cuts from its scope.
351 
5.3.  Canada and Mexico do not appeal the Panel's conclusion that the amended COOL measure is 
inconsistent with Article 2.1. They do take issu e, however, with the Panel's assessment of certain 
elements of the amended COOL measure in reaching  its conclusion that the detrimental impact of 
that measure on imported livestock does not stem exclusively from legitimate regulatory 
distinctions. Canada claims that the Panel failed to assess appropriately the relevance of Labels D and E, as well as the amended COOL measure's prohibition of a trace-back system, for the 
analysis of whether the detrimental impact of that measure on imported livestock stems 
exclusively from legitimate  regulatory distinctions.
352 Mexico puts forward a similar claim, but 
limits its appeal to the Panel's assessment of the relevance of Label E for the purposes of its 
analysis under Article 2.1.353 
5.4.  We begin our review of the participants' appeals under Article 2.1 by considering the claims 
of the United States. Thereafter, we address those of Canada and Mexico. 
                                               
346 Panel Reports, para. 7.42 (quoting 2013 Final Rule, Section 65.300(e)). 
347 Panel Reports, fn 127 to para. 7.42 (quoting 2013 Final Rule, p. 31368: "the country of birth is 
already required to be listed in the origin designation"). 
348 Panel Reports, paras. 7.41-7.42 (referring to 2013 Final Rule, p. 31368: "if animals are born and 
raised in another country and subsequent ly further raised in the United Stat es, only the raising that occurs in 
the United States needs to be declared on the label, as it is understood that an anim al born in another country 
will have been raised at least a portion of its life in th at other country. Because the country of birth is already 
required to be listed in the origin designation, and to reduce the number of  required characters on the label, 
the Agency is not requiring the country of birth to be listed again as a country in which the animal was also 
raised."). 
349 Panel Reports, para. 7.284. 
350 Panel Reports, paras. 7.176 and 7.283. 
351 United States' appellant' s submission, paras. 53-54. 
352 Canada's other appellant's submission, para. 156. 
353 Mexico's other appellant's submission, para. 185. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.1.2  Claims of the United States und er Article 2.1 of the TBT Agreement  
5.1.2.1  Claims relating to the Panel's anal ysis of the recordkeeping burden entailed by 
the amended COOL measure 
5.5.  The United States claims that the Panel's finding that the amended COOL measure entails an 
increased recordkeeping burden does not support  the Panel's conclusion that the detrimental 
impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions. This claim rests on two main grounds. First, the United States argues that the Panel 
erred in relying on its finding that the amended COOL measure entails an increased recordkeeping 
burden as an independent basis for concluding that the detrimental impact of that measure does not stem exclusively from legitimate regulatory distinctions. Second, the United States argues that the Panel's finding that the amended COOL measur e entails an increased recordkeeping burden is 
flawed to the extent that it is based on incorrect analyses of the impact of point-of-production 
labelling and the elimination of the country order flexibility on the recordkeeping burden for producers along the livestock and meat production chain.
354  
5.6.  We begin our analysis with the United States' contention that the Panel erred in its analyses 
of the impact of point-of-production labelling and the elimination of the country order flexibility on recordkeeping. We then address the United States' claim that the Panel erred in relying on its 
finding that the amended COOL measure entails  an increased recordkeeping burden as an 
independent basis for concluding that the detrim ental impact of that measure does not stem 
exclusively from legitimate regulatory distinctions.  
5.1.2.1.1  Whether the Panel erred in its anal ysis of the impact of point-of-production 
labelling on recordkeeping 
5.7.  The United States claims that the Panel erred by basing its analysis of the impact of point-of-
production labelling on recordkeeping on incorrect hypothetical transactions, without regard for 
actual trade in livestock among the three parties to these disputes.
355 In addressing this claim, we 
begin by recalling salient aspects of the Panel's analysis and findings concerning the introduction of point-of-production labelling by the amende d COOL measure, and the implications for 
recordkeeping along the livestock and meat production chain.  
5.8.  We recall that, in its analysis under Articl e 2.1 of the TBT Agreement, the Panel considered 
whether the amended COOL measure has increased the original COOL measure's detrimental impact on competitive opportunities for imported livestock.
356 In undertaking this assessment, the 
Panel considered, inter alia , whether compliance with the amended COOL measure involves 
segregation of livestock and meat derived therefrom and, consequently, differential costs for imported livestock.
357 Noting that the original panel had found that, "for all practical purposes, the 
[original] COOL measure necessitates segregation of meat and livestock according to origin"358 in 
order to comply with the requirement of an unbroken chain of origin information, the compliance 
                                               
354 United States' appellan t's submission, para. 91. 
355 United States' appellan t's submission, para. 91. 
356 Before the Panel, the United States conceded that the amended COOL measure was not intended to 
"remove [the original COOL measure's] detrimenta l impact on imports". (P anel Reports, para. 7.63 
(fn omitted)) As the Panel noted, the United States explained in response to a question from the Panel that, "to comply with the DSB recommendations and rulings, the United States could either remove the detrimental 
impact on imports or ensure that any detrimental impact stems exclusively from a legitimate regulatory 
distinction. The 2013 Final Rule implements the second  option – it addresses the DSB recommendations and 
rulings by ensuring that any detrimental impact stems exclusively from a legitimate regulatory distinction." (Panel Reports, fn 172 to para. 7.63 (quoting United States' response to Panel question No. 18 (emphasis original)) At the same time, the United States disputed  the claim of the complainants that the amended COOL 
measure has increased the detrimental impact on import ed livestock compared with the detrimental impact 
entailed by the original COOL meas ure. (Panel Reports, para. 7.63) 
357 The Panel considered three issues in its analysis of whether the amended COOL measure has 
increased the detrimental impact of the original COOL me asure on imported livestock:  (i) whether the different 
categories of muscle cut labels under the amended COOL measure accord different treatment to imported livestock; (ii) whether the amended COOL measure involv es segregation and, consequently, differential costs 
for imported livestock; and (iii) whether, through th e compliance costs involved, the amended COOL measure 
creates any incentive to process domestic livestock, th us reducing the competitive opportunities for imported 
livestock. (Panel Reports, para. 7.66) 
358 Panel Reports, para. 7.83 (quo ting Original Panel Reports, US – COOL , para. 7.327).  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Panel considered that "[t]he same conclusion co ntinues to apply to the amended COOL measure, 
which has the same features that led the original panel to reach its conclusion regarding segregation."
359 Thus, the Panel concluded that, "for all practical purposes, the amended COOL 
measure necessitates segregation of meat and livestock according to origin."360  
5.9.  Noting that the parties disputed whether the amended COOL measure involves more 
segregation than the original COOL measure, the Panel assessed, in turn, the impact of three "potentially relevant changes" introduced by the amended COOL measure: (i) the introduction of a 
mandatory point-of-production labelling requirement for Category A, Category B, and Category C 
muscle cuts; (ii) the removal of the commingling and country order flexibilities that existed under the original COOL measure; and (iii) the amended coverage of Label D.
361 As regards point-of-
production labelling, the Panel considered whether, in practice, point-of-production labelling 
increases the number of distinct labels for Category A, Category B, and Category C muscle cuts, 
noting that the original panel had found that more origins and labels means more segregation.362 
The Panel concluded that point-of-production labelling, in and of itself, increases the number of 
labels and, accordingly, results in more segregation for: (i) Category B muscle cuts of different 
foreign origins363; (ii) Category B muscle cuts of different, multiple foreign origins364; and 
(iii) Category C muscle cuts derived from animals born in a foreign country, raised in that country 
and another foreign country, and imported into the United States for immediate slaughter.365 By 
contrast, the Panel concluded that point-of-produ ction labelling, as prescribed by the amended 
COOL measure, does not directly increase or decrease segregation for other Category B and C muscle cut scenarios, and for Category A muscle cuts in general.
366  
5.10.  On appeal, the United States submits that the Panel's finding that the amended COOL 
measure entails an increased recordkeeping burden  is in error to the extent that the Panel's 
analysis of the impact of point-of-production labelling was based on incorrect hypothetical 
scenarios that do not reflect actual trade in livestock among the three parties to these disputes.  
5.11.  Noting that the Panel found that point-of-production labelling for "single foreign origin" 
scenarios would lead to neither more labels, nor an increased record-keeping burden, the 
United States asserts that it is "those very scenarios" that constitute the virtual entirety of the 
livestock market in the United States.367 In this regard, the United States asserts that the market 
for livestock in the United States consists of: Category A animals (i.e. animals born, raised, and slaughtered in the United States); "single foreign origin" Category B animals from either Canada or 
Mexico (i.e. animals born in either Canada or Mexico, and raised and slaughtered in the 
United States); and "single foreign origin" Category C animals from Canada (i.e. animals born and raised in Canada, and exported for immediate slaughter in the United States).
368 Thus, contrary to 
the scenarios posited by the Panel, there is no ev idence of trade in live animals between Canada 
                                               
359 Panel Reports, para. 7.84. While the amended COOL measure does not explicitly require the 
segregation of livestock according to origin, it prescribes, like the original COOL measure, "an unbroken chain of reliable country of origin information with regard  to every animal and musc le cut". (Panel Reports, 
para. 7.81 (quoting Original Panel Reports, US – COOL , para. 7.317)) 
360 Panel Reports, para. 7.86. 
361 Panel Reports, para. 7.88. 
362 Panel Reports, para. 7.90 (referri ng to Original Panel Reports, US – COOL , para. 7.331).  
363 The Panel explained that, "[u]nder this scenario (Scenario B2), the Category B muscle cuts in 
question originate from both (i) livestock born in Countr y X, and raised and slaughtered in the United States, 
as well as (ii) livestock born in Country Y, and raised  and slaughtered in the United States. This scenario 
therefore represents a combination of livestock from two different fore ign countries of origin, which fall within 
Category B." (Panel Reports, para. 7.97 (referring to 2009 Final Rule (AMS), Section 65.300(e)(1)) (emphasis original)) 
364 The Panel identified this situation as consisting of "Category B muscle cuts from livestock (i) born in 
two different foreign countries; (ii) raised in the sa me two foreign countries and the United States; and 
(iii) slaughtered in the United States." (Panel Report s, para. 7.102 (emphasis original)) The Panel explained 
further that the same would apply to  "muscle cuts from US-born and -slaughtered animals raised in both the 
United States and a foreign country". (Panel Reports, fn 269 to para. 7.102) 
365 Panel Reports, para. 7.111. The Panel found that point-of-production labelling increases segregation 
in this scenario if the 2013 Final Rule is read as requiring that only the country of immediate import is shown as the country of raising on Label C. (Ibid.) 
366 In other words, point-of-production labelling und er the amended COOL measure does not directly 
increase or decrease segregation for these types of musc le cuts and the originating livestock. (Panel Reports, 
para. 7.113) 
367 United States' appellant's submission, para. 118 (referring to Panel Reports, paras. 7.96-7.98). 
368 United States' appellant's submission, para. 118. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 and Mexico that would result in the "multiple origin" Label B and Label C scenarios on which the 
Panel based its findings.369 The lack of such evidence, contends  the United States, is explained by 
the fact that it is highly improbable, if not in conceivable, that the prices for energy, feed, and 
livestock would ever align such that it would be profitable to export animals between Canada and 
Mexico even once, much less twice, before exporting to the United States, as the Panel's 
hypothetical scenarios envision.370 The United States emphasizes that the scenarios that reflect 
actual livestock trade between the parties prove that  point-of-production labels do not increase the 
recordkeeping burden that was entailed by the original COOL measure.371 Noting that, in Canada – 
Periodicals , the Appellate Body reversed the panel's "like" product analysis in the light of the 
panel's reliance on an incorrect hypothetical, the United States submits that the Panel's analysis in the current disputes is similarly flawed.
372 
5.12.  Canada responds that the United States cr iticizes the Panel for elaborating on the labelling 
rules that would apply in scenarios that the United States has itself articulated and codified in its domestic law.
373 In this regard, Canada points out that the Panel expressly noted that the 2009 
Final Rule (AMS), itself, addressed scenarios invo lving non-commingled Category B muscle cuts of 
multiple foreign origins, and the 2013 Final Rule also provides explicit guidance as to the point-of-production labelling requirements that apply to livestock born and/or raised in multiple foreign 
countries. Canada further contends that, contrary to the assertions of the United States, the 
Panel's conclusion that the amended COOL measure entails an increased recordkeeping burden was based on much more than purely hypothetical livestock transactions. Canada highlights, in this connection, that the Panel concluded that point-of-production labelling, together with the 
elimination of the commingling and country order flexibilities, increased the need for segregation 
in the US market – a point confirmed by exte nsive evidence that was put before the Panel.
374 
Moreover, the Panel examined the impact of th e amended COOL measure on recordkeeping, and 
emphasized that the greater diversity of labels resulting from the elimination of the commingling 
and country order flexibilities creates a multiplicity of scenarios for which distinct and commensurate substantiating records are now required . Noting that the Appellate Body was critical 
of the panel in Canada – Periodicals  for basing its "like" product analysis on a single hypothetical 
example, Canada submits that the Panel in the present disputes cannot be similarly faulted and, as such, the United States' reliance on Canada – Periodicals  is inapt.
375  
5.13.  For its part, Mexico responds that, although the United States seeks to create the 
impression that none of the scenarios examined by the Panel are in any way realistic, the 
United States overlooks that the Panel included in its discussion scenarios in which muscle cuts from different animals – some born in Mexico, some born in Canada, and both slaughtered in the 
United States – would be packaged together. Mexico asserts that the Panel correctly concluded 
that, under the original COOL measure, those muscle cuts could be packaged with a single label, while, under the amended COOL measure, they may not. Mexico highlights that the United States 
has not explained why this scenario is unrealistic. In addition, Mexico, like Canada, highlights that 
the United States faults the Panel for elaborating on the labelling rules that would apply in scenarios that the United States has itself articulated and codified in its domestic law.
376 
5.14.  Turning to our analysis, we consider that the United States' claim raises two issues: First, 
whether, and to what extent, a panel may rely on hypothetical scenarios that are not reflective of 
actual patterns of trade for the purpose of determining whether a technical regulation accords less favourable treatment to imported products than to like domestic products in violation of Article 2.1 
of the TBT Agreement. Second, we must consider whether the United States is correct in asserting 
that the Panel based its finding on the impact of point-of-production labelling on "incorrect 
hypothetical" scenarios involving trade in live animals between Canada and Mexico.
377  
                                               
369 United States' appellant's submission, para. 119. 
370 United States' appellant's submission, para. 121. 
371 United States' appellant's submission, para. 122. 
372 United States' appellant's submission, para. 123 (referring to Appellate Body Report, Canada – 
Periodicals , pp. 20-23, DSR 1997:I, pp. 465-468). 
373 Canada's appellee's submission, para. 52. 
374 Canada's appellee's submission, para. 53 (referring to Panel Reports, para. 7.135, and to exhibits 
submitted by Canada and Mexico li sted in fns 324 and 325 thereto). 
375 Canada's appellee's su bmission, paras. 53-55. 
376 Mexico's appellee's submission, para. 35. 
377 United States' appellant's submission, paras. 19, 117, and 119. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.15.  As regards the first issue, we recall that, in US – Clove Cigarettes , the Appellate Body 
considered that the context and object and purp ose of the TBT Agreement weigh in favour of 
reading the "treatment no less favourable" requirement of Article 2.1 as prohibiting both de jure  
and de facto  discrimination against imported products while, at the same time, permitting a 
detrimental impact on competitive opportunities for like imported products that stems exclusively 
from legitimate regulatory distinctions.378 Because Article 2.1 is concerned with competitive 
opportunities  for like imported products, we consider that the analysis under that provision is not 
limited to an examination of the operation of the technical regulation at issue within the confines 
of scenarios that are representative of current patterns of trade.  
5.16.  At the same time, we are not suggesting that a panel may ascribe undue weight  to the 
effect of a technical regulation in any hypothetical scenario for the purposes of its analysis under 
Article 2.1. In this connection, we emphasize that Article 2.1 proscribes a detrimental impact on 
competitive opportunities  for like imported products that does not stem exclusively from legitimate 
regulatory distinctions. Thus, a panel's analysis  under Article 2.1 must be grounded in an 
assessment of the technical regulation at issue in scenarios under which competitive opportunities 
may arise, notwithstanding that they may not be cu rrently reflective of actual patterns of trade.  
5.17.  Turning to the second issue, we do not agree with the United States that the Panel's 
assessment of the impact of point-of-production labelling was based  on "incorrect hypothetical" 
scenarios involving the trade of live animals between Canada and Mexico.379 As Mexico correctly 
points out, the Panel included in its analysis scenarios in which muscle cuts from different animals – some born in Mexico, some born in Canada, and both slaughtered in the United States – would 
be packaged together.
380 This scenario does not involve the trade of live animals between Canada 
and Mexico. The Panel found that, under the original COOL measure, such muscle cuts could be packaged with a single label, while, under the amended COOL measure, they would need to carry 
distinct labels to reflect their different countries of origin.
381 The United States has not explained 
why this scenario is inconceivable or constitutes an "incorrect" hypothetical scenario. Instead, the United States asserts that the extent to which processors have "actually taken advantage of this 
particular type of commingling appears to be small ", as processors typically purchase livestock 
born in either Canada or Mexico, not both.
382 For the reasons stated above, however, we do not 
consider that the Panel erred under Article 2.1 by assessing the impact of point-of-production 
labelling in scenarios that are not representative of actual, or the most common, situations in 
which the products at issue are traded among the parties to these disputes.  
5.18.  In the light of the foregoing considerations, we disagree with the United States that the 
Panel based its analysis of the impact of point-of-production labelling, as prescribed by the 
amended COOL measure, on incorrect hypothetical scenarios. Accordingly, we find that the Panel 
did not err, in paragraphs 7.87-7.113 of the Panel Reports, in its analysis of the impact of point-of-
production labelling on recordkeeping.  
5.1.2.1.2  Whether the Panel erred in its analys is of the impact of the elimination of the 
country order flexibility on recordkeeping 
5.19.  We turn now to the United States' claim that the Panel erred in finding that the elimination 
of the country order flexibility increases the reco rdkeeping burden entailed by the original COOL 
measure.383  
5.20.  We begin by recalling that, under the orig inal COOL measure, the country order flexibility 
applied to Category B muscle cuts and permitted the countries of origin to be listed in any order on 
Label B such that muscle cuts of, for example, "mixed US-Canadian origin" could be labelled as 
                                               
378 Appellate Body Report, US – Clove Cigarettes , para. 175.  
379 United States' appellant's submission, para. 119. 
380 In this regard, we recall the Pa nel's explanation that, "[u]nder this scenario, the Category B muscle 
cuts in question originate from both  (i) livestock born in Country X, and raised and slaughtered in the 
United States, as well as (ii) livestock  born in Country Y, and raised and sl aughtered in the United States. This 
scenario therefore represents a combination of livestock  from two different foreign countries of origin, which 
fall within Category B." (Panel Reports, para. 7.97 (referring to 2009 Final Rule (AMS), Section 65.300(e)(1)) 
(emphasis original)) 
381 Panel Reports, paras. 7.97-7.99. 
382 United States' appellant's submission, para. 98. (fn omitted;  emphasis added) 
383 United States' appellan t's submission, para. 91. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 "Product of U.S., Canada" or "Product of Canada, U.S."384 Further, the labelling requirements 
under the original COOL measure for Category C muscle cuts mandated that Label C had to indicate all the origins of the animal from which such muscle cuts were derived, but could not list the United States first. As the Panel acknowledged, the Appellate Body noted in the original 
proceedings that, "[b]ecause the countries of origin for Category B meat [c]ould be listed in any 
order [under the original COOL measure], the labels for Category B and C meat could look the same in practice."
385 The amended COOL measure has eliminated the country order flexibility that 
had been available under the original COOL measure.386 
5.21.  As part of its analysis of whether the amended COOL measure, as compared to the original 
COOL measure, involves more segregation of livestock and resulting muscle cuts of meat, the 
Panel assessed, in conjunction, the impact of the removal of the commingling and country order 
flexibilities. The Panel recalled that, in the orig inal proceedings, the commingling flexibility was 
found to have only partially mitigated the segregation necessitated by the original COOL measure
387 and, in the Panel's view, the country order flexibility had a similar effect.388 The Panel 
concluded that the effect of eliminating these flexibilities – that had partially mitigated the need for 
segregation under the original COOL measure – is increased segregation for US-slaughtered livestock and muscle cuts of meat derived therefrom.
389  
5.22.  The United States does not dispute that th e removal of the commingling flexibility increases 
the need for segregation in respect of those operators that had made use of this flexibility. However, the United States disputes that the remo val of the country order flexibility has a similar 
effect. In particular, the United States submits that, although the removal of the country order 
flexibility increases the distinct number of labels for non-commingled muscle cuts, it does not 
increase the recordkeeping burden that had been  entailed by the original COOL measure.  
5.23.  The United States explains that, under the original COOL measure, the country order 
flexibility allowed non-commingled Category B and Category C muscle cuts to have labels that 
could look the same in practice – i.e. Label B and Label C could both read "Product of Canada, U.S." By contrast, those same muscle cuts are labelled differently under the amended COOL 
measure – i.e. Category B muscle cuts are labelled "Born in Canada, Raised and Slaughtered in the 
U.S.", while Category C muscle cuts are now labelled "Born and Raised in Canada, Slaughtered in the U.S." The United States asserts, however, that the fact that there are now two labels – where before there was one – does not mean that the recordkeeping burden has increased under the 
amended COOL measure. According to the United St ates, this is because the records required for 
substantiating an origin claim under the original COOL measure in respect of Category B muscle cuts must have been able to demonstrate that they were produced from an animal that was born 
in Canada, and raised and slaughtered in the United States. Similarly, the records required for 
substantiating an origin claim under the original COOL measure in respect of Category C muscle cuts must have been able to demonstrate that they were produced from an animal that was born 
in Canada, raised in Canada, and exported to the United States for immediate slaughter. Thus, the 
United States asserts that, although the removal of the country order flexibility creates more distinct labels for non-commingled muscle cuts, "it does not alter the recordkeeping burden" that existed under the original COOL measure, because "different categories of muscle cuts already had 
different records" under that measure.
390  
                                               
384 Panel Reports, para. 7.35 (referring to 2009 Final Rule (AMS), p. 2661). 
385 Panel Reports, para. 7.35 (quo ting Appellate Body Reports, US – COOL , para. 245). 
386 Panel Reports, para. 7.37. 
387 Panel Reports, para. 7.114 (referring to Original Panel Reports, US – COOL , para. 7.327; and 
Appellate Body Reports, US – COOL , para. 310). 
388 Panel Reports, para. 7.114 and fn 284 thereto. The Panel based this view on the following statement 
contained in the Appellate Body repo rts in the original proceedings:  
Meat derived from animals born outside the United States but raised and slaughtered in the 
United States (Category B meat) must be labelled as a product of the United States and the foreign country in which the animal was born, and the countries of origin may be listed in any order. For meat derived from animals imported in to the United States for immediate slaughter 
(Category C meat), labels must indicate all of the countries of origin of the animal, but cannot list the United States first. Because the countries of origin for Category B meat can be listed in any 
order, the labels for Categories B and C meat could look the same in practice. 
(Appellate Body Reports, US – COOL , para. 245 (fns omitted)) 
389 Panel Reports, para. 7.127. 
390 United States' appellant's submission, para. 126. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.24.  Canada disagrees with the United States' assertion that the removal of the country order 
flexibility creates more distinct labels, but does  not increase the recordkeeping burden that was 
entailed by the original COOL measure. Canada ex plains that, under the original COOL measure, 
where non-commingled Category B muscle cuts from Canada bore Label C as a result of the 
country order flexibility, the origin claim to be substantiated was "Product of Canada and the 
United States". Canada asserts that, because the livestock used to produce these muscle cuts did not satisfy the definition of Category C meat, audited retailers could not demonstrate that such 
muscle cuts derived from livestock imported from Canada for immediate slaughter. Nor could 
audited retailers be expected to demonstrate that such muscle cuts were, in fact, Category B muscle cuts – i.e. that they were derived from livestock raised in the United States. Thus, Canada contends that all that was required to verify the origin claim – "Product of Canada and the 
United States" – was proof that the animal fr om which the muscle cut was derived was born 
outside of the United States, in the country that appeared on the label.
391  
5.25.  For its part, Mexico observes that the Panel found that the greater diversity of labels 
resulting from the elimination of both the commingling and country order flexibilities "creates a 
multiplicity of scenarios for which distinct and commensurate substantiating records are now required"
392, and that "the increase in the number of distinct labels and in segregation logically 
entails a higher recordkeeping burden."393 In Mexico's view, these findings reveal the inaccuracy of 
the United States' claim that the removal of the country order flexibility does not contribute to the increased recordkeeping burden entailed by the amended COOL measure.  
5.26.  Turning to our analysis, it seems to us that the United States' claim is premised on its 
assertion that, although removing the country order flexibility creates more distinct labels, "it does 
not alter the recordkeeping burden" that was entailed by the original COOL measure.
394 
5.27.  We recall that, in comparing the recordkeeping burdens entailed by the original and 
amended COOL measures, the Panel found that, under both measures, the recordkeeping 
obligations of operators along the livestock and meat production chain are explicitly tied to the "information needed to correctly label the covered commodities".
395 The Panel further explained 
how the introduction of mandatory point-of-production labelling under the amended COOL 
measure for muscle cuts deriving from US-slaught ered livestock affects the recordkeeping burden 
that had been entailed by the original COOL measure. In this regard, the Panel noted that, under the original COOL measure, an "origin claim" could consist of a muscle cut being a "product of" the 
country(ies) of origin involved, and that the original COOL measure stipulated that "the origin 
declaration [for Category B, Category C, and all commingled muscles cuts] may include more specific information related to production steps provided records to substantiate the claims are 
maintained ".
396 Noting that the amended COOL measure now mandates  such specific production 
step information on Labels A, B, and C, the Panel considered that this entails a corresponding augmentation of the records kept by livestock and meat producers to substantiate the origin 
claims made on these labels.
397 
5.28.  To us, this finding of the Panel on the implications of the introduction of mandatory point-of-
production labelling for recordkeeping calls into question the United States' assertion that the removal of the country order flexibility creates more distinct labels, but does not increase the 
recordkeeping burden that was entailed by the original COOL measure. This assertion is 
necessarily premised on the proposition that the original COOL measure required  that records be 
maintained to substantiate specific production step information concerning the livestock from 
which muscle cuts derived. Yet, as the Panel explained, the original COOL measure stipulated that 
"the origin declaration [for Category B, Category C, and all commingled muscles cuts] may include 
                                               
391 Canada's appellee's submission, para. 43. 
392 Mexico's appellee's submission, para. 40 (quoting Panel Reports, para. 7.147). 
393 Mexico's appellee's submission, para. 40 (quoting Panel Reports, para. 7.149). 
394 United States' appellant's submission, para. 126. 
395 Panel Reports, para. 7.144 and fn 344 thereto (referring to 2009 Final Rule (AMS), p. 2693). 
396 Panel Reports, para. 7.146 (quoting 2009 Final Rule (AMS), Section 65.500(e)(4) and p. 2662). 
(emphasis added by the Panel) 
397 Panel Reports, para. 7.146.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 more specific information related to production steps provided records to substantiate the claims 
are maintained ."398  
5.29.  Thus, it seems to us that, because, under the original COOL measure, the provision of 
specific information on production steps could voluntarily be provided only if "records to 
substantiate the claims are maintained"399, origin claims for non-commingled Category B and 
Category C muscle cuts carrying the same label as a result of the country order flexibility – e.g. "Product of Canada, U.S." – could be su bstantiated by records demonstrating that the 
livestock from which these muscle cuts derived were born outside the United States, in the country 
appearing on the label.
400 By contrast, the provision of production step information for such muscle 
cuts is now mandatory under the amended COOL me asure. This, in turn, entails the augmentation 
of the records kept by livestock and meat producer s to substantiate the origin claims made on the 
mandatory retail labels for muscle cuts deriving from US-slaughtered livestock, including 
non-commingled Category B and Category C muscle cuts.401 
5.30.  For the reasons expressed above, we are no t persuaded by the United States that removing 
the country order flexibility has not altered the recordkeeping burden that was entailed by the 
original COOL measure.402 Accordingly, we find that the Panel did not err, in paragraphs 7.114-
7.127 of the Panel Reports, in its analysis of th e impact of the elimination of the country order 
flexibility on recordkeeping. 
5.1.2.1.3  Whether the Panel erred in rely ing on its finding that the amended COOL 
measure entails an increased recordkeeping burden as an independent basis for its conclusion under Article 2.1 of the TBT Agreement 
5.31.  We turn now to the United States' claim that the Panel erred in relying on its finding that 
the amended COOL measure entails an increased recordkeeping burden as an independent basis 
for concluding that the detrimental impact of th at measure on imported livestock does not stem 
exclusively from legitimate regulatory distinctions.
403  
5.32.  According to the United States, the Panel "f ailed to put the issue of recordkeeping within the 
proper analysis, which involves a comparison of the burdens of recordkeeping and the provision of 
information through labels."404 The United States submits that, to the extent that the 
recordkeeping burden entailed by the amended COOL measure is at all relevant for the analysis of 
whether the detrimental impact of that measure stems exclusively from legitimate regulatory 
distinctions, it is relevant only for the question of whether there is a "disconnect" between, on the 
one hand, the amount of origin information collected along the livestock and meat production 
chain and, on the other hand, the amount of origin information provided to consumers through the mandatory labels. The United States further asserts that, in order to conclude that the detrimental 
impact of the amended COOL measure does not stem exclusively from legitimate regulatory 
distinctions, the origin information collected must be so disproportionate to the information provided to consumers on labels that the collecti on of the information cannot be explained in the 
first place.
405 The United States submits, however, that the Panel failed to undertake this inquiry 
and, therefore, the Panel erred in relying on any increase in the recordkeeping burden entailed by 
the amended COOL measure as a basis for its ultimate conclusion under Article 2.1 of the TBT Agreement.
406 
5.33.  Canada responds that the United States is seeking to create the erroneous impression that 
the Panel found that the increased recordkeeping burden entailed by the amended COOL measure, 
ipso facto , demonstrates that the detrimental impact of that measure does not stem exclusively 
from legitimate regulatory distinctions.407 Canada observes that, at the outset of its analysis, the 
                                               
398 Panel Reports, para. 7.146 (quoting 2009 Final Rule (AMS), Section 65.500(e)(4) and p. 2662). 
(italics added by the Pa nel; underlining added) 
399 Panel Reports, para. 7.146 (quoting 2009 Final Rule (AMS), Section 65.500(e)(4) and p. 2662). 
400 See also Canada's appell ee's submission, para. 43. 
401 Panel Reports, para. 7.146.  
402 United States' appellant's submission, para. 126.  
403 United States' appellant' s submission, para. 91.  
404 United States' appellant's submission, para. 113. 
405 United States' appellant's submission, para. 115. 
406 United States' appellant's submission, para. 116. 
407 Canada's appellee's submission, para. 47. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Panel stated that it would address the informat ion that must be collected by producers and 
processors of livestock before addressing the information ultimately conveyed to consumers.408 
According to Canada, the Panel followed this analytical framework. In this regard, the Panel first recalled its finding that the amended COOL measure has augmented the information that 
producers and processors of livestock are required to transmit and maintain. The Panel then 
observed that the amended COOL measure retains essentially the same exemptions as under the 
original COOL measure, and noted features of the amended COOL measure that impact on the 
accuracy of the information conveyed to consumer s on the labels affixed to muscle cuts of meat. 
Canada asserts that these factors – the upstream recordkeeping burden, label accuracy, and the exemptions from coverage of the COOL requirements – were then collectively assessed by the Panel with a view to determining whether the informational "disconnect" identified by the 
Appellate Body in the original disputes had been rectified by the amended COOL measure.
409  
5.34.  Mexico contends that, contrary to the United States' assertions, the Panel's analysis 
involved a comparison of the recordkeeping burd en entailed by the amended COOL measure with 
the provision of information on the labels prescribed by that measure. In this regard, Mexico points 
out that the Panel determined that the amende d COOL measure is designed and applied in a 
manner that: (i) increases the origin information communicated to consumers on the mandatory 
retail labels for muscle cuts of meat; (ii) necessarily increases the recordkeeping burden on 
upstream producers and processors of livestock in order to do so; and (iii) maintains the same proportion of information that is not communicated at all to consumers as a result of the exemptions from coverage of the COOL requirements.
410 Accordingly, Mexico submits that the 
United States' claim is without merit. 
5.35.  Turning to our analysis, we consider it usef ul first to recall the analytical framework that the 
Appellate Body applied in the original disputes for the purpose of assessing whether the 
detrimental impact of the original COOL measure on imported livestock stemmed exclusively from 
legitimate regulatory distinctions. In conducting that assessment, the Appellate Body recalled the original COOL measure's recordkeeping and verification requirements, and the detailed origin 
information required to be identified, tracked, and transmitted by upstream producers of 
livestock.
411 The Appellate Body then compared this with the information communicated to 
consumers on the retail labels. In undertaking this  comparison, the Appellate Body observed that, 
under the original COOL measure, a large amount of information was tracked and transmitted by 
upstream producers of livestock for the purpose of providing consumer information on origin, but 
only a small amount of this information was communicated to consumers in an understandable manner, if it was communicated at all.
412 The Appellate Body explained that this was because the 
labels prescribed by the original COOL measure di d not expressly identify specific production steps 
and, in particular for Label B and C, contained confusing or inaccurate origin information, or because the meat or meat products were exempt from the labelling requirements altogether.
413 
5.36.  Accordingly, the Appellate Body considered that the recordkeeping and verification 
requirements under the original COOL measure imposed a disproportionate burden on upstream producers and processors because the level of information conveyed to consumers through the prescribed labels was far less detailed and accurate than the information required to be tracked 
and transmitted by upstream producers and proces sors. The Appellate Body, therefore, considered 
that the recordkeeping and verification requirements imposed on these producers and processors could not be explained by the need to convey to consumers information regarding the countries 
where livestock were born, raised, and slaughtere d. Consequently, the Appellate Body considered 
that the detrimental impact caused by these sa me recordkeeping and verification requirements 
under the original COOL measure could also not be explained by the need to provide origin 
information to consumers. Based on these findings, the Appellate Body considered that the 
regulatory distinctions imposed by the original COOL measured amounted to arbitrary and unjustifiable discrimination against imported livestock, such that they could not be said to be applied in an even-handed manner. Accordingly, the Appellate Body concluded that the 
                                               
408 Canada's appellee's submission, para. 48 (referring to Panel Reports, paras. 7.218-7.219). 
409 Canada's appellee's submission, para. 49. 
410 Mexico's appellee's submission, para. 29. 
411 Appellate Body Reports, US – COOL , para. 342. 
412 Appellate Body Reports, US – COOL , para. 347. 
413 Appellate Body Reports, US – COOL , para. 349. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 detrimental impact on imported livestock did not stem exclusively from a legitimate regulatory 
distinction but, instead, reflected discrimination in violation of Article 2.1 of the TBT Agreement.414  
5.37.  In the current proceedings, the participants do not appear to dispute that a similar analysis 
is required for the purpose of examining the consistency of the amended COOL measure with 
Article 2.1. Thus, the increased recordkeeping burden entailed by the amended COOL measure – 
i.e. the source of the increased detrimental impact on imported livestock – is to be compared with 
the origin information conveyed to consumers on the revised labels prescribed by that measure, 
with a view to determining whether the informatio n conveyed to consumers is far less detailed and 
accurate than the information required to be  collected by producers and processors. The 
United States contends that, instead of conducting this analysis, the Panel relied on its finding that the amended COOL measure entails an increased recordkeeping burden as an independent basis 
for its conclusion that the detrimental impact of  that measure does not stem exclusively from 
legitimate regulatory distinctions. 
5.38.  We note that, at the outset of its analys is, the Panel articulated the analytical framework 
that it would employ for the purpose of dete rmining whether the detrimental impact of the 
amended COOL measure stems exclusively from legiti mate regulatory distinctions. In this regard, 
the Panel explained that it would take the objective of the amended COOL measure as a point of 
reference and, drawing upon the Appellate Body 's guidance, it would assess the amended COOL 
measure by reference to whether there is a "di sconnect" between, on the one hand, "the detailed 
information required to be tracked and transmitted by [upstream] producers" and, on the other hand, the information "conveyed to consumers thro ugh the labels prescribed under the [amended] 
COOL measure".
415 In respect of the latter, the Panel explained that it would examine the 
exemptions from the labelling requirements of  the amended COOL measure, as well as the 
accuracy of the labels prescribed by that measure.416 
5.39.  As we see it, the Panel articulated an analytical framework pursuant to which the 
recordkeeping burden entailed by the amended COOL measure would serve as a comparator against which to compare the origin information that is ultimately conveyed to consumers on the 
mandatory labels for muscle cuts of meat. This approach, as articulated by the Panel, comports 
with the approach of the Appellate Body in  the original proceedings set out above.  
5.40.  Turning to the Panel's application of the analytical framework that it had articulated, we 
note that the Panel first considered the detailed origin information that must be collected by 
upstream producers and processors of livestock. In this regard, the Panel recalled its earlier 
findings that had led it to conclude that the amended COOL measure entails an increased recordkeeping burden on upstream producers and processors of US-slaughtered livestock.
417 The 
Panel then examined the information ultimately co nveyed to consumers on the labels prescribed 
by the amended COOL measure. In doing so, the Panel assessed, in particular, the nature and accuracy of the information conveyed on thes e labels and the proportion of the collected 
information that is exempt from being communicated to consumers.
418  
5.41.  As regards the nature and accuracy of th e information conveyed on the revised labels, the 
Panel noted that the greatest incremental impr ovement of the amended COOL measure is for 
Labels B and C, which, the Panel considered, were effectively indistinguishable under the original 
COOL measure.419 The Panel further found that, "although the amended COOL measure increases 
the information communicated to consumers", it "necessarily increases the associated upstream informational (recordkeeping) requirements in order to do so."
420 Moreover, notwithstanding the 
improvement in the nature and accuracy of the information conveyed on the revised labels, the 
Panel considered that, at the same time, these labels introduce the potential for informational inaccuracy in respect of where livestock were "raised". In particular, the Panel recalled its earlier 
finding that the amended COOL measure allows labels to read "raised in the United States" 
(without listing any other country) on meat from Category B feeder cattle that spent a substantial 
                                               
414 Appellate Body Reports, US – COOL , para. 349. 
415 Panel Reports, para. 7.217 (quoting Appellate Body Reports, US – COOL , para. 349). 
416 Panel Reports, para. 7.218. 
417 Panel Reports, paras. 7.220-7.221. 
418 Panel Reports, para. 7.265. 
419 Panel Reports, para, 7.268. 
420 Panel Reports, para. 7.266. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 portion of their lives either in Canada or Mexico. According to the Panel, this was of primary 
importance to its assessment as it represents "potential inaccuracy in light of the average age of cattle traded between the complainants and the United States".
421  
5.42.  As regards the proportion of origin information that is exempt from being communicated to 
consumers at all, the Panel found that the amen ded COOL measure maintains the same proportion 
of information that is not communicated to consumers as a result of the exemptions from coverage of the COOL requirements.
422 The Panel reasoned, therefore, that, due to the increased 
recordkeeping burden under the amended COOL measure, even more "information regarding the 
origin of all livestock will have to be identified, tracked, and transmitted through the chain of 
production by upstream producers in accordance with the recordkeeping requirements … even though 'a considerable proportion' of the beef and pork derived from that livestock will ultimately 
be exempt from the COOL requirements an d therefore carry no COOL label at all."
423 
5.43.  In concluding its overall assessment of whether the detrimental impact of the amended 
COOL measure on imported livestock stems exclusiv ely from legitimate regulatory distinctions, the 
Panel noted that, in the original disputes, the Appellate Body found "the manner in which the 
[original] COOL measure [sought] to provide information to consumers on origin … to be arbitrary, and the disproportionate burden imposed on upstream producers and processors to be 
unjustifiable."
424 The Panel considered this finding of the Appellate Body to be relevant in the 
context of the amended COOL measure, which, the Panel explained, "entails an increased 
recordkeeping burden and a potential for label inaccuracy, and continues to exempt a large proportion of muscle cuts" from its scope.
425 Accordingly, the Panel concluded that, under the 
particular circumstances of this case, the detrimental impact of the amended COOL measure on 
imported livestock does not stem exclusively from legitimate regulatory distinctions.426 
5.44.  Having reviewed the Panel's analysis, it seems to us that the Panel's conclusion that the 
detrimental impact of the amended COOL measur e does not stem exclusively from legitimate 
regulatory distinctions was based on a comparative analysis of three key determinants of the informational "disconnect" that the Appellate Body had identified in the original disputes in relation 
to the original COOL measure: (i) the informational requirements imposed on upstream producers; 
(ii) the nature and accuracy of the information conveyed on the labels; and (iii) the proportion of the collected information that is exempt from being communicated to consumers.
427 Accordingly, 
we do not consider that the Panel, as the United States alleges, relied on its finding that the 
amended COOL measure entails an incr eased recordkeeping burden as an independent  basis for 
concluding that the detrimental impact of that me asure does not stem exclusively from legitimate 
regulatory distinctions.  
5.45.  We recall that the United States further asserts that, in order to conclude that the 
detrimental impact of the amended COOL measur e does not stem exclusively from legitimate 
regulatory distinctions, the origin information required to be collected under that measure must be 
so disproportionate to the information provided to consumers on labels that the collection of the 
information cannot be explained in the first place.428 As we see it, this comports with the analysis 
of the Appellate Body in the original disputes . Indeed, in the original disputes, of central 
importance to the Appellate Body's conclusion under Article 2.1 was its finding that the level of 
information conveyed to consumers through the prescribed labels under the original COOL 
measure was far less detailed and accurate than the information required to be tracked and transmitted by upstream producers and processors.  
5.46.  In looking at the Panel's analysis in the current proceedings, it seems to us that several of 
the discrete findings made by the Panel support the conclusion that the recordkeeping burden entailed by the amended COOL measure is dispro portionate to the information conveyed to 
consumers on the revised labels under that measure. First, the Panel acknowledged that the 
                                               
421 Panel Reports, para. 7.269. 
422 Panel Reports, para. 7.266. 
423 Panel Reports, para. 7.272 (quoting Appellate Body Reports, US – COOL , para. 344 (emphasis 
original; fn omitted)). 
424 Panel Reports, para. 7.282 (quoting Appellate Body Reports, US – COOL , para. 347). 
425 Panel Reports, para. 7.282 (referring to Appellate Body Reports, US – COOL , para. 347).  
426 Panel Reports, para. 7.283. 
427 Panel Reports, para. 7.265. 
428 United States' appellant's submission, para. 115.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 amended COOL measure has increased the amount of information conveyed to consumers on the 
mandatory labels but, importantly, that it has increased the recordkeeping burden on upstream producers in order to do so. Second, the Panel noted that the revised labels under the amended 
COOL measure introduce the potential for informational inaccuracy in respect of the identification 
of where the animals were "raised". Third, in co nnection with the exemptions from the scope of 
the COOL requirements, the Panel reasoned that , due to the increased recordkeeping burden 
under the amended COOL measure, even more  "information regarding the origin of all livestock 
will have to be identified, tracked, and transmi tted through the chain of production by upstream 
producers in accordance with the recordkeeping requirements … even though 'a considerable 
proportion' of the beef and pork derived from that  livestock will ultimately be exempt from the 
COOL requirements and therefore carry no COOL label at all."
429 
5.47.  As we see it, the discrete findings made by  the Panel outlined above support the conclusion 
that the recordkeeping and verification requir ements of the amended COOL measure impose a 
disproportionate burden on producers and processo rs of livestock that cannot be explained by the 
need to provide consumers with information re garding where livestock were born, raised, and 
slaughtered. Accordingly, the detrimental impact on imported livestock arising from these same recordkeeping and verification requirements does not stem exclusively from legitimate regulatory 
distinctions. 
5.48.  In the light of the above, we disagree with  the United States that the Panel's finding that 
the amended COOL measure entails an increased re cordkeeping burden served as an "independent 
basis" for the Panel's conclusion that the detrimental impact of that measure does not stem 
exclusively from legitimate regulatory distinctions. Moreover, we do not consider, as the 
United States alleges, that the Panel "failed to put the issue of recordkeeping within the proper 
analysis, which involves a comparison of the burdens of recordkeeping and the provision of 
information through labels."
430 Accordingly, we find that the Panel did not err, in 
Section 7.5.4.2.4.4 of the Panel Reports, in its consideration of the increased recordkeeping 
burden entailed by the amended COOL measure wi thin its analysis of whether the detrimental 
impact of that measure on imported livestock stems exclusively from legitimate regulatory 
distinctions. 
5.1.2.2  Claims relating to the Panel's analys is of the accuracy of the labels prescribed 
by the amended COOL measure 
5.49.  We turn now to assess the United States' claims concerning the Panel's findings on the 
accuracy of the revised labels prescribed by th e amended COOL measure. The United States puts 
forward two claims of error in relation to these fi ndings. First, the United States contends that the 
Panel erred in finding that Labels B and C are potentially inaccurate, because this finding is based 
on "incorrect hypotheticals" and does not account for the actual trade in livestock among the three parties to these disputes. Second, the United States claims that the Panel erred in considering that 
its finding that Labels B and C are potentially inaccurate supports a conclusion that the detrimental 
impact of the amended COOL measure does not stem exclusively from legitimate regulatory 
distinctions. The United States argues, in this regard, that the Panel failed to make a determination of whether the labels prescribed by the amended COOL measure are designed and 
applied in an even-handed manner, including of whether a "disconnect" exists between, on the one 
hand, the origin information required to be colle cted by producers and processors and, on the 
other hand, the origin information that is ultimately conveyed to consumers.
431  
5.1.2.2.1  Whether the Panel's analysis of th e accuracy of Labels B and C was based on 
incorrect hypotheticals 
5.50.  The United States claims that the Panel's finding that Labels B and C are potentially 
inaccurate is in error because it was based on incorrect hypothetical transactions that do not 
reflect actual trade in livestock among the three parties to these disputes. Noting that the Panel's analysis of the accuracy of Labels B and C turns on how information relating to where an animal was "raised" is communicated on these labels in various scenarios, the United States asserts that 
                                               
429 Panel Reports, para. 7.272 (quoting Appellate Body Reports, US – COOL , para. 344 (emphasis 
original; fn omitted)). 
430 United States' appellant's submission, para. 113. 
431 United States' appellant's submission, para. 131. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 some of these scenarios reflect actual trade in livestock among the three parties to the disputes, 
and others are purely hypothetical.432 The United States submits that, in determining whether 
Labels B and C are potentially inaccurate, the Pane l treated each of the scenarios it examined as 
being equally persuasive, without regard for thei r improbability. Thus, as regards Label B, the 
Panel treated the scenario where an animal was born  in Canada and exported to the United States 
for further raising and slaughter – a scenario that the United States admits occurs – on equal terms with the scenario where an animal was born in Canada, exported to Mexico for raising, and 
then exported to the United States for further raising and slaughter – a scenario that the 
United States alleges does not occur.  
5.51.  The United States further contends that the Panel was precluded from relying on 
hypothetical transactions that do not reflect actual trade in livestock because the claim before it 
was one of alleged de facto discrimination under Article 2.1 of the TBT Agreement. The 
United States submits, in this regard, that, in a de facto  case, a panel must base its finding of 
detrimental impact on the effect of the measure in the marketplace – "i.e., the 'facts'".
433 The 
United States, thus, submits that, as was the case in Canada – Periodicals , the Panel's reliance on 
such hypotheticals lacks "proper reasoning based on inadequate factual analysis" and, as such, constitutes legal error.
434  
5.52.  Canada responds that, in arguing that th e Panel based its finding that Labels B and C are 
potentially inaccurate on incorrect hypothetical scenarios, the United States mischaracterizes the Panel's analysis. According to Canada, the Panel correctly found that, on average, "Canadian feeder cattle spend between 45 and 68% … of their raising period outside the United States", and, 
on this basis, correctly determined that the country of raising flexibility under the amended COOL 
measure allows Label B "to designate the United States as the sole place of raising to an animal that spent as little as 15 days in the United States".
435 Canada asserts that it was on this basis 
that the Panel found that Label B entails a potential for conveying inaccurate information. Canada 
submits that, accordingly, the United States' claim that the Panel based its analysis of label accuracy under the amended COOL measure on incorrect hypothetical livestock transactions has 
no foundation.  
5.53.  Canada further considers as being without merit the United States' claim that the Panel was 
precluded from examining hypothetical scenarios because the claim before it was one of de facto  
discrimination under Article 2.1 of the TBT Agreement. In this regard, Canada recalls that, in 
determining whether the detrimental impact of a technical regulation on like imported products 
reflects discrimination, panels are required to assess, inter alia , the design, architecture, and 
revealing structure of the technical regulation at issue.
436 Canada submits that, in short, the 
analysis under Article 2.1 is not strictly confined to factual matters concerning actual trade in the 
relevant market. 
5.54.  Canada also observes that the Panel found  that, although Label C "may allow – and possibly 
require – omission of actual countries of raising, resulting in label inaccuracy", that label "does not 
appear likely to convey misleading informatio n about the country where animals imported for 
immediate slaughter are raised, given that these appear to be most commonly born and raised in the country of export."
437 Hence, in Canada's view, the Panel's identification of the informational 
shortcomings of the labels prescribed by the am ended COOL measure was, thus, largely, but not 
entirely, focused on Label B.  
                                               
432 The United States explains that, as regards Label B, the Panel found that this label is potentially 
inaccurate in two scenarios: (i) where an animal had a "s ingle foreign origin", i.e. born in either Canada or 
Mexico and then exported to the United  States for further raising and slaugh ter; and (ii) where an animal had a 
"multiple foreign origin", e.g. born in Mexico, exported to Canada for fu rther raising, then exported to the 
United States for further rais ing and slaughter. As regards Label C, the Panel found that, although this label is 
accurate in practice, it is potentiall y inaccurate when affixed to muscle cuts produced from animals that have 
been the subject of at least one, and maybe two, tr ansactions between Mexico and Canada, prior to being 
exported to the United States for immediate slaughte r. (United States' appellant's submission, para. 152) 
433 United States' appellant's submission, para. 158. 
434 United States' appellant's submission, para. 159 (quoting Appellate Body Report, Canada – 
Periodicals  p. 22, DSR 1997:I, p. 467). 
435 Canada's appellee's submission, para. 101 (quoting Panel Reports, para. 7.244). 
436 Canada's appellee's submission, para. 106 (referring to Appellate Body Reports, US – COOL , 
para. 271, in turn referring to Appellate Body Report, US – Clove Cigarettes , para. 182). 
437 Canada's appellee's submission, para. 99 (quoting Panel Reports, para. 7.254). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.55.  For its part, Mexico submits that, contrary to the United States' assertions, the Panel's 
finding that Label B potentially conveys inaccurate information was not based on incorrect hypotheticals but, rather, on a carefully reasoned  and objective assessment of the implications of 
the design and application of the labelling rules prescribed by the amended COOL measure. Mexico 
submits that, in undertaking this assessment, the Panel clearly and consistently indicated where 
certain so-called "hypothetical scenarios" would be unlikely to occur with material frequency in actual practice, and discounted them accordingly.
438 Mexico contends that the Panel's finding with 
respect to Label B was not based on these infrequent scenarios but, rather, on specific scenarios in 
which the amended COOL measure, in its application, would permit labels indicating only "raised in the United States" for "livestock that commonly spend between approximately one third and one half of their lives elsewhere".
439 This was not an unlikely "hypothetical scenario" but, rather, a 
reasoned finding based on the average age at whic h Category B feeder cattle are imported into the 
United States from Mexico and Canada. 
5.56.  As regards Label C, Mexico observes that the Panel recognized that the potential 
inaccuracies that it observed with respect to the omission of countries of raising on that label were 
less likely to occur in practice.440 Mexico asserts that it is, thus, clear from the Panel's reasoning 
that its concerns regarding potential label inaccuracy under the amended COOL measure were 
focused on Label B, in respect of which the Panel found that, "in its application , the amended 
COOL measure permits labels indicating 'raised in the United States' alone for livestock that commonly spend between approximately one thir d and one half of their lives elsewhere."
441  
5.57.  In addressing the United States' claim, we consider first the United States' argument that, 
because the claim before the Panel was one of de facto  discrimination under Article 2.1, the Panel 
was precluded from examining the accuracy of  labels under the amended COOL measure in 
hypothetical scenarios "that do not reflect" actual trade in livestock between Canada, Mexico, and 
the United States.442  
5.58.  We have considered above that, because Article 2.1 is concerned with competitive 
opportunities  for like imported products, the analysis under that provision is not limited to an 
examination of the operation of the technical regula tion at issue within the confines of scenarios 
that are representative of actual patterns of tr ade. We have emphasized, however, that a panel 
may not ascribe undue weight  to the effect of a technical regulation in any hypothetical scenario 
for the purposes of its analysis under Article 2.1. Instead, a panel's analysis under Article 2.1 must 
be grounded in an assessment of the technical regulation at issue in scenarios in which competitive 
opportunities may arise, notwithstanding that they may not be currently reflective of actual patterns of trade.
443  
5.59.  Accordingly, we disagree with the United States to the extent that it contends that, in 
considering claims of de facto  discrimination under Article 2.1, a panel's analysis is confined to 
assessing the effect of a measure on actual trade. 
5.60.  The United States argues, in any event, that the Panel's finding that Labels B and C are 
potentially inaccurate was based on incorrect  hypotheticals. We note that, in considering the 
accuracy of the labels prescribed by the am ended COOL measure, the Panel addressed the 
complainants' contention that the amended COOL measure may convey potentially misleading or 
inaccurate information to consumers as a result of the multiple countries of raising flexibility – 
applicable to Label B – and the rules applicable to Label C.444  
5.61.  As regards the alleged inaccuracy of Label B due to the multiple countries of raising 
flexibility, the Panel noted that this flexibility can be applied only in respect of the labelling of 
Category B muscle cuts deriving from animals that were raised in at least two countries, including 
the United States. The Panel further explained that, pursuant to this flexibility, "if animals are born 
                                               
438 Mexico's appellee's submission, para. 46 (referring to Panel Reports, para. 7.238). 
439 Mexico's appellee's submission, para. 46 (quoting Panel Reports, para. 7.244). 
440 Mexico's appellee's submission, para. 47 (quoting Panel Reports, para. 7.252). 
441 Mexico's appellee's submission, para. 47 (quoting Panel Reports, para. 7.244 (emphasis original)). 
442 United States' appellant's submission, para. 158. 
443 See supra , paras. 5.14-5.16. 
444 Panel Reports, para. 7.232. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 and raised in another country and subsequently further raised in the United States, only the 
raising that occurs in the United States needs to be declared on the label."445  
5.62.  The Panel stated that it would evaluate the accuracy of Label B by considering evidence 
regarding where Category B animals were actually "raised", and what must be ultimately labelled 
according to the terms of the amended COOL measure.446 After reviewing evidence concerning the 
age at which feeder cattle are imported into the United States, as well as the amount of time feeder cattle typically spend in the United States prior to slaughter, the Panel considered that the 
slaughter age of cattle is approximately 22 months.
447 The Panel considered further that, relative 
to this slaughter age, it was clear from the evidence that feeder cattle exported to the United States typically spend a substantial part of their lifespan in their country of birth. In this regard, the Panel pointed out that the parties' evidence indicated that, on average, Canadian 
feeder cattle spend between 45% and 68%, while Mexican feeder cattle spend between 27% and 
32%, of their raising period outside the United States. Yet, these feeder cattle, explained the Panel, will be processed into muscle cuts that are eligible to be labelled with a Category B label 
that reads "Born in Canada/Mexico, Raised and Slaughtered in the United States". Thus, the Panel 
found that feeder cattle imported into the United States may spend up to 68% of their lifespan outside the United States, yet, the resulting meat products could be labelled to indicate that the 
animals from which the meat products derived were raised only in the United States.
448 
5.63.  In the light of the above, the Panel was no t persuaded by the United States' contention that 
Label B can be regarded as " entirely  accurate"449, particularly given the definition of "raised" under 
the amended COOL measure.450 The Panel further observed that the rationale for permitting 
flexibility to designate the United States as the so le place of raising is that this would "reduce the 
number of required characters on the label"451, and that there is a "presumption" that the raising 
of an animal must naturally occur, at least in part, in an animal's country of birth. The Panel 
considered, however, that this takes no account of the substantial amount of time that traded 
livestock typically spend outside the United States.452 
5.64.  In the light of the Panel's analysis as se t out above, we do not consider that the Panel's 
finding that the amended COOL measure entails a potential for label inaccuracy was based  on 
hypothetical scenarios, as argued by the United States. Instead, the Panel's findings concerning the accuracy of Label B was based on unchallenge d evidence concerning where feeder cattle are 
actually "raised", and what must be ultimately indicated on Label B according to the terms of the 
amended COOL measure. 
5.65.  As regards Label C, the Panel concluded that the design  of the rules pertaining to this label 
may allow, "and possibly require", the omission of actual countries of raising, "resulting in label 
inaccuracy as to an animal's place of raising".
453 The Panel qualified this finding by acknowledging, 
however, that, "[i]n its actual application to trad ed livestock … Label C do es not appear likely to 
convey misleading information about the country where animals imported for immediate slaughter 
are raised, given that these appear to be most commonly born and raised in the country of 
export."454 Thus, we find persuasive Mexico's contention that the Panel did not rely on unlikely 
hypothetical scenarios in determining that there is a potential for label inaccuracy under the amended COOL measure but, instead, that the Pane l "considered all of the potential scenarios" and 
"discounted or disregarded those that were unlikely to occur in actual practice".
455  
                                               
445 Panel Reports, para. 7.233 (quoting 2013 Final Rule, p. 31368). 
446 Panel Reports, para. 7.239. 
447 Panel Reports, para. 7.242.  
448 Panel Reports, para. 7.242. 
449 Panel Reports, para. 7.243 (quoting United Stat es' comments on the complainants' responses to 
Panel question No. 9, para. 16). (emphasis added by the Panel) 
450 "Raised" is defined by way of exclusion from the extreme start and end points of an animal's life, 
that is, from birth until slaughter or, in the case of Ca tegory C, entry into the United States for immediate 
slaughter. Immediately after an animal is born, "the period of time " for raising commences and continues for 
the remaining lifespan. (Panel Reports, para. 7.234 (quoting 2009 Final Rule (AMS), Section 65.235)) 
451 Panel Reports, para. 7.243 (quoting 2013 Final Rule, p. 31368). 
452 Panel Reports, para. 7.243. 
453 Panel Reports, para. 7.254. 
454 Panel Reports, para. 7.254. 
455 Mexico's appellee's submission, para. 49. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.66.  In the light of the foregoing considerations, we disagree with the United States that the 
Panel's finding that the amended COOL measure entails a potential for label inaccuracy was based on "incorrect hypotheticals." Accordingly, we find  that the Panel did not err, in paragraph 7.269 of 
the Panel Reports, in its assessment of the accu racy of Labels B and C as prescribed by the 
amended COOL measure. 
5.1.2.2.2  Whether the Panel erred by failing to assess the potential for label inaccuracy 
under the amended COOL measure in relation to the recordkeeping burden entailed by 
that measure  
5.67.  We turn now to the United States' claim that the Panel's finding that Labels B and C are 
potentially inaccurate does not support the Panel's conclusion that the detrimental impact of that measure on imported livestock does not stem excl usively from legitimate regulatory distinctions. 
For the United States, the Panel was required to assess the potential for label inaccuracy under the 
amended COOL measure in relation to the reco rdkeeping burden entailed by that measure by 
determining whether a "disconnect" exists between, on the one hand, the origin information 
required to be collected by producers and processors and, on the other hand, the origin 
information that is ultimately conveyed to consumers on the mandatory labels.
456 The 
United States submits that the Panel erred by failing to make this determination.  
5.68.  According to the United States, the "central criticism" of the Appellate Body with regard to 
the original COOL measure was that the origin information provided by Labels B and C was "far less detailed and accurate than the information required to be tracked and transmitted by … 
producers and processors" of livestock, such that the tracking and transmission of such 
information "[could not] be explained by the need to convey [origin] information" on meat 
products to consumers.
457 The United States contends that the Panel adopted an analytical 
framework that is different from the Appellate Body's approach in the original disputes. In this 
regard, the United States submits that the Panel criticized Labels B and C because of their 
potential to omit information concerning some of the countries where an animal was raised when its raising occurred in multiple countries. However, the Panel did not make a finding that the 
amended COOL measure requires that producers an d processors of livestock track and transmit 
any information that is not provided by the labels. As such, the United States contends that the Panel erred, as a matter of law, in finding that the informational "disconnect" that the Appellate Body found to exist under the original COOL measure continues to exist under the 
amended COOL measure.
458  
5.69.  Canada and Mexico respond that, in its assessment of whether the detrimental impact of the 
amended COOL measure stems exclusively from legitimate regulatory distinctions, the Panel 
correctly considered the upstream recordkeeping burden entailed by the amended COOL measure, 
the potential for label inaccuracy entailed by that measure, and the exemptions from coverage of the COOL requirements. Canada and Mexico submit that the interaction of these three factors 
within the overall architecture of the amende d COOL measure supports the Panel's ultimate 
conclusion that the detrimental impact caused  by the amended COOL measure does not stem 
exclusively from legitimate regulatory distinctio ns. Canada and Mexico submit that this was a 
sufficient basis for the Panel's finding of a vi olation of Article 2.1 of the TBT Agreement.
459  
5.70.  Turning to our assessment of the United Stat es' present claim, we recall that, in connection 
with a separate claim put forward by the United States on appeal, we have considered in detail above the Panel's overall assessment of whether the detrimental impact of the amended COOL 
measure stems exclusively from legitimate regulatory distinctions.
460 After examining the Panel's 
analysis, we have considered that the Panel's conclusion that the detrimental impact of the amended COOL measure does not stem exclusively from legitimate regulatory distinctions was 
based on a comparative analysis of three key determinants of the informational "disconnect" that 
the Appellate Body had identified in the original disputes in relation to the original COOL measure: (i) the informational requirements imposed on upstream producers; (ii) the nature and accuracy of 
                                               
456 United States' appellant's submission, para. 131. 
457 United States' appellant's submission, para. 172 (quoting Appellate Body Reports, US – COOL , 
para. 349). 
458 United States' appellant's submission, para. 179. 
459 Canada's appellee's submission, para. 108; Mexico's  response to questioning at the oral hearing. 
460 See supra , paras. 5.38-5.44. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the information conveyed on the labels; and (iii) the proportion of the collected information that is 
exempt from being communicated to consumers.461 In addition, we have considered that several 
elements of the Panel's analysis, and discrete findin gs made by the Panel in relation to these three 
determinants, support the conclusion that the reco rdkeeping and verification requirements of the 
amended COOL measure impose a disproportiona te burden on producers and processors of 
livestock that cannot be explained by the need  to provide origin information to consumers.462 
Accordingly, we are not persuaded by the United States' contention that the Panel failed to 
address the question of whether there is a "di sconnect" between, on the one hand, the information 
required to be collected by producers and proces sors of livestock and, on the other hand, the 
information ultimately conveyed to consumers on  the labels prescribed by the amended COOL 
measure.  
5.71.  For the reasons expressed above, we find that the Panel did not err, in Section 7.5.4.2.4.4 
of the Panel Reports, in its consideration of the potential for label inaccuracy under the amended 
COOL measure within its analysis of whether the detrimental impact of that measure on imported 
livestock stems exclusively from legitimate regulatory distinctions.  
5.1.2.3  Claims relating to the exemptions  prescribed by the amended COOL measure 
5.72.  We turn now to the United States' claim that the Panel erred in finding that the scope of the 
exemptions prescribed by the amended COOL meas ure support a conclusion that the detrimental 
impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions.
463  
5.73.  We recall that the COOL statute provides for three exemptions from the COOL 
requirements. In particular, it exempts: (i) en tities not meeting the definition of the term 
"retailer"; (ii) covered commodities that are used as ingredients in "processed food items"; and (iii) products served in "food service establishm ents". These exemptions were provided for under 
the original COOL measure, and are maintained by the amended COOL measure.  
5.74.  In its overall assessment of whether the detrimental impact of the amended COOL measure 
stems exclusively from legitimate regulatory distinctions, the Panel considered the exemptions 
from the coverage of the COOL requirements as evidence that the recordkeeping burden giving 
rise to the detrimental impact on imported livestock "cannot be explained by the need to convey to consumers information regarding the countries where livestock were born, raised, and slaughtered."
464 
5.75.  On appeal, the United States claims that the Panel erred in finding that the scope of the 
exemptions under the amended COOL measure supports a conclusion that the detrimental impact of that measure on imported livestock does no t stem exclusively from legitimate regulatory 
distinctions.
465 This claim rests on three main grounds.  
5.76.  First, the United States claims that the Panel erred in finding that the exemptions are 
relevant for the analysis, under Article 2.1 of the TBT Agreement, of whether the detrimental 
impact of the amended COOL measure stems exclus ively from legitimate regulatory distinctions.466 
The United States submits in this connection that, because the exemptions are not relevant regulatory distinctions drawn by the amende d COOL measure, the Panel should not have 
considered them in its analysis under Article 2.1. 
5.77.  Second, the United States claims that, "a side from the fact that the exemptions are not 
relevant", the Panel erred by failing to take into account the following considerations in its assessment: (i) that the exemptions apply equally to meat derived from imported and domestic 
livestock and are, therefore, even handed in their design and application; (ii) the "legitimate desire 
of Members to adjust the scope of their technical regulations" to take account of cost considerations; and (iii) that, in the light of the "enhanced accuracy" of the labels prescribed by 
                                               
461 Panel Reports, para. 7.265. 
462 See supra , paras. 5.46-5.47. 
463 United States' appellant's submission, paras. 184-185.  
464 Panel Reports, para. 7.277 (quoting Appellate Body Reports, US – COOL , para. 349). 
465 United States' appellant' s submission, para. 91.  
466 United States' appellant's submission, para. 186. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the amended COOL measure, the recordkeeping burden entailed by that measure can now "be 
explained by the need to provide origin information to consumers".467  
5.78.  Third, the United States submits that th e Panel failed to evaluate the operation of the 
exemptions within the US market and, therefore,  that the Panel erred in concluding that these 
exemptions support a conclusion that the detr imental impact of the amended COOL measure 
reflects discrimination in violation of Article 2.1 of the TBT Agreement.468  
5.79.  We turn now to examine these distinct cl aims of error advanced by the United States. 
Before doing so, we recall briefly the Panel's ke y findings concerning the exemptions under the 
amended COOL measure for the purpose of its as sessment of whether the detrimental impact of 
that measure on imported livestock stems exclusively from legitimate regulatory distinctions. 
5.80.  We recall that, having found that the amended COOL measure increases the detrimental 
impact of the original COOL measure on imported livestock, the Panel turned to consider whether 
such detrimental impact stems exclusively from legitimate regulatory distinctions. In considering this issue, the Panel first identified the relevant regulatory distinctions drawn by the amended 
COOL measure as the distinctions between the three production steps, as well as the mandatory 
labels to be affixed to muscle cuts of beef and pork. The Panel observed that the parties had not 
disputed that these are relevant regulatory distinctions under the amended COOL measure.
469 The 
Panel then proceeded to consider the relevance of other elements of the amended COOL measure 
for the analysis of whether the detrimental impact of that measure stems exclusively from legitimate regulatory distinctions.
470  
5.81.  As regards the relevance of the exemptions, the Panel observed that, in the original 
disputes, the Appellate Body had considered relevant for its analysis under Article 2.1 "the fact 
that the COOL measure exempts from its labelling requirements muscle cuts of beef and pork that 
are 'ingredient[s] in a processed food item', or are sold in a 'food service establishment' or in an 
establishment that is not a 'retailer'".471 According to the Panel, the Appellate Body's attribution of 
relevance to the exemptions in the original disputes was consistent with the Appellate Body's explanation that, in assessing whether the detrimental impact of a technical regulation stems 
exclusively from legitimate regulatory distinctions, a panel must "carefully scrutinize the particular 
circumstances of the case, that is the design, architecture, revealing structure, operation, and application of the technical regulation at issue".
472  
5.82.  The Panel, therefore, concluded that, alth ough the exemptions from the COOL requirements 
are not "relevant regulatory distinctions" as such, they should, nevertheless, be taken into account 
as part of its examination of the "overall archit ecture" of the amended COOL measure, insofar as 
they are relevant to the issue of whether "the detrimental impact [of that measure on imported 
livestock] reflects discrimination in violation of Article 2.1".473 
5.83.  The Panel then examined the exemptions as  part of its overall assessment of whether the 
detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory 
distinctions. The Panel considered that the amende d COOL measure failed to address, in any way, 
the Appellate Body's finding that "the [original] COOL measure exempts from its labelling 
                                               
467 United States' appellant's submission, para. 187. 
468 United States' appellant's submission, para. 188. 
469 See Canada's second written submission to the Pane l, para. 47; Mexico's firs t written submission to 
the Panel, paras. 118-119; and United States' second written submission to the Panel, para. 19. 
470 The Panel noted that the United States contended that the complainants had inappropriately 
challenged "other regulatory distinctions that either have nothing to do with the detrimental impact caused by the amended COOL measure or, in fact, are not regulatory  distinctions at all". (P anel Reports, para. 7.199 
(quoting United States' first written submission to the Pa nel, para. 81)) The United St ates had referred in this 
regard to: (i) the exemptions and de fined scope of the amended COOL meas ure; (ii) Label D for muscle cuts 
derived from foreign-slaughte red animals; (iii) the COOL statute's pr ohibition of a trace-back system; and 
(iv) Label E for ground meat products. We address Labe ls D and E and the prohibition of a trace-back system 
in the context of the claims raised by Canada and Me xico in their other appeals under Article 2.1 of the 
TBT Agreement in section 5.1.3 infra.  
471 Panel Reports, para. 7.201 (quoting Appellate Body Reports, US – COOL , para. 344). 
472 Panel Reports, para. 7.202 (quoting Appellate Body Reports, US – COOL , para. 271, in turn referring 
to Appellate Body Report, US – Clove Cigarettes , para. 182). 
473 Panel Reports, para. 7.203. (fn omitted) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 requirements muscle cuts of beef and pork that are 'ingredient[s] in a processed food item', or are 
sold in a 'food service establishment' or in an establishment that is not a 'retailer'."474 Further, the 
Panel stated that it had no evidence before it that called into question the finding of the original panel that "the ultimate disposition of a meat product is often not known at any particular stage of 
the production chain".
475 Thus, the Panel considered that, due to the increased recordkeeping 
burden under the amended COOL measure, even more "information regarding the origin of all 
livestock will have to be identified, tracked, and transmitted through the chain of production by 
upstream producers in accordance with the re cordkeeping requirements … even though 'a 
considerable proportion' of the beef and pork derive d from that livestock will ultimately be exempt 
from the COOL requirements and therefore carry no COOL label at all."476 
5.84.  For these reasons, the Panel concluded that the exemptions under the amended COOL 
measure constitute evidence that the recordkeeping burden giving rise to the detrimental impact 
on imported livestock "cannot be explained by the need to convey to consumers information regarding the countries where livestock were born, raised, and slaughtered".
477 
5.85.  We turn now to examine the distinct claims of error raised by the United States concerning 
the Panel's analysis of the exemptions from the COOL requirements. 
5.1.2.3.1  Whether the Panel erred in considering that the exemptions from the COOL 
requirements were relevant for its analysis under Article 2.1 
5.86.  The United States claims that the Panel erre d in finding that the exemptions are relevant for 
the analysis of whether the detrimental impact of the amended COOL measure stems exclusively 
from legitimate regulatory distinctions.478 Relying on the Appellate Body's statement in US – 
Tuna II (Mexico)  that "[it] only need[ed] to examine the distinction that account[ed] for the 
detrimental impact on Mexican tuna products", the United States argues that only regulatory distinctions that account for the detrimental impact on like imported products can answer the 
question of whether such detrimental impact reflects discrimination.
479 The United States points 
out that the original panel had found that the exemptions under the original COOL measure were not a source of detrimental impact on imported livestock.
480 The United States submits that, 
accordingly, the compliance Panel should not have found that the exemptions under the amended 
COOL measure are relevant for the analysis of whether the detrimental impact of that measure stems exclusively from legitimate regulatory distinctions.
481  
5.87.  Canada responds that the Panel's attribution of relevance to the exemptions is consistent 
with the Appellate Body's approach to the exem ptions under the original COOL measure and the 
general legal framework that the Appellate Body has prescribed for the analysis under Article 2.1 of the TBT Agreement.
482 According to Canada, this legal framework requires panels to scrutinize 
carefully the particular circumstances of the case – that is, the design, architecture, revealing 
structure, operation, and application of the technical regulation at issue – rather than simply the relevant regulatory distinctions.  
5.88.  In respect of the United States' reliance on the Appellate Body report in US – Tuna II 
(Mexico) , Canada submits that, in the light of the clear guidance that the Appellate Body has 
provided to panels, as well as the analysis conducted by the Appellate Body in the original disputes, the statement relied on by the United States cannot "credibly" be interpreted as a 
prohibition on the consideration of elements of a challenged technical regulation, or the particular 
circumstances of the case, that do not directly account for the detrimental impact on imported 
                                               
474 Panel Reports, para. 7.272 (quoting Appellate Body Reports, US – COOL , para. 344). 
475 Panel Reports, para. 7.272 (quoting Appellate Body Reports, US – COOL , para. 344, in turn referring 
to Original Panel Reports, US – COOL , para. 417). 
476 Panel Reports, para. 7.272 (quoting Appellate Body Reports, US – COOL , para. 344 (emphasis 
original; fn omitted)). 
477 Panel Reports, para. 7.277 (quoting Appellate Body Reports, US – COOL , para. 349). 
478 United States' appellant's submission, para. 203. 
479 Appellate Body Report, US – Tuna II (Mexico) , para. 286 (emphasis original); United States' 
appellant's submission, para. 195. 
480 United States' appellant's submission, para. 196 (referring to Original Panel Reports, US – COOL , 
paras. 7.417 and 7.419). 
481 United States' appellant's submission, para. 201. 
482 Canada's appellee's submissi on, para. 59. (fns omitted) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 products but, nevertheless, demonstrate the ar bitrary or unjustifiable character of such 
detrimental impact.483  
5.89.  For Mexico, the Panel correctly found that the exemptions are relevant for the analysis 
under Article 2.1 because they constitute an essential element of the design, architecture, 
revealing structure, operation, and application of the amended COOL measure. Mexico submits 
that, contrary to the interpretation proposed by the United States, the Appellate Body's statement 
in US – Tuna II (Mexico)  does not restrict or narrow the ma nner in which the legitimacy of the 
relevant regulatory distinctions should be examined for the purposes of Article 2.1 of the 
TBT Agreement. According to Mexico, such an examination must take into account the operation and application of the relevant regulatory distinction – i.e. how it functions in practice – within the context of the design, overall architecture, and revealing structure of the technical regulation. 
Mexico emphasizes that the Appellate Body confirmed as much in the original disputes when it 
explained that, "in assessing even-handedness, a panel must carefully scrutinize the design, 
architecture, revealing structure, operation and application of the technical regulation at issue."
484 
5.90.  Turning to our analysis, we consider that the United States' claim raises the issue of what 
elements of a technical regulation are relevant fo r the inquiry of whether the detrimental impact of 
that technical regulation on like imported products stems exclusively from legitimate regulatory 
distinctions. In particular, we must consider whether elements of a technical regulation that have 
not been identified as relevant regulatory distinctions can be examined for the purpose of determining whether the detrimental impact of that measure on like imported products stems exclusively from legitimate regulatory distinctions.  
5.91.  We recall that, in the original disputes, the Appellate Body explained that some technical 
regulations that have a de facto  detrimental impact on imported products may not be inconsistent 
with Article 2.1 "when such impact stems exclusively from a legitimate regulatory distinction".
485 
The Appellate Body further explained that, by contrast, where a regulatory distinction is not 
designed and applied in an even-handed manner486 – because, for example, it is designed or 
applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination – that 
distinction cannot be considered "legitimate", and the detrimental impact on competitive 
opportunities for like imported products will reflect discrimination in violation of Article 2.1. The Appellate Body considered that, in assessing whether a regulatory distinction is designed and applied in an "even-handed" manner, a panel must "carefully scrutinize the particular 
circumstances of the case, that is, the design, ar chitecture, revealing structure, operation, and 
application of the technical regulation at issue".
487 
5.92.  Thus, if a panel finds that a technical regulation has a de facto  detrimental impact on 
competitive opportunities for like imported products , the focus of the inquiry shifts to whether such 
detrimental impact stems exclusively from legitimate regulatory distinctions. This inquiry probes the legitimacy of regulatory distinctions through careful scrutiny of whether they are designed and 
applied in an even-handed manner such that they may be considered "legitimate" for the purposes 
of Article 2.1.  
5.93.  We consider, therefore, that the inquiry in to whether the detrimental impact of a technical 
regulation on like imported products stems exclusively from legitimate regulatory distinctions must 
focus on those regulatory distinctions that account for such detrimental impact. Further, the 
legitimacy of such regulatory distinctions, for the purposes of Article 2.1, is a function of whether 
they are designed and applied in an even-h anded manner. While the assessment of even-
handedness focusses on the regulatory distinction(s) causing the detrimental impact on imported 
products, other elements of the technical regulation are relevant for that assessment to the extent that they are probative of whether such detrimental impact stems exclusively from legitimate 
regulatory distinctions. Indeed, as the Appellate Body  explained in the original disputes, a panel, in 
                                               
483 Canada's appellee's submission, para. 62.  
484 Mexico's appellee's submission, para. 57 (quoting Appellate  Body Reports, US – COOL , para. 271, in 
turn quoting Appellate Body Report, US – Clove Cigarettes , para. 182). 
485 Appellate Body Reports, US – COOL , para. 271 (referring to Appellate Body Reports, US – Clove 
Cigarettes , para. 182; and US – Tuna II (Mexico) , para. 215). 
486 Appellate Body Reports, US – COOL , para. 271 (referring to Appellate Body Reports, US – Clove 
Cigarettes , para. 182; and US – Tuna II (Mexico) , para. 216). 
487 Appellate Body Reports, US – COOL , para. 271 (referring to Appellate Body Report, US – Clove 
Cigarettes , para. 182). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 assessing even-handedness for the purposes of Articl e 2.1, must "carefully scrutinize the particular 
circumstances of the case, that is, the design, ar chitecture, revealing structure, operation, and 
application of the technical regulation at issue".488  
5.94.  Thus, the inquiry under Article 2.1 must situate the regulatory distinctions that account for 
the detrimental impact on imported products within the overall design and application of the 
technical regulation at issue. In this way, a determination can be made as to whether these distinctions are designed and applied in an even-handed manner such that they may be considered 
"legitimate" for the purposes of Article 2.1, or  whether, instead, they lack even-handedness 
because, for example, they are designed and ap plied in a manner that constitutes arbitrary or 
unjustifiable discrimination in violation of Article 2.1.  
5.95.  We emphasize that the analysis described  above is meant to assess an allegation of de facto  
discrimination under Article 2.1 of the TBT Agreement. Such de facto  discrimination against 
imported products will not be immediately discernib le from the text of a measure, nor may it be 
discernible when its operation is assessed exclusiv ely through the lens of one of its components. 
Therefore, technical regulations must be assessed as composite legal instruments through careful 
scrutiny of their design, architecture, revealing structure, operation, and application.  
5.96.  In support of its argument that the Panel erred in attributing relevance to the exemptions 
for the purposes of its analysis under Article 2.1, the United States relies on the Appellate Body's 
statement in US – Tuna II (Mexico)  that "[it] only need[ed] to examine the distinction that 
account[ed] for the detrimental impact on Mexican tuna products."
489 This statement merely 
confirms that the inquiry into whether the detrimental impact of a technical regulation on imported 
products stems exclusively from legitimate regulatory distinctions has, as its focus, those 
regulatory distinctions that account for such detrimental impact. Thus, those regulatory distinctions are the distinctions that must be assessed to determine whether they are designed 
and applied in an "even-handed" manner, such that they may be considered "legitimate" for the 
purposes of Article 2.1. However, the statement of  the Appellate Body on which the United States 
relies does not exclude consideration of other relevant elements that may be probative of whether 
the detrimental impact on imported products stems exclusively from legitimate regulatory 
distinctions. Indeed, in US – Tuna – II (Mexico) , the Appellate Body recalled that, in making a 
determination of whether a measure is de facto  inconsistent with Article 2.1, "a panel must 
carefully scrutinize the particular circumstances of the case, that is, the design, architecture, 
revealing structure, operation, and application of the technical regulation at issue, and, in 
particular, whether that technical regulation is even-handed."
490  
5.97.  To us, the analytical framework followed by the Appellate Body in examining claims under 
Article 2.1 does not support the United States' contention that a panel may examine only the 
regulatory distinctions causing the detrimental impact on imported products, for the purposes of assessing the consistency of a technical regulation with Article 2.1 of the TBT Agreement.
491 We, 
therefore, disagree with the United States ' reading of the Appellate Body report in US – Tuna II 
(Mexico) .  
5.98.  For the reasons expressed above, we find that the Panel did not err, in paragraph 7.203 of 
the Panel Reports, in finding that the exemptio ns prescribed by the amended COOL measure are 
relevant for the analysis of whether the detrimental impact of that measure on imported livestock 
stems exclusively from legitimate regulatory distinctions. 
                                               
488 Appellate Body Reports, US – COOL , para. 271 (quoting Appellate Body Report, US – Clove 
Cigarettes , para. 182). 
489 Appellate Body Report, US – Tuna II (Mexico) , para. 286 (original emph asis); United States' 
appellant's submission, para. 195. 
490 Appellate Body Report, US – Tuna II (Mexico) , para. 225 (quoting Appellate Body Report, US – Clove 
Cigarettes , para. 182). 
491 United States' appellant's submission, para. 195. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.1.2.3.2  Whether the Panel erred in find ing that the exemptions under the amended 
COOL measure support a conclusion that th e detrimental impact of that measure on 
imported livestock reflects discrimination 
5.99.  We turn now to the second ground of the United States' appeal of the Panel's finding that 
the exemptions under the amended COOL measur e support a conclusion that the detrimental 
impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions. The United States claims that, "asi de from the fact that the exemptions are not 
relevant" to the analysis under Article 2.1, the Panel erred by failing to take into account the 
following considerations: (i) that the exemptions apply equally to meat derived from imported and domestic livestock and are, therefore, even hand ed in their design and application; (ii) the 
"legitimate desire of Members to adjust the scope of their technical regulations" to take account of 
cost considerations; and (iii) that, in the light of the "enhanced accuracy" of the labels prescribed 
by the amended COOL measure, the recordkeeping burden entailed by that measure can now "be 
explained by the need to provide origin information to consumers".
492  
5.1.2.3.2.1  Whether the Panel erred by failing to take into account that the exemptions 
under the amended COOL measure apply equally to meat derived from imported and domestic livestock 
5.100.  The United States claims that, in concluding that the exemptions under the amended COOL 
measure support a conclusion that the detrimental impact of that measure on imported livestock reflects discrimination, the Panel erred by failing to take into account that these exemptions apply equally to meat derived from imported and domestic  livestock and are, therefore, even handed in 
their design and application. 
5.101.  The United States asserts that it is uncontested that neither the design, nor the operation, 
of the exemptions disadvantage Canadian and Me xican livestock exports. In this regard, these 
exemptions are "wholly different" from the exemptions under the measures at issue in US – Clove 
Cigarettes and EC – Seal Products .
493 The United States explains that, in US – Clove Cigarettes , 
the Appellate Body found that the exemption of  menthol cigarettes from the ban on flavoured 
cigarettes was not even handed because producers of menthol cigarettes – mainly US producers – 
could take advantage of this exemption notwithsta nding the fact that menthol cigarettes presented 
a risk similar to that pres ented by the banned products.494 The United States adds that, similarly, 
the panel in EC – Seal Products  found that the indigenous community exemption was not even 
handed in the light of the fact that, while seal products from Greenland could benefit from that 
exemption, seal products from Canada could no t, even though the hunts from which these seal 
products derived "greatly approximated one another".495 According to the United States, the same 
dynamic does not arise in the case of the ex emptions under the amended COOL measure. The 
United States submits that, by failing to take this into account, the Panel erred in finding that the exemptions under the amended COOL measure suppo rt a conclusion that the detrimental impact 
of that measure on imported livestock reflects discrimination in violation of Article 2.1 of the 
TBT Agreement.  
5.102.  Canada responds that the even-handednes s of the exemptions, in and of themselves, was 
not at issue before the Panel. Instead, the ex emptions constitute a component of the overall 
architecture of the amended COOL measure that reveals that this measure is not designed and 
applied in an even-handed manner, and causes ar bitrary and unjustifiable discrimination against 
imported livestock.
496  
5.103.  For its part, Mexico, like Canada, contends that the even-handedness of the exemptions 
under the amended COOL measure was not at issue before the Panel because they are not regulatory distinctions that account for the detrimental impact on imported livestock. Accordingly, 
                                               
492 United States' appellant's submission, para. 187 (quoting Appellate Body Reports, US – COOL , 
para. 349). 
493 United States' appellant's submission, para. 208. 
494 United States' appellant's submission, para. 208 (referring to Appellate Body Report, US – Clove 
Cigarettes,  para. 225). 
495 United States' appellant's submission, para. 208 (referring to Panel Reports, EC – Seal Products , 
para. 7.317). 
496 Canada's appellee's submission, para. 68. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the question of whether the exemptions under  the amended COOL measure are designed or 
applied in an even-handed manner is entirely irrelevant to the pertinent legal issue, i.e. whether the relevant regulatory distinctions that account for the detrimental impact on imported livestock are designed or applied in an even-handed manner. Responding further to the United States' 
characterization of the exemptions as "even handed", Mexico submits that the fact that certain 
US entities may enjoy cost savings as a result of the exemptions has no bearing on the fact that these exemptions, as a central element of the ov erall design and architecture of the amended 
COOL measure, contribute to the informational "disconnect" between, on the one hand, the origin 
information tracked and transmitted by producers of livestock and, on the other hand, the origin information conveyed to consumers through the mandatory labels.
497  
5.104.  In our analysis above, we have considered that other elements of a measure, apart from 
the regulatory distinctions causing detrimental impact, may be relevant for assessing whether 
these regulatory distinctions are designed and applied in an even-handed manner and are, thus, "legitimate" for the purposes of Article 2.1 of the TBT Agreement. In particular, we have 
considered that such other elements are relevant for that assessment to the extent that they are 
probative of whether the detrimental impact on like imported products stems exclusively from legitimate regulatory distinctions.
498 
5.105.  It follows, in our view, that the Panel was not required to assess the even-handedness of 
the exemptions under the amended COOL measure because these exemptions are not relevant regulatory distinctions under that measure. Inst ead, the exemptions form  part of the overall 
architecture of the amended COOL measure that the Panel scrutinized in order to assess whether 
the relevant regulatory distinctions at issue – i. e. the distinctions between the three production 
steps, as well as the mandatory labels to be affi xed to muscle cuts of beef  and pork – are designed 
and applied in an even-handed manner. Thus, wh ether the exemptions under the amended COOL 
measure are, in and of themselves , designed and applied in an even-handed manner is not 
relevant for the inquiry under Article 2.1. The qu estion is not whether the exemptions are even 
handed in the sense that they exclude from the scope of the COOL requirements both domestic 
and imported meat products. Instead, the questi on is whether the exemptions, as part of the 
overall architecture of the amended COOL measure, demonstrate that the relevant regulatory distinctions are not designed and applied in an even-handed manner.  
5.106.  The Panel ultimately found that the exem ptions, as an integral part of "the overall 
architecture" of the amended COOL measure, were "of central importance" to its overall analysis 
under Article 2.1
499 because between 57.7% and 66.7% of be ef consumed in the United States, 
and between 83.5% and 84.1% of pork muscle cuts , will convey no consumer information on 
origin despite imposing an upstream recordkeepin g burden on producers and processors that has a 
detrimental impact on competitive opportunities for imported livestock.500 For this reason, the 
exemptions prescribed by the amended COOL measure are probative of whether the detrimental 
impact of that measure on imported livestock stems exclusively from legitimate regulatory 
distinctions. 
5.107.  Finally, we consider that the United States' reliance on the exemptions prescribed by the 
measures at issue in EC – Seal Products  and US – Clove Cigarettes  is unavailing. By contrast with 
the exemptions under the amended COOL measure, the exemptions prescribed by the measures at 
issue in EC – Seal Products  and US – Clove Cigarettes  were, in fact, the regulatory distinctions 
causing detrimental impact on the imported prod ucts at issue. As such, it was necessary to 
examine, for the purposes of Article 2.1, whethe r these exemptions were designed and applied in 
an even-handed manner such that they could be co nsidered legitimate for the purposes of that 
provision.  
5.108.  For the reasons expressed above, we find that the Panel did not err, in 
paragraphs 7.273-7.276 of the Panel Reports, by not attributing significance to the fact that the 
exemptions under the amended COOL measure apply equally to meat derived from imported and domestic livestock.  
                                               
497 Mexico's appellee's submission, para. 69 (referring to Panel Reports, para. 7.272). 
498 See supra , para. 5.93. 
499 Panel Reports, para. 7.273 (quoting Appellate Body Reports, US – COOL , para. 348). 
500 Panel Reports, para. 7.273. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.1.2.3.2.2  Whether the Panel erred by failing to take into account that cost 
considerations provide a non-discriminato ry basis for the exemptions under the 
amended COOL measure 
5.109.  The United States claims that, in concluding that the exemptions under the amended COOL 
measure support a conclusion that the detrimental impact of that measure on imported livestock 
reflects discrimination, the Panel erred by failing to take into account the "legitimate desire of Members to adjust the scope of their technical regulations" to take account of cost 
considerations.
501 
5.110.  According to the United States, the exemptions under the amended COOL measure 
constitute "important mechanisms that policy makers use to control costs of measures in pursuit of legitimate government objectives".
502 The United States explains that , while its intent is to provide 
consumers with accurate and meaningful information on the origin of the meat that they purchase, 
it does not intend to do so "at any cost".503 Accordingly, even if such information was, and 
remains, desired by consumers, the United States, ultimately, set a slightly lower level of 
fulfilment by including exemptions in the amende d COOL measure, as is the prerogative of any 
regulator.504 The United States further argues that th e cost savings provided by the exemptions 
under the amended COOL measure are real and, in this regard, the United States asserts that it is 
uncontested that removing these exemptions would increase recordkeeping, verification, and 
segregation costs associated with the amended COOL measure.505 The United States highlights 
that it is not the only Member seeking to balance, on the one hand, the provision of information to consumers with, on the other hand, the costs of providing such information. Thus, for the 
United States, the exemptions under the amended COOL measure reflect sound public policy, 
rather than arbitrary discrimination.
506 
5.111.  Canada submits that the Panel correctly found that, while cost considerations "are not 
per se  prohibited", they do not constitute a "supervening justification for discriminatory 
measures".507 In addition, Canada contends that the cost savings achieved by exempt US entities 
do not detract from the fact that the amende d COOL measure arbitrarily and unjustifiably 
discriminates against Canadian livestock. Thus, for Canada, the position of the United States that 
the cost savings achieved by the exemptions ju stify the discriminatory effects of the amended 
COOL measure is "untenable".508  
5.112.  Mexico contends that any cost savings achieved by the exemptions from the COOL 
requirements cannot excuse, justify, counterbalanc e, or otherwise legitimize the discriminatory 
effects of the amended COOL measure.509 These cost savings enjoyed by US entities that remain 
exempt from the COOL requirements do not, in Mexico's view, alter the reality that the exemptions 
remove a significant proportion of products from  the scope of the requirements of the amended 
COOL measure, thereby preventing the origin in formation that is collected by producers of 
livestock from being conveyed to consumers. Mexico highlights that it was for this reason that the 
Panel considered the exemptions as evidence that  the recordkeeping burden giving rise to the 
detrimental impact on imported livestock cannot be  explained by the need to convey to consumers 
information regarding the countries where livestock were born, raised, and slaughtered.510 Mexico 
submits that the cost savings achieved by the exemptions do not affect this conclusion.  
5.113.  Turning to our analysis, we recall that, in US – Clove Cigarettes , the Appellate Body 
considered that "[n]othing in Article 2.1 prevents  a Member from seeking to minimize the potential 
costs arising from technical regulations, provided that the technical regulation at issue does not 
                                               
501 United States' appellant's submission, para. 187 (quoting Appellate Body Reports, US – COOL , 
para. 349). 
502 United States' appellant's submission, para. 211. (fn omitted) 
503 United States' appellant's submission, para. 212. (emphasis omitted) 
504 United States' appellant's submission, para. 212. 
505 United States' appellant's submission, para. 213. 
506 United States' appellant's submission, paras. 214-215. 
507 Canada's appellee's submission, para. 73 (quoting Panel Reports, para. 7.275). 
508 Canada's appellee's submission, para. 76. 
509 Mexico's appellee's submission, para. 72. 
510 Mexico's appellee's submission, para. 70. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 overtly or covertly discriminate against imports."511 Thus, Members may seek to minimize the 
costs entailed by technical regulations insofar as such technical regulations do not discriminate against like imported products in violation of Article 2.1. 
5.114.  We note that the Panel explicitly engaged with the United States' defence of the 
exemptions on the basis of the cost savings that they allegedly entail. In this regard, the Panel 
recalled the guidance of the Appellate Body in US – Clove Cigarettes  and considered that cost 
considerations do not provide "supervening justification for discriminatory measures".
512 On that 
basis, the Panel did not consider that "such practical considerations justify the discriminatory 
nature of the amended COOL measure or call into  question the Appellate Body's concern with the 
exemptions in the original dispute."513  
5.115.  As we see it, the Panel's analysis, as set forth above, comports with the Appellate Body's 
guidance in US – Clove Cigarettes . We see no error in the Panel's finding that cost considerations 
do not constitute a "supervening justification for discriminatory measures".514 In particular, we do 
not consider that the cost savings enjoyed by US entities that are exempt from the COOL 
requirements mitigate the Panel's finding that, as  a result of the exemptions, between 57.7% and 
66.7% of beef consumed in the United States , and between 83.5% and 84.1% of pork muscle 
cuts, will convey no consumer information on origin, despite imposing recordkeeping burdens 
upstream that have a detrimental impact on competitive opportunities for imported livestock.515  
5.116.  In the light of the above, we find that the Panel did not err, in paragraph 7.275 of the 
Panel Reports, in considering, with respect to the cost considerations that allegedly justify the 
existence of the exemptions, that cost considerations do not constitute a supervening justification 
for discriminatory measures.  
5.1.2.3.2.3  Whether the Panel erred by fa iling to take into account the enhanced 
accuracy of the revised labels under the amended COOL measure  
5.117.  The United States claims that, in determin ing that the exemptions constitute evidence that 
the detrimental impact of the amended COOL measure on imported livestock reflects discrimination, the Panel erred by failing to take into account that, in the light of the "enhanced 
accuracy" of the labels prescribed by the am ended COOL measure, the recordkeeping burden 
entailed by that measure can now be explained by the need to provide origin information to consumers.
516 
5.118.  According to the United States, the scope  of the exemptions under the original COOL 
measure further corroborated a problem with that measure, namely, that adequate information 
was not provided on Labels B and C to justify the recordkeeping required of producers and processors of livestock.
517 The United States asserts that the amended COOL measure has 
corrected this "underlying problem" so that more detailed and accurate information is provided to 
consumers on the labels.518 The United States further contends that, although the exemptions 
have not been eliminated, this alone cannot be de terminative of whether the detrimental impact of 
the amended COOL measure on imported livestock stems exclusively from legitimate regulatory 
distinctions. In this regard, the United States asserts that the scope of the exemptions "no longer exacerbate any underlying problem since the underlying problem no longer exists".
519 In the 
United States' view, the Panel erred by failing to examine whether, in the light of the more 
detailed and accurate information provided on labels to consumers, the recordkeeping burden 
imposed on producers of livestock can now be expl ained by the need to provide origin information 
to consumers, notwithstanding the continued existence of the exemptions.  
                                               
511 Panel Reports, para. 7.275 (quoting Appellate Body Report, US – Clove Cigarettes , fn 431 to 
para. 221). 
512 Panel Reports, para. 7.275. 
513 Panel Reports, para. 7.276. 
514 Panel Reports, para. 7.275. 
515 Panel Reports, para. 7.273. 
516 United States' appellant's submission, para. 187. 
517 United States' appellant's submission, para. 218. 
518 United States' appellant's submission, para. 219. 
519 United States' appellant's submission, para. 220. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.119.  Canada responds that the increased reco rdkeeping burden entailed by the amended COOL 
measure, and the fact that the greatest incremen tal improvement in origin information achieved 
by the 2013 Final Rule is for Labels B and C in a market dominated by Label A, reveal how marginal the contribution of the amended COOL measure is to the rectification of the informational 
"disconnect" identified by the Appellate Body in the original disputes. Canada, thus, submits that 
the United States' characterization of the Panel's assessment of the exemptions in its analysis of 
the legitimacy of regulatory distinctions under Article 2.1 does not withstand scrutiny.
520  
5.120.  For its part, Mexico considers that the United States' arguments lack merit because, "even 
if more detailed and accurate origin information is now provided to consumers" of meat sold in retail establishments, there is still no origin information at all provided to consumers with respect to the majority of beef products consumed in the United States. Thus, in Mexico's view, there 
continues to be a significant "disconnect" between, on the one hand, the information collected by 
producers and processors of livestock and, on th e other hand, the information ultimately conveyed 
to consumers of meat products in the US market.
521 
5.121.  Turning to our analysis, we do not agree with the United States that the Panel failed to 
examine whether the nature and scope of the exem ptions establish a "disconnect" between, on the 
one hand, the amount of information collected by upstream producers and, on the other hand, the 
amount of information conveyed to consumers that is so disproportionate as to support the 
conclusion that the detrimental impact of the amended COOL measure reflects discrimination in 
violation of Article 2.1.522 We have found above that several discrete findings made by the Panel 
support the conclusion that the recordkeeping and verification requirements of the amended COOL 
measure impose a disproportionate burden on producers and processors of livestock that cannot 
be explained by the need to provide origin information to consumers.523 In particular, as regards 
the exemptions from the scope of the COOL requ irements, the Panel found that, as an integral 
part of the "overall architecture" of the amen ded COOL measure, these exemptions were "of 
central importance" to its overall analysis under Article 2.1524 because between 57.7% and 66.7% 
of beef consumed in the United States, and be tween 83.5% and 84.1% of pork muscle cuts, will 
convey no consumer information on origin despit e imposing recordkeeping burdens upstream that 
detrimentally impact competitive opportunities for foreign livestock.525 We see no error in the 
Panel's approach. 
5.122.  Accordingly, we disagree with the United States that the Panel failed to take into account 
the "enhanced accuracy" of the labels prescribed  by the amended COOL measure in determining 
that the exemptions support a conclusion that the detrimental impact of that measure on imported 
livestock does not stem exclusively from legitimate  regulatory distinctions. Thus, we find that the 
Panel did not err, in paragraph 7.277 of the Pane l Reports, in considering that the exemptions 
prescribed by the amended COOL measure support a conclusion that the detrimental impact of 
that measure on imported livestock does not stem exclusively from legitimate regulatory 
distinctions.  
5.1.2.3.3  Whether the Panel erred by fa iling to evaluate the operation of the 
exemptions under the amended COOL measure in the US market 
5.123.  We turn now to the third and final ground of the United States' appeal of the Panel's 
findings concerning the exemptions under the amended COOL measure in its assessment of the 
consistency of that measure with Article 2.1 of  the TBT Agreement. The United States submits 
that, in concluding that the exemptions under the amended COOL measure support a conclusion 
that the detrimental impact of that measure reflects discrimination, the Panel erred by failing to 
evaluate the operation of the exemptions in the US market.526  
                                               
520 Canada's appellee's submission, para. 79. 
521 Mexico's appellee's submission, para. 76. 
522 United States' appellant's submission, para. 216. 
523 See supra , paras. 5.46-5.47. 
524 Panel Reports, para. 7.273 (quoting Appellate Body Reports, US – COOL , para. 348). 
525 Panel Reports, para. 7.273. 
526 United States' appellant's submission, para. 188. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.124.  The United States asserts that the Panel drew a conclusion that distinct distribution 
channels for the sale of meat products to exempt entities do not exist simply by repeating a statement of the original panel that "the ultimate disposition of a meat product is often not known at any particular stage of the production chain"
527, and a statement by the Appellate Body that 
"information regarding the origin of all livestock will have to be identified, tracked, and transmitted 
through the chain of production by upstream prod ucers … even though 'a considerable proportion' 
of the beef and pork derived from that livest ock will ultimately be exempt from the COOL 
requirements and therefore ca rry no COOL label at all."528 The United States contends that 
whether information regarding the origin of all livestock will have to be identified, tracked, and transmitted through the chain of production by upst ream producers is critical to the weight that 
the Panel could have placed on the exemptions for the purpose of its analysis of whether the 
detrimental impact of the amended COOL measure reflects discrimination. Thus, the Panel, in the 
United States' view, was required to consider whether the statement that it relied on is currently supported by the operation of the US market, or whether information regarding the origin of less 
than all livestock is being identified, tracked, and transmitted by producers and processors of 
livestock. The United States asserts that the Panel failed to undertake such an analysis and, accordingly, the Panel erred because it had no ba sis to conclude that all US slaughterhouses, 
wholesalers, and exempt retailers take on reco rdkeeping costs that they are not obligated to 
assume.
529 
5.125.  The United States notes that, although it is not aware of the extent of use of distinct 
distribution channels by US economic operators, neither Canada nor Mexico presented any 
evidence that slaughterhouses, wholesal ers, and exempt establishments are not  making use of the 
exemptions to establish lower cost channels of distribution.530 In the United States' view, the 
limited evidence on the record relating to this issu e suggests that distinct distribution channels for 
sales to exempt establishments do exist. Thus, submits the United States, the Panel's conclusion is 
unsupportable.531 
5.126.  Canada submits that the United States' challenge to the Panel's conclusion essentially 
concerns the merits of the adopted findings of the original panel and the Appellate Body in the 
original disputes to the effect that the ultimate disposition of a meat product is often not known at any particular stage of distribution. These findings, contends Canada, are factual findings and, to the extent that the United States seeks to challeng e them, this challenge is outside of the scope of 
this appeal in the absence of an expl icit claim under Article 11 of the DSU.
532 Canada points out 
that it relied on the findings of the panel and the Appellate Body in the original disputes concerning the operation of the exemptions in the US market in making its prima facie  case under Article 2.1 
of the TBT Agreement. According to Canada, the Panel correctly relied on those findings in its 
assessment of the exemptions.
533 Canada highlights that the Appellate Body has considered that 
"doubts could arise about the objective nature of an Article 21.5 panel's assessment if, on a 
specific issue, that panel were to deviate from the reasoning in the original panel report in the 
absence of any change in the underlying evidence in the record."534 Thus, having not been 
presented with evidence that would affect the findings of the original panel concerning the operation of the exemptions in the US market, the compliance Panel was correct in not deviating 
from the reasoning of the original panel on this issue.  
5.127.  Canada submits further that the United St ates' criticism of Canada for failing to present 
evidence that distinct distribution channels do not exist for the sale of meat to entities that are 
exempt from the COOL requirements is inconsistent  with basic principles concerning the allocation 
                                               
527 United States' appellant's submission, para. 233 (quo ting Panel Reports, para. 7.272, in turn quoting 
United States' response to original  panel question No. 93, para. 16). 
528 United States' appellant's submission, para. 233 (quo ting Panel Reports, para. 7.272, in turn quoting 
Appellate Body Reports, US – COOL , para. 344 (emphasis original; fn omitted)). 
529 United States' appellant's submission, para. 233. 
530 United States' appellant's submission, para. 244. 
531 United States' appellant's submission, para. 246. 
532 Canada's appellee's subm ission, paras. 33 and 36. 
533 Canada's appellee's submission, para. 34 (referring to  Canada's first written submission to the Panel, 
para. 71; and second written subm ission to the Panel, para. 33). 
534 Canada's appellee's submission, para . 87 (quoting Appellate Body Report, US – Upland Cotton 
(Article 21.5 – Brazil) , para. 386, in turn quoting Appellate Body Report, US – Softwood Lumber VI 
(Article 21.5 – Canada) , para. 103). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 of the burden of proof in WTO dispute settlement proceedings.535 A party asserting a fact must 
provide proof thereof. Thus, Canada did not have a burden to discharge with respect to an adopted finding made by the original panel that the United States did not take issue with before the compliance Panel. Instead, had the United States claimed before the compliance Panel that distinct 
distribution channels currently exist for the sale of  meat to entities that are exempt from the COOL 
requirements, the United States would have bo rne the burden of proving this assertion.  
5.128.  For Mexico, the United States is attemp ting to shift its own burden of proof to the 
complainants or the Panel.
536 Noting the United States' argument that the Panel committed legal 
error because it did not evaluate evidence and make sufficient findings in relation to the US market, Mexico points out that the United States did not present any arguments or evidence to the compliance Panel that called into question the findings of the panel and the Appellate Body in 
the original disputes concerning the effect of th e exemptions in the US market. Mexico highlights 
that it did not bear a burden to refute an argument that the United States did not raise.
537  
5.129.  Turning to our analysis of whether the Panel erred by failing to evaluate the operation of 
the exemptions in the US market, we recall that the Panel, in reaching its conclusion, noted that it 
had "no evidence" before it that called into question the original panel's finding that "the ultimate disposition of a meat product is often not known at any particular stage of the production 
chain."
538 The United States asserts that it was for Canada and Mexico to adduce evidence 
sufficient to establish whether, and to what extent, the ultimate disposition of a meat product is known at any particular stage of the production chain.
539 In our view, having not been presented 
with evidence that would affect the findings of the original panel concerning the operation of the 
exemptions in the US market, it was appropriate for the Panel to have relied on those findings. 
5.130.  In the light of the foregoing considerat ions, we find that the Panel did not err, in 
paragraph 7.272 of the Panel Reports, by failing to evaluate the operation of the exemptions 
prescribed by the amended COOL measure in the US market.  
5.1.3  Claims of Canada and Mexico under Article 2.1 of the TBT Agreement 
5.131.  We turn now to address the claims raised by Canada and Mexico in their other appeals 
with regard to the Panel's findings under Article 2.1 of the TBT Agreement. Canada and Mexico do 
not appeal the Panel's conclusion that the amended COOL measure is inconsistent with Article 2.1. However, they challenge the Panel's assessmen t of certain elements of the amended COOL 
measure in its analysis of whether the detrimental impact of that measure on imported livestock 
stems exclusively from legitimate regulatory distinctions. 
5.132.  For Canada, the Panel failed to assess appropriately the relevance of Labels D and E, as 
well as the prohibition of a trace-back system und er the amended COOL measure, in its analysis of 
whether the detrimental impact of that measure on imported livestock stems exclusively from 
legitimate regulatory distinctions.
540 In Canada's view, Labels D and E, as well as the prohibition of 
a trace-back system, demonstrate that the detrim ental impact of the amended COOL measure on 
imported livestock does not stem exclusively from legitimate regulatory distinctions but, instead, 
reflects arbitrary and unjustifiable discrimination in violation of Article 2.1.  
5.133.  Mexico alleges that the Panel erred in its assessment of the relevance of Label E for the 
analysis of whether the detrimental impact of the amended COOL measure stems exclusively from 
legitimate regulatory distinctions.541 In Mexico's view, the labelling rules for ground beef – to 
which Label E must be affixed – provide further evidence that the amended COOL measure is not designed and applied in an even-handed manner, and that its detrimental impact on imported 
livestock reflects arbitrary discrimination.
542 Mexico does not allege that the Panel erred in its 
                                               
535 Canada's appellee's submission, para. 91. 
536 Mexico's appellee's submission, para. 78. 
537 Mexico's appellee's submission, para. 79. 
538 Panel Reports, para. 7.272 (quoting Appellate Body Reports, US – COOL , para. 344, in turn referring 
to Original Panel Reports, US – COOL , para. 7.417). 
539 United States' appellant's submission, fn 284 to para. 243. 
540 Canada's other appellant's submission, para. 156. 
541 Mexico's other appellant's submission, para. 186. 
542 Mexico's other appellant's submission, para. 197. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 assessment of the relevance of Label D or of th e prohibition of a trace-back system under the 
amended COOL measure. 
5.134.  We begin our analysis of the claims put fo rward by Canada and Mexico under Article 2.1 of 
the TBT Agreement with Canada's claim concerning the Panel's treatment of Label D. Next, we 
consider the claims of Canada and Mexico as they relate to the Panel's treatment of Label E. 
Finally, we consider Canada's claim concerning the Panel's treatment of the prohibition of a trace-back system under the amended COOL measure. 
5.1.3.1  Whether the Panel erred in its asse ssment of Label D under Article 2.1 of the 
TBT Agreement 
5.135.  Canada submits that Label D, as a part of the amended COOL measure's design, 
architecture, and revealing structure, demonstrates that the detrimental impact of that measure 
on imported livestock reflects arbitrary and unjustifiable discrimination prohibited by Article 2.1 of 
the TBT Agreement. Accordingly, Canada submits that the Panel failed to assess appropriately the 
relevance of Label D for the analysis of whethe r the detrimental impact of the amended COOL 
measure stems exclusively from legitimate regulatory distinctions.
543  
5.136.  At the outset, we recall that, unlike Labels A, B, and C, which apply to muscle cuts of meat 
derived from US-slaughtered livestock, Label D applies to muscle cuts of meat derived from 
foreign-slaughtered livestock. Thus, under the amended COOL measure, Label D is to be affixed to 
muscle cuts of meat that are imported into the Un ited States. We further recall that the amended 
COOL measure introduced a change to the coverage of Label D. In this regard, under the original COOL measure, Label D applied to "[i]mported covered commodities for which origin has already 
been established as defined by this law (e.g., born, raised, and slaughtered or produced) and for 
which no production steps have occurred in the United States ".
544 By contrast, the 2013 Final Rule 
refers to "[m]uscle cut covered commodities derived from an animal that was slaughtered in 
another country …  including muscle cut covered commodities derived from an animal that was 
born and/or raised in the United States  and slaughtered in another country".545  
5.137.  Under both the original and the amended COOL measures, origin, for the purposes of 
Category D muscle cuts of meat, is designated according to the definition used for customs 
purposes546 – i.e. based on the rules of substantial transformation. In practice, this means that 
Label D indicates "Product of Country X", with "X" representing the foreign country where the livestock from which the muscle cuts derive were slaughtered.
547 By contrast, Labels A, B, and C 
indicate production step information concerning th e place(s) of birth, raising, and slaughter for 
US-slaughtered livestock based on the records collected in accordance with the recordkeeping and verification requirements under the amended COOL measure. While, in principle, Label D indicates 
only the place of slaughter on muscle cuts deriving from foreign-slaughtered livestock
548, the 2013 
Final Rule introduced a voluntary option to "include more specific location information related to production steps (i.e., born, raised, and slaughtered) provided records to substantiate the claims 
are maintained".
549 
5.138.  In its overall assessment of whether the detrimental impact of the amended COOL 
measure stems exclusively from legitimate regulatory distinctions, the Panel considered the contention of the complainants that the requirements for Label D weigh against the "even-
handedness" of the amended COOL measure. Noting  that the Appellate Body had observed, in the 
original disputes, that Label D, under the original COOL measure, did not convey information on the place of an animal's birth or raising
550, the Panel observed that this has not been modified 
                                               
543 Panel Reports, para. 7.279. 
544 Panel Reports, para. 7.128 (quoting 2009 Final Rule (AMS), Section 65.300(f)). (emphasis added by 
the Panel) 
545 Panel Reports, para. 7.128 (quoting 2013 Final Rule, Section 65.300(f)(2)). (emphasis added by the 
Panel)  
546 Panel Reports, para. 7.15 (referring to 2009 Final Rule (AMS), Section 65.300(f); and 
2013 Final Rule, Section 65.300(f)(2)). 
547 Panel Reports, para. 7.15 (referri ng to Original Panel Reports, US – COOL , para. 7.674; and 
Appellate Body Reports, US – COOL , para. 241). 
548 See Panel Reports, para. 7.132 and fn 317 thereto. 
549 Panel Reports, para. 7.19 (quoting 2013 Final Rule, Section 65.300(f)(2)).  
550 Panel Reports, para. 7.279 (referring to Appellate Body Reports, US – COOL , para. 343). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 under the amended COOL measure. The Panel considered, however, that the complainants had not 
provided evidence of Category D animals that we re not born and raised in the country in which 
they were slaughtered, and that there was "nothi ng before [it] to suggest" that muscle cuts 
bearing Label D stating "Product of Country X" would not derive from animals that were born, 
raised, and slaughtered in that country. On this basis, the Panel considered that, although the 
omission of production step information would result in the provision of less detailed information on Label D, this was not apt to mislead consumers of Category D muscle cuts "in the same 
fashion" as would the omission of countries of raising on Labels B and C. The Panel further 
considered the relatively small portion of Category D muscle cuts in the US market, and the absence of a claim that Label D creates any detrimental impact. Ultimately, the Panel was not convinced that Label D rules of substantial transfor mation are compelling evidence of arbitrary or 
unjustifiable discrimination.
551 
5.139.  On appeal, Canada submits that the Pa nel's reliance on the small market share of 
Category D muscle cuts in the United States was misplaced. According to Canada, statistics 
submitted to the Panel demonstrate that Cana da exports between 500,000 and 860,000 pounds of 
beef and between 630,000 and 710,000  pounds of pork to the United States on an annual basis.552 
Moreover, when feed is cheaper in Canada than in the United States, economic incentives exist to 
import US animals into Canada that can then be used to produce muscle cuts that are then 
available for export to the United States.  
5.140.  Canada further contends that the Panel improperly faulted Canada for failing to provide 
evidence of Category D animals that were not born and raised in the country in which they were 
slaughtered. Canada notes that, as the Panel observ ed, Canada does not track the life histories of 
animals. However, in the light of the export volumes of meat from Canada to the United States, and the "sometimes significant imports of livestock", Canada submits that it is "reasonable" to 
infer that at least some Category D meat from Canada is obtained from animals not born and 
raised in Canada. In any event, Canada submits th at, by requiring positive evidence of Category D 
animals that were not born and raised in the country in which they were slaughtered, the Panel 
placed undue importance on "actual trade effects" for the purposes of its analysis under 
Article 2.1, "despite having previously acknowledged that 'there is no need to verify actual trade effects to dispose of claims under Article 2.1'."
553  
5.141.  Canada also takes issue with the Panel's dismissal of its arguments concerning Label D on 
the ground that Canada had not challenged Label D as causing a detrimental impact on Canadian 
livestock. According to Canada, whether an aspect of a challenged technical regulation is responsible for the detrimental impact on imported products is not determinative of its relevance 
for the analysis of the legitimacy of regulatory distinctions under Article 2.1. Instead, the "key 
determinant" is whether an element of the challenged technical regulation is probative of the existence of arbitrary or unjustifiable discr imination or an absence of even-handedness.
554 
5.142.  The United States responds that, because the question posed in the second step of the 
analysis under Article 2.1 is whether the detrimental impact on imported products reflects discrimination, only those regulatory distinctions that account for such detrimental impact can answer that question. The United States highlights , in this regard, that Canada has neither argued, 
nor proved, that there is a detrimental impact on Category D muscle cuts produced in Canada and 
exported to the United States.
555 The United States further submits that Canada has failed to 
prove that Label D contributes to any "origin-ba sed discrepancy" between the accuracy of Label A 
as compared to the accuracy of the other la bels prescribed by the amended COOL measure.556 Nor 
has Canada, in the United States' view, proven that Label D is otherwise "arbitrary".  
5.143.  According to the United States, while Canada apparently considers Label D to be relevant 
for the analysis because it allegedly "demonstrates the dissonance" between, on the one hand, the 
United States' objective of ensuring that label information accurately reflects the origin of muscle 
                                               
551 Panel Reports, para. 7.279. 
552 Canada's other appellant's submission, para. 160. 
553 Canada's other appellant's submission, para. 162 (quoting Panel Reports, para. 7.183). 
554 Canada's other appellant's submission, para . 162 (referring to Appellate Body Reports, US – COOL , 
para. 272). 
555 United States' appellee's submission, para. 252. 
556 United States' appellee's submission, para. 253 (quoting Canada's other appellant's submission, 
para. 159). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 cuts and, on the other hand, the amended COOL measure's operation "in practice", Canada is 
unable to prove that Category D animals were not born and raised in the same foreign country in which they were slaughtered.
557 Thus, for the United States, the Panel was correct in determining 
that there is no reason to conclude that Category D muscle cuts, bearing the label "Product of 
Country X", will not be from animals "that are entirely  a product of that country".558 The 
United States further disagrees with Canada's argument that the Panel erred by faulting Canada for failing to provide evidence of Category D anim als that were not born and raised in the country 
in which they were slaughtered. 
5.144.  The United States argues further that Canada's contention that a "dissonance" exists 
between the objective of the amended COOL meas ure and what that measure actually achieves 
reveals a misunderstanding of the analyses under Article 2.1 and Article 2.2 of the TBT Agreement. 
According to the United States, there is no basis for the proposition that a regulatory distinction is 
not "even handed", for the purposes of Article 2.1, merely because it does not "fulfil" the measure's objective in "every way possible".
559  
5.145.  With respect to Canada's criticism of th e Panel for relying on the small market share of 
Category D muscle cuts as a basis for concluding that Label D does not support a conclusion that the detrimental impact of the amended COOL meas ure reflects discrimination, the United States 
responds that Canada has not provided a reason as to why the Panel's reliance on this factor was 
"misplaced".
560 In the United States' view, whether, and to what extent, a label is used is a 
relevant factor in the inquiry under Article 2.1 in these disputes. The United States highlights, in this regard, that the original panel concluded that muscle cuts bearing Label D constitute 
somewhere between 0% and 0.3% of the US market.  
5.146.  At the outset, we note that Canada has framed its challenge to the Panel's consideration of 
Label D as a failure of the Panel to assess appropriately the relevance of Label D for the analysis of 
whether the detrimental impact of the amended C OOL measure stems exclusively from legitimate 
regulatory distinctions or, instead, reflects arbitrary or unjustifiable discrimination in violation of Article 2.1 of the TBT Agreement.
561 We recall, however, that the Panel considered that, "[t]o the 
extent that Label D concerns the 'overall archit ecture' of the amended COOL measure, and hence 
is relevant to the analysis of legitimate regulatory distinctions", it would consider Label D as it relates to the relevant distinctions that it had identified "for other muscle cut labels".
562 Thus, the 
Panel found that the requirements for Label D were, in fact, relevant for the analysis of whether 
the detrimental impact of the amended COOL measure stems exclusively from legitimate 
regulatory distinctions to the extent that Label D forms part of the overall architecture of that 
measure. The Panel then considered the requirements  for Label D in its overall analysis of whether 
the detrimental impact of the amended COOL me asure on imported livestock stems exclusively 
from legitimate regulatory distinctions. In conducting this analysis, the Panel stated that it was not convinced that Label D rules of substantial transfor mation are compelling evidence of arbitrary or 
unjustifiable discrimination. Canada takes issue with this statement of the Panel. 
5.147.  According to Canada, the Panel failed to recognize that the requirements for Label D, 
together with the informational shortcomings iden tified by the Panel with respect to Labels B 
and C, contribute to a labelling regime in which the only information that can be relied on as 
invariably accurate is the information conveyed on Label A – i.e. origin information in respect of 
livestock that were born, raised, and slaughtered exclusively in the United States.
563 Thus, 
contends Canada, the purported intention of the United States "to ensure [that] label information 
accurately reflects the origin of muscle cut covered commodities" is belied by the fact that a 
consumer, who is fully informed of the meaning of different categories of labels under the amended COOL measure, can only be assured of  receiving complete and accurate information 
                                               
557 United States' appellee's submission, para. 256 (quoting Canada's other appellant's submission, 
para. 163). 
558 United States' appellee's submission, para. 253 (quoting Panel Reports, para. 7.279). (emphasis 
added by the United States) 
559 United States' appellee's submission, para. 257. 
560 United States' appellee's submission, para. 254 (quoting Canada's other appellant's submission, 
para. 160). 
561 Canada's other appellant's submission, paras. 156 and 163. 
562 Panel Reports, para. 7.204. 
563 Canada's other appellant's submission, para. 159. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 when purchasing Category A muscle cuts.564 This discrepancy, according to Canada, exposes the 
arbitrary and unjustifiable character of the discrimination against Canadian livestock. 
5.148.  We recall that, in the original disputes, th e Appellate Body considered as being of central 
importance to its overall analysis under Article 2. 1 the lack of correspondence between, on the one 
hand, the recordkeeping and verification requiremen ts of the original COOL measure and, on the 
other hand, the limited consumer information conveyed through the labelling requirements of that measure and the exemptions therefrom.
565 More specifically, the Appellate Body found that the 
level of information conveyed to consumers was far less detailed and accurate than the 
information required to be tracked and transmitted by upstream producers and processors of livestock.
566 This was central to the Appellate Body's analysis under Article 2.1 because, as the 
Appellate Body explained, it was those same re cordkeeping and verification requirements that 
necessitated segregation and, thus, created an incentive for US producers to process exclusively 
domestic livestock, and a disincentive to process imported livestock.567 
5.149.  To us, the accuracy of the muscle cut labe ls prescribed by the amended COOL measure is 
a relevant factor to the extent that it demonstrates that the recordkeeping and verification 
requirements of that measure impose a disproportionate burden on upstream producers and processors in comparison with the level of information conveyed to consumers through the 
mandatory labelling requirements. This comports with the Appellate Body's analysis in the original 
disputes as outlined above. Thus, the focus of the inquiry under Article 2.1 for the purposes of 
these disputes is not, in itself, the relative a ccuracy of the muscle cut labels prescribed by the 
amended COOL measure. In particular, the releva nt question is not whether Label A fulfils the 
objective of the amended COOL measure to a greater degree than Label D.  
5.150.  In examining Canada's claim as it relates to Label D, we consider it useful to juxtapose the 
requirements for Labels B and C and the exemptions  from the coverage of the COOL requirements 
with the requirements for Label D. In our view, the informational shortcomings of Labels B and C, 
as well as the exemptions from the coverage of  the COOL requirements, are closely connected to 
the source  of the detrimental impact on imported livestock in these disputes, namely, the 
recordkeeping and verification requirements for US-slaughtered livestock that create an incentive 
for US producers to process exclusively domestic livestock, a disincentive to handle imported livestock, and, consequently, a detrimental impact  on such imported livestock. In particular, the 
detailed information required to be tracked and transmitted by upstream producers may not be 
conveyed to consumers as a result of the informat ional shortcomings of Labels B and C with regard 
to the countries where US-slaughtered livestock were raised, and the exemptions from the coverage of the COOL requirements. For this reas on, the detrimental impact of the amended COOL 
measure on imported livestock that is caused by the same recordkeeping and verification 
requirements under the amended COOL measure cannot be explained by the need to provide origin information to consumers. 
5.151.  By contrast, origin, for the purposes of Category D muscle cuts of meat, is based on the 
rules of substantial transformation and, in practice, is a function of where the livestock from which such muscle cuts derive were slaughtered. Accordin gly, it seems to us that the requirements for 
Label D – as compared to the requirements for Labe ls B and C, as well as the exemptions – do not 
have a sufficient nexus with the source of the detrimental impact on the imported products at 
issue in these disputes, namely, the recordkeeping and verification requirements that apply to US-slaughtered livestock and muscle cuts of meat deri ving therefrom. Thus, because the requirements 
for Label D do not have a sufficient nexus with the source of the detrimental impact on the 
imported products at issue in these disputes, we  are not convinced that these requirements are 
                                               
564 Canada's other appellant's submission, para. 159 (quoting 2013 Final Rule, p. 31372). 
565 Appellate Body Reports, US – COOL , para. 348. 
566 Appellate Body Reports, US – COOL , para. 349. 
567 Appellate Body Reports, US – COOL , para. 348. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 probative of whether such detrimental impact stems exclusively from legitimate regulatory 
distinctions.568  
5.152.  Ultimately, the Panel determined that the requirements for Label D did not support a 
conclusion that the detrimental impact of th e amended COOL measure stems exclusively from 
legitimate regulatory distinctions on the cumulative grounds that: (i) the omission of production 
steps on Label D does not seem apt to mislead consumers regarding the origin of Category D muscle cuts "in the same fashion" as would the omission of countries on Labels B and C; (ii) there 
is a relatively small proportion of Category D muscle cuts in the US market; and (iii) no claim was 
made that Label D creates any detrimental impact on imported livestock.
569  
5.153.  As regards the grounds on which the Panel dismissed Canada's claim concerning Label D 
for the purposes of the analysis under Article 2.1, we note Canada's contention that the Panel 
placed too much emphasis on actual trade patterns in requiring positive evidence of Category D 
animals that were not born and raised in the co untry in which they were slaughtered, and in 
expressing concern about the small market share of  Label D muscle cuts in the US market. As we 
have stated in connection with our disposition of the United States' appeal under Article 2.1, that 
provision is concerned with competitive opportunities  for like imported products rather than, more 
narrowly, actual trade patterns or volumes. It is, therefore, unfortunate that the Panel seemed to 
place emphasis on the latter aspect in disposing of the complainants' claims regarding the 
requirements for Label D. In any event, we have  found above that, because the requirements for 
Label D do not have a sufficient nexus with the source of the detrimental impact on the imported products at issue in these disputes, these requirements are not probative of whether such 
detrimental impact stems exclusively from legitimate regulatory distinctions.  
5.154.  Turning to Canada's criticism of the Panel' s reliance on the absence of a claim that Label D 
creates any detrimental impact on imported livesto ck, we do not consider that whether an element 
of a challenged technical regulation is, independently, the cause of the detrimental impact on 
imported products is determinative of its relevance for the analysis of whether such detrimental impact stems exclusively from legitimate regulatory  distinctions. Instead, the relevant question is 
whether that element of the challenged techni cal regulation is probative of whether the 
detrimental impact of that technical regulation on imported products stems exclusively from legitimate regulatory distinctions. As we have found above, because the requirements for Label D 
do not have a sufficient nexus with the source of the detrimental impact on the imported products 
at issue in these disputes, these requirements are not probative of whether such detrimental 
impact stems exclusively from legitimate regulato ry distinctions. We, therefore, do not consider 
that the Panel erred in stating that it was not convinced that "Label D rules of substantial 
transformation" are compelling evidence that the detrimental impact of the amended COOL 
measure on imported livestock reflects arbitrary or unjustifiable discrimination in violation of Article 2.1.
570  
5.155.  In the light of the foregoing considerat ions, we find that the Panel did not err, in 
paragraph 7.279 of the Panel Reports, in findin g that the requirements for Label D are not 
compelling evidence of arbitrary or unjustifiable discrimination in violation of Article 2.1 of the TBT Agreement. 
                                               
568 We recognize that, while, in principle, Label D in dicates only the place of slaughter on muscle cuts 
deriving from foreign-slaughtered livestock, the 2013 Final Rule introduced a voluntary option to "include more specific location information related to production step s (i.e., born, raised, and slaughtered) provided records 
to substantiate the claims are maintained". (Panel  Reports, para. 7.19 (quoting 2013 Final Rule, Section 
65.300(f)(2))) Although the exercise of this voluntary option may, in a given case, result in a disconnect 
between the information collected and the information provided on Label D to the extent that a Category D animal was not born and raised in the country where it  was slaughtered, we consider it important that the 
provision of production step information on Label D is not mandatory in character. Thus, producers and 
processors of foreign-slau ghtered livestock are not required to collect information on Category D animals that 
may not eventually be conveyed on Label D. 
569 Panel Reports, para. 7.279. 
570 Panel Reports, para. 7.279. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.1.3.2  Whether the Panel e rred in its assessment of Label E under Article 2.1 of the 
TBT Agreement 
5.156.  We turn now to address the claims of Canada and Mexico that the Panel committed legal 
errors in its assessment of the relevance of Labe l E for the analysis of whether the detrimental 
impact of the amended COOL measure stems exclus ively from legitimate regulatory distinctions571, 
as well as Canada's discrete claim under Article 11 of the DSU that the Panel disregarded certain evidence that Canada had placed before it, and thereby acted inconsistently with its duty as 
prescribed by that provision.
572  
5.157.  We recall that, unlike Labels A, B, C, and D, which all apply to muscle cuts of meat, Label E 
applies to ground meat products. The requirements for Label E prescribed by the amended COOL measure are the same as those that were prescribed under the original COOL measure. Thus, 
under the amended COOL measure, Label E must in dicate all countries of origin of the meat 
contained in the ground meat product, or that may reasonably be contained therein, based on the 60-day "inventory allowance".
573 Accordingly, when a raw material from a specific country has not 
been in a processor's inventory for more than 60 days, that country shall no longer be included as 
a possible country of origin on the label.574  
5.158.  In its overall analysis of whether the detrimental impact of the amended COOL measure 
stems exclusively from legitimate regulatory distinctions, the Panel first recalled that, in the 
original disputes, the complainants had not demonstrated that the labelling requirements for ground meat caused detrimental impact on imported livestock. The Panel then noted that, in their arguments in these compliance proceedings, the complainants referred to the large percentage of 
meat under the amended COOL measure that would carry Label E, which omits point-of-production 
information and contains "significant flexibility" as to which countries may be listed on the label. The Panel considered, however, that the findings of the original panel on the ground meat labelling 
rules had not been appealed in the original disputes, nor had they been reviewed in the 
Appellate Body's analysis under Article 2.1. Further, the Panel considered that it was not clear that the treatment of ground meat "is sufficiently connected to the relevant regulatory distinctions to 
justify incorporation into [the Panel's] broad assessment" of the design and operation of the 
amended COOL measure.
575 In this regard, the Panel noted that the USDA has explained that the 
production of ground meat entails the processing of trimmings of diverse origin that are ground 
into a final product, and that the ground meat la belling rules have been adapted to the purchasing, 
inventory, and production practices of US beef grinders.576 The Panel stated that the complainants 
had not refuted the different forms of processing undergone by muscle cuts and ground meat, nor had they submitted arguments as to the upstream recordkeeping burdens for ground meat. 
Accordingly, in the light of the findings in the original disputes and the complainants' arguments 
and claims in these compliance disputes, the Panel did not consider the requirements for Label E to evidence that the detrimental impact of the am ended COOL measure reflects discrimination in 
violation of Article 2.1.
577 
5.159.  Canada submits that the Panel erred by relying on the different forms of processing 
undergone by muscle cuts and ground meat as support for the proposition that Label E should be excluded from the analysis of whether the de trimental impact of the amended COOL measure 
reflects discrimination. According to Canada, althou gh the processing of meat differs depending on 
whether the final product is a muscle cut or ground meat, the processing of both products involves the input of livestock and results in the production of meat products. Canada submits that the 
Panel failed to explain why the different forms of  processing undergone by muscle cuts and ground 
meat support its conclusion with respect to Label E. Canada adds that the Panel's approach with respect to Label E is inconsistent with the Panel's correct approach to the exemptions under the 
amended COOL measure. In particular, in assessing whether the detrimental impact of the 
amended COOL measure stems exclusively from legitimate regulatory distinctions, the Panel took into account the exemption from the COOL requirements of muscle cuts of meat that are ingredients in processed food items. For Canada, it  was, therefore, "unreasonable" for the Panel to 
                                               
571 Canada's other appellant's submission, para. 165; Mexico's other appellant's submission, para. 196. 
572 Canada's other appellant's submission, para. 172. 
573 Panel Reports, para. 7.20. 
574 Panel Reports, para. 7.493 (quoting 2009 Final Rule (AMS), Section 65.300(h)). 
575 Panel Reports, para. 7.280. (fn omitted) 
576 Panel Reports, para. 7.280 and fn 635 thereto. 
577 Panel Reports, para. 7.280 and fn 635 thereto. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 rely on the different forms of processing undergone by muscle cuts and ground meat as a basis for 
its conclusion concerning the requirements for Label E.578  
5.160.  Canada further disagrees with the Panel's statement that "[t]he complainants [… did not] 
submit arguments in this compliance dispute as to the upstream burdens relating to ground meat", 
and alleges that the Panel disregarded evid ence and arguments submitted by Canada.579 In this 
connection, Canada points out that, in its second written submission to the Panel, Canada had explained that, in practice, ground beef is produc ed from trimmings resulting from the cutting of 
beef carcasses into steaks and roasts. Canada explains that these beef carcasses are derived from 
cattle that are subject to the increased record keeping burden entailed by the amended COOL 
measure. Thus, livestock used, or partly used, for the production of ground meat are subject to the onerous tracking and verification requiremen ts of the amended COOL measure, even though 
the information conveyed to consumers is far less detailed than that which is required to be 
tracked and verified. For Canada, the Panel disregarded evidence and arguments submitted by Canada and, therefore, acted inconsistently with its mandate under Article 11 of the DSU.
580  
5.161.  For its part, Mexico takes issue with the Panel's finding that, because the requirements for 
Label E have not been shown to demonstrate a detrimental impact on imported livestock, Label E "does not constitute a relevant regulatory distinction of the amended COOL measure for the 
purposes of Article 2.1".
581 Mexico submits that this finding is entirely inconsistent with the Panel's 
acknowledgement that the analysis under Article 2.1 must take into account "the 'overall architecture' of the measure, and encompass[es] aspects of the measure that [are] not themselves 'relevant regulatory distinctions' or independent sources of detrimental impact."
582  
5.162.  Mexico, like Canada, also contends that the Panel erred by relying on the different forms of 
processing undergone by muscle cuts and ground meat as support for its conclusion concerning the requirements for Label E. For Mexico, this is evident in the fact that muscle cuts of beef, 
processed beef products, and products served in food service establishments, were all considered 
by the Panel to be relevant for the purposes of the analysis under Article 2.1, despite the fact that they all involve distinct production processes. Accordingly, Mexico asserts that the production 
process for ground meat cannot constitute a legitimate justification for excluding Label E from the 
analysis under Article 2.1.
583 Mexico submits that, as a central component of the amended COOL 
measure that applies to a substantial proportion of covered beef products, the requirements for 
Label E are relevant to the question of whether the detrimental impact of that measure stems 
exclusively from legitimate regulatory distinctions.584  
5.163.  The United States responds that the clai ms of Canada and Mexico concerning the Panel's 
treatment of the requirements for Label E are premised on the incorrect proposition that a 
regulatory distinction that does not account for the detrimental impact on imported products is 
relevant for the assessment of whether such detrimental impact stems exclusively from legitimate regulatory distinctions. The United States emphasizes that, in the light of the findings of the 
original panel, Label E, unquestionably, does not account for the detrimental impact on imported 
livestock. Noting Mexico's  argument that the Panel's approach to Label E, on the one hand, and its 
approach to the exemptions under the amen ded COOL measure, on the other hand, are 
inconsistent because both elements do not account for the detrimental impact on imported 
livestock, the United States agrees with Mexico  that, in this regard, the Panel's analysis is 
inconsistent and is, therefore, in error. The United States clarifies that this incoherence, however, proves only that the exemptions are not relevant for the analysis under Article 2.1, and that the 
Panel erred in relying on them as a basis for finding that the amended COOL measure is 
inconsistent with Article 2.1.
585  
5.164.  The United States further contends that Canada and Mexico incorrectly criticize the Panel 
for relying on the fact that ground meat is produced from meat derived from different suppliers, 
and through different means of processing, as a basis for concluding that the requirements for 
                                               
578 Canada's other appellant's submission, para. 166. 
579 Canada's other appellant's submission, para. 168 (quoting Panel Reports, para. 7.280). 
580 Canada's other appellant's submission, para. 171. 
581 Mexico's other appellant's submission, para . 186 (quoting Panel Reports, para. 7.207). 
582 Mexico's other appellant's submission, para . 187 (quoting Panel Reports, para. 7.202). 
583 Mexico's other appellant's submission, paras. 191-192. 
584 Mexico's other appellant's submission, para. 189. 
585 United States' appellee's submission, para. 264. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Label E do not evidence that the detrimental impact of the amended COOL measure reflects 
discrimination. In the United States' view, Article 2.1 does not require the United States to apply the same labelling rules to different products. As the United States explained to the Panel, the USDA created separate labelling rules for ground meat based on the unique attributes regarding 
the production of ground meat, which differs substantially from the production of muscle cuts.
586  
5.165.  We note that Canada and, in particular, Mexico suggest that the Panel found that Label E is 
not relevant for the analysis of whether the detrimental impact of the amended COOL measure 
stems exclusively from legitimate regulatory distinctions.587 We observe that the Panel found that 
the requirements for Label E do not constitute a relevant regulatory distinction under the amended 
COOL measure.588 Subsequently, in its overall assessment of whether the detrimental impact of 
the amended COOL measure stems exclusively from legitimate regulatory distinctions, the Panel 
considered "other factors", including the requirem ents for Label E, on the basis that they "may 
pertain to the amended COOL measure's 'design, architecture, revealing structure, operation, and application' in the context of Article 2.1 of the TBT Agreement".
589 In particular, the Panel 
explained that it would address these other factors with a view to examining the "significance of 
such aspects" for the determination of whethe r the amended COOL measure is designed and 
applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination.590  
5.166.  Accordingly, although the Panel found that the requirements for Label E do not constitute a 
relevant regulatory distinction under the amended COOL measure, it did not find, as Canada and Mexico suggest, that these requirements were not relevant for the assessment of whether the detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory 
distinctions. After considering the requirements for Label E in its overall assessment of whether the 
detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory 
distinctions, the Panel stated that it "[did] not consider Label E to evidence the amended COOL 
measure's violation of Article 2.1".
591 Canada and Mexico challenge this statement of the Panel as 
failing to recognize that the requirements for Label E demonstrate that the detrimental impact of the amended COOL measure does not stem exclusivel y from legitimate regulatory distinctions but, 
instead, reflects arbitrary and unjustifiable discrimination in violation of Article 2.1. 
5.167.  The Panel's finding that Label E does not evidence the amended COOL measure's violation 
of Article 2.1 appears to have rested essentially on two grounds: (i) that it was not clear that the treatment of ground meat is sufficiently connected to the relevant regulatory distinctions under the 
amended COOL measure; and (ii) that the original panel had found that the ground meat label had 
not been shown to result in less favourable treatment for imported livestock.
592 
5.168.  Turning to the first of the two grounds abov e, we recall that the Panel considered that it 
was not clear that the treatment of ground meat "is sufficiently connected to the relevant 
regulatory distinctions to justify incorporation into [the Panel's] broad assessment" of the design and operation of the amended COOL measure.
593 In this regard, the Panel noted that the USDA 
had explained that the production of ground meat  entails the processing of trimmings of diverse 
origin that are ground into a final product, and that the ground meat labelling rules had been adapted to the purchasing, inventory, and production practices of US beef grinders.
594  
5.169.  Canada and Mexico contend that the Panel's reliance on the differences in the processing 
of ground beef and muscle cuts was in error. In this regard, Canada and Mexico claim that the 
Panel's reliance on this factor is inconsistent with its correct approach to the exemptions under the amended COOL measure for the purposes of its analysis under Article 2.1. Canada and Mexico 
point out that the exemptions from the COOL requ irements for muscle cuts of beef sold in small 
retail establishments, processed beef produc ts, and products served in food service 
                                               
586 United States' appellee's submission, para. 267. 
587 Canada's other appellant's submission, para. 172; Mexico's other appellant's submission, para. 185.  
588 Panel Reports, para. 7.207. 
589 Panel Reports, para. 7.278. 
590 Panel Reports, para. 7.278. 
591 Panel Reports, para. 7.280. 
592 Panel Reports, para. 7.280. 
593 Panel Reports, para. 7.280. 
594 Panel Reports, para. 7.280 and fn 635 thereto. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 establishments, were all considered by the Panel to be relevant for the purposes of the analysis 
under Article 2.1, despite the fact that they all involve distinct production processes.595 
5.170.  Turning to our analysis, we recall that the Appellate Body has stated that technical 
regulations are measures that, by their very nature, establish distinctions between products 
according to their characteristics or their related processes and production methods. Thus, we do 
not consider that differences between products regulated by the same technical regulation are a priori  irrelevant for the assessment of the consistency of that technical regulation with the 
requirements of Article 2.1. However, for the reasons stated below, we do not consider that 
whether the requirements for Label E support a conclusion that the detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory distinctions is a function of the differences between the production processes for muscle cuts of meat, ground meat, and meat 
products that are exempt from the coverage of the COOL requirements.  
5.171.  First, we note that the Panel identified the relevant regulatory distinctions in these disputes 
as the distinctions between the three production steps, as well as the mandatory labels to be 
affixed to muscle cuts of beef and pork.
596 Moreover, the Panel found that, in the context of the 
muscle cut labels, and in comparison with th e original COOL measure, the amended COOL 
measure entails increased detrimental impact on imported livestock.597 The participants have not 
appealed these findings. Both Canada and Mexico rely on the exemptions from the coverage of the 
COOL requirements as support for their contention that the requirements for Label E demonstrate that the detrimental impact of the amended CO OL measure does not stem exclusively from 
legitimate regulatory distinctions. As we see it , the exemptions from the coverage of the COOL 
requirements have a direct connection to the relevant regulatory distinctions under the amended 
COOL measure and the source of the detrimental impact on the imported products in these disputes – i.e. the recordkeeping and verification requirements that create an incentive for 
US producers to process exclusively domestic livestock, a disincentive to handle imported 
livestock, and, consequently, a detrimental impact on such imported livestock in the context of the muscle cut labels. This is because, due to these exemptions, the detailed information required to 
be tracked and transmitted by upstream producers is not necessarily conveyed to consumers on 
the mandatory labels to be affixed to muscle cuts of beef and pork. For this reason, the detrimental impact caused by the same recordke eping and verification requirements under the 
amended COOL measure cannot be explained by the need to provide origin information to 
consumers. 
5.172.  By contrast, we are not persuaded that the requirements applicable to Category E ground 
meat have a sufficient connection to the recordkeeping and verification requirements that cause a 
detrimental impact on imported livestock " in the context of the muscle cut labels ".
598 Nor do they 
have a sufficient connection to the relevant regulatory distinctions at issue, i.e. the distinction between the three production steps, as well as the mandatory labels to be affixed to muscle cuts  
of beef and pork. In this regard, we note that the original panel had found that the flexibility 
provided by the 60-day "inventory allowance" fo r the labelling of Category E ground meat was 
available not only for meat grinders "but for market participants at every stage of [ground] meat 
supply and distribution ".
599 Thus, contrary to what Canada and Mexico suggest, we are not 
persuaded that Label E contributes, as the exempt ions do, to the lack of correspondence between, 
on the one hand, the recordkeeping and verificati on requirements of the amended COOL measure 
and, on the other hand, the limited consumer information conveyed through the retail labelling 
requirements for muscle cuts of meat.600  
5.173.  Thus, we consider that the requirements for Label E are not sufficiently connected to the 
relevant regulatory distinctions under the amended COOL measure, or the source of the 
detrimental impact on imported livestock, to be probative of whether such detrimental impact 
stems exclusively from legitimate regulatory distin ctions. Accordingly, we do not consider that the 
Panel erred in stating that it was not clear that the treatment of ground meat "is sufficiently 
                                               
595 Canada's other appellant's submission, para. 166; Mexico's other appellant's submission, 
paras. 191-192. 
596 Panel Reports, para. 7.198. 
597 Panel Reports, para. 7.176. 
598 Panel Reports, para. 7.176. (emphasis added) 
599 Original Panel Reports, US – COOL , para. 7.434. (emphasis added) 
600 Canada's other appellant's submission, para. 170.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 connected to the relevant regulatory distinctions to justify incorporation into [the Panel's] broad 
assessment" of the design and oper ation of the amended COOL measure.601 
5.174.  We note that, for Mexico, the requirements for Label E evidence that the detrimental 
impact of the amended COOL measure on import ed livestock does not stem exclusively from 
legitimate regulatory distinctions because Label E provides less detailed, and less accurate, 
information on Category E ground meat compared with the information provided on the labels for muscle cuts of meat.
602 As we have stated in connection with Canada's claim concerning the 
Panel's consideration of Label D for the purposes of its analysis under Article 2.1, the focus of the 
inquiry under Article 2.1 in these disputes is not, in itself, the relative accuracy of the labels prescribed by the amended COOL measure. Instead,  the accuracy of the labels prescribed by the 
amended COOL measure is a relevant factor to the extent that it demonstrates that the 
recordkeeping and verification requirements of that measure impose a disproportionate burden on 
upstream producers and processors compared with the level of information conveyed to consumers through the mandatory labelling requirements for muscle cuts of meat. For the reasons 
stated above, we do not see this to be the case with the requirements for Label E. 
5.175.  Turning to the second of the two grounds referred to above, we recall Mexico's contention 
that the Panel erred in dismissing Mexico's claim concerning the relevance of the requirements for 
Label E for the analysis under Article 2.1 on the ba sis that the original panel had found that "the 
complainants ha[d] not demonstrated that the ground meat label under the [original] COOL measure results in less favourable treatment for imported livestock."
603 We recall that, in the 
original disputes, the original panel had not specifically considered whether the detrimental impact 
of the original COOL measure stemmed exclusively from legitimate regulatory distinctions.604 
Instead, the original panel's finding that the original COOL measure accorded less favourable treatment to imported livestock than to domestic livestock in violation of Article 2.1 was based 
only on the existence of a detrimental impact on imported livestock. Thus, the finding of the 
original panel that the compliance Panel relied on was, essentially, a finding that Label E had not been shown to cause a detrimental impact on imported livestock. 
5.176.  According to Mexico, the fact that the requirements for Label E do not independently cause 
the detrimental impact on the imported products at issue in these disputes is not a sufficient 
ground for the Panel's finding that Label E does not evidence that the amended COOL measure is 
inconsistent with Article 2.1.
605 We do not consider that whether an element of a challenged 
technical regulation is, independently, the cause of the detrimental impact on imported products to 
be determinative of its relevance for the analysis of whether such detrimental impact stems exclusively from legitimate regulatory distinctions. Instead, the relevant question is whether that 
element of the challenged technical regulation is  probative of whether the detrimental impact of 
that technical regulation on imported products stems exclusively from legitimate regulatory distinctions. For the reasons stated above, we do not consider that the requirements for Label E 
are sufficiently connected to the relevant regulatory distinctions under the amended COOL 
measure, or the source of the detrimental impact in the context of these disputes, to be probative 
of whether such detrimental impact stems exclusively from legitimate regulatory distinctions.  
5.177.  It remains for us to consider Canada's claim that the Panel acted inconsistently with 
Article 11 of the DSU by stating that "[t]he complainants [… did not] submit arguments in this 
compliance dispute as to the upstream burdens relating to ground meat."
606 Canada points out 
that, in its second written submission to the Pane l, Canada had explained that, in practice, ground 
                                               
601 Panel Reports, para. 7.280. 
602 Mexico's other appellant's submission, para. 195. 
603 Original Panel Reports, US – COOL , para. 7.437. 
604 In this regard, the Appellate Body noted in the original disputes:  
The Panel seems to have considered its finding th at the COOL measure alters the conditions of 
competition to the detriment of imported livestock to be dispositive, and to lead, without more, to a finding of violation of the national treatment obligation in Article 2.1. In this sense, the Panel's legal analysis under Article 2.1 is incomplete. The Panel should have continued its examination and determined whether the circumstances of this case indicate that the detrimental impact stems exclusively from a legitimate regula tory distinction, or wh ether the COOL measure 
lacks even-handedness.  
(Appellate Body Reports, US – COOL , para. 293) 
605 Mexico's other appellant's submission, paras. 186-187. 
606 Canada's other appellant's submission, para. 168 (quoting Panel Reports, para. 7.280). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 beef is produced from trimmings resulting from the cutting of beef carcasses into steaks and 
roasts, and that these beef carcasses, in turn, are produced from cattle that are subject to the 
"increased recordkeeping burden" resulting from the implementation of the amended COOL measure. Accordingly, livestock used, or partly used, for the production of ground meat are 
subject to the onerous tracking and verification  requirements of the amended COOL measure, 
even though the information conveyed to consumers is far less detailed than that which is required to be tracked and verified. Canada submits that the Panel's statement that Canada did not submit 
arguments as to the upstream burdens relating to ground meat, thus, "lack[ed] a basis in the 
evidence contained in the panel record".
607 Canada further contends that, "[h]ad the [c]ompliance 
Panel properly assessed" Canada's arguments and evidence, it "could not have dismissed" Canada's claim "in the manner that it did".
608  
5.178.  As we see it, Canada's claim under Article 11 of the DSU implicates issues that we have 
already considered in examining the requirements for Label E above. In particular, we have found that the requirements for Label E are not sufficiently connected to the relevant regulatory 
distinctions under the amended COOL measure, or  the source of the detrimental impact in the 
context of these disputes, to be probative of wh ether such detrimental impact stems exclusively 
from legitimate regulatory distinctions. We are not persuaded that further examination of Canada's 
claim under Article 11 of the DSU would affect our view of the conclusion of the Panel that the 
requirements for Label E do not "evidence the amended COOL measure's violation of Article 2.1".
609 Thus, we decline to examine further Canada's claim under Article 11 of the DSU. 
5.179.  For the reasons expressed above, we find that the Panel did not err, in paragraph 7.280 of 
the Panel Reports, in finding that the requiremen ts for Label E do not evidence the amended COOL 
measure's inconsistency with Article 2.1 of the TBT Agreement. 
5.1.3.3  Whether the Panel erred in its assessment of the amended COOL measure's 
prohibition of a trace-back system und er Article 2.1 of the TBT Agreement 
5.180.  We turn now to the final claim of Canada under Article 2.1 of the TBT Agreement. Canada 
submits that the Panel failed to assess the releva nce of the prohibition of a trace-back system 
under the amended COOL measure for the analysis  of whether the detrimental impact of that 
measure stems exclusively from legitimate regulatory distinctions. 
5.181.  In its overall assessment of whether the detrimental impact of the amended COOL 
measure stems exclusively from legitimate regulatory distinctions, the Panel noted that, although 
the complainants had relied on the prohibition of a trace-back system under the amended COOL 
measure as evidence of "arbitrariness", they had not provided specific arguments or evidence as to the nature of the prohibited trace-back measure.
610 Instead, the Panel considered the relevance of 
the complainants' argument to be limited to the question of whether the prohibition of a 
trace-back mechanism necessitated the same, or similar, audit and verification system as the amended COOL measure and its related detrimental impact on imported livestock. The Panel, thus, 
found that, inasmuch as this argument focused on the claimed deficiencies of the amended COOL 
measure's labelling rules, it had already considered this in its analysis under Article 2.1.
611 
5.182.  Canada submits that the Panel erred in dismissing Canada's argument concerning the 
trace-back prohibition, and its relevance for th e assessment of the amended COOL measure under 
Article 2.1, on the grounds that it was "limited to whether the trace-back prohibition necessitates 
the same (or similar) audit and verification sy stem of the amended COOL measure and that it 
'reverts focus to the claimed deficiencies of  the amended COOL measure's labelling rules'".612 
Canada observes that it had noted before the Panel that the COOL statute requires that persons 
subject to audits provide the Secretary of Agricult ure with verification of the origin of covered 
commodities and that origin information be maintained by persons supplying covered commodities 
                                               
607 Canada's other appellant's subm ission, para. 169. (fn omitted) 
608 Canada's other appellant's submission, para. 171. 
609 Panel Reports, para. 7.280. 
610 Panel Reports, para. 7.281 (referring to Canada's second written submission to the Panel, para. 45; 
and Mexico's second written submission to the Panel, paras. 71-72). 
611 Panel Reports, para. 7.281. 
612 Canada's other appellant's submission, para. 177 (quoting Panel Reports, para. 7.281). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 to retailers. According to Canada, a trace-back system and the amended COOL measure's system 
of recordkeeping and verification could both meet that origin verification requirement. 
5.183.  For Canada, the prohibition of a trace-ba ck system demonstrates that the detrimental 
impact of the amended COOL measure does not stem exclusively from legitimate regulatory 
distinctions but, instead, reflects arbitrary and unjustifiable discrimination in violation of 
Article 2.1. This is because, as Canada puts it, by prohibiting a trace-back system that, in Canada's view, would not cause a detrimental impact on imported livestock, the United States has made an 
explicit choice in favour of the recordkeeping requirements under the amended COOL measure – 
i.e. the source of the detrimental impact on imported livestock in these disputes. For Canada, this explicit choice in favour of the recordkeepin g requirements under the amended COOL measure 
demonstrates that the detrimental impact resulting therefrom does not stem exclusively from 
legitimate regulatory distinctions but, instead, reflects arbitrary or unjustifiable discrimination in 
violation of Article 2.1.
613  
5.184.  Canada submits further that the Panel erred in dismissing Canada's arguments concerning 
the relevance of the trace-back prohibition for th e analysis under Article 2.1 on the basis of an 
a l l e g e d  f a i l u r e  o f  C a n a d a  t o  " p r o v i d e  s p e c i f i c  a r g u m e n t s  o r  e v i d e n c e  …  a s  t o  t h e  n a t u r e  o f  t h e  prohibited trace-back measure".
614 In this regard, Canada asserts that it is clear from the text of 
the amended COOL measure that no particular trace-back measure is prohibited. Rather, "the 
prohibition applies to a key component – mandatory identification – of any trace-back measure, 
thereby precluding the implementation of the origin labelling requirements through such a 
measure."615  
5.185.  The United States responds that Canada's argument that the trace-back prohibition is 
relevant for the analysis under Article 2.1 is incorrect because the trace-back prohibition does not account for the detrimental impact on imported livestock and, therefore, it is not relevant for the 
determination of whether such detrimental impact stems exclusively from legitimate regulatory 
distinctions. Noting Canada's argument that the trace-back prohibition supports a finding of violation under Article 2.1 because it represents a "choice" between a trace-back system, on the 
one hand, and the recordkeeping and verification requirements of the amended COOL measure, on 
the other hand
616, the United States contends that the fact that the United States could have 
chosen an alternative that, in Canada's view, does not result in a detrimental impact on imported livestock does not mean that the amended COOL measure is inconsistent with Article 2.1. The 
United States submits that, in this regard, Canada misunderstands the analysis under Article 2.1 
for determining whether the detrimental impact of a technical regulation on imported products stems exclusively from legitimate regulatory distinctions.
617  
5.186.  In addressing this claim, we recall th at Article 2.1 of the TBT Agreement does not, per se , 
prohibit technical regulations that cause a detrimental impact on like imported products. We recall that technical regulations that have a de facto  detrimental impact on imports may not be 
inconsistent with Article 2.1 when such impact stems exclusively from legitimate regulatory 
distinctions.
618 Thus, if a panel finds that a technical regulation has a detrimental impact on 
competitive opportunities for like imported products, the focus of the inquiry under Article 2.1 shifts to whether that detrimental impact stems exclusively from legitimate regulatory distinctions. 
This inquiry must focus on the technical regulati on at issue and its detrimental impact on like 
imported products with a view to ascertaining whether such detrimental impact stems exclusively from legitimate regulatory distinctions. The inquiry probes the legitimacy of the relevant regulatory 
distinctions drawn by the technical regulation at issue through careful scrutiny of whether they are 
designed and applied in an even-handed manner such that they may be considered "legitimate" for the purposes of Article 2.1. 
                                               
613 Canada's other appellant's submission, para. 177.  
614 Canada's other appellant's submission, para. 176 (quoting Panel Reports, para. 7.281).  
615 Canada's other appellant's submission, para. 176. (emphasis original) 
616 United States' appellee's submission, para. 272 (quoting Canada's other appellant's submission, 
para. 177). 
617 United States' appellee's submission, para. 272. 
618 Appellate Body Reports, US – COOL , para. 271. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.187.  As we see it, because Article 2.1 of the TBT Agreement does not, per se , prohibit technical 
regulations that cause a detrimental impact on like imported products, the inquiry into whether the detrimental impact stems exclusively from legitimate regulatory distinctions is not answered by comparing the measure at issue and its associated detrimental impact with an alternative measure 
that, allegedly, would not cause a detrimental impact on such imported products.  
5.188.  In our view, the trace-back prohibition is part of the overall architecture of the amended 
COOL measure and thus cannot a priori  be excluded as a relevant factor in assessing the 
consistency of that measure with Article 2.1. That notwithstanding, the trace-back prohibition 
under the amended COOL measure is ultimately no t probative of whether the detrimental impact 
of that measure stems exclusively from legitimate regulatory distinctions. This is because, as explained above, the relevant question posed for the purposes of Article 2.1 is whether the 
detrimental impact on imported products caused by the recordkeeping and verification 
requirements of the amended COOL measure st ems exclusively from legitimate regulatory 
distinctions. The question is not, as Canada suggests, whether such detrimental impact can be 
avoided by utilizing a trace-back system that could be designed in a manner that avoids 
detrimental impact on imported products. We, ther efore, disagree with Canada that the trace-back 
prohibition is relevant for the inquiry under Article 2.1 because it constitutes an explicit choice 
between, on the hand, a trace-back system that, a llegedly, would not create a detrimental impact 
on imported livestock and, on the other hand, the recordkeeping and verification requirements of the amended COOL measure that create a detrimental impact on Canadian livestock. To us, this "choice", as Canada puts it, is not relevant for the purposes of determining whether the 
detrimental impact of the amended COOL measure stems exclusively from legitimate regulatory 
distinctions. In our view, Canada's arguments concerning the implications of a trace-back system as an alternative to the recordkeeping and veri fication requirements under the amended COOL 
measure would seem to be more relevant for the analysis under Article 2.2 of the TBT Agreement, 
that is, whether the measure is more trade rest rictive than necessary to fulfil a legitimate 
objective, taking account of the risks non-fulfilment would create.  
5.189.  Turning more specifically to the Panel's findings challenged by Canada on appeal, it seems 
to us that the Panel dismissed Canada's claim under Article 2.1 concerning the prohibition of a trace-back system under the amended COOL meas ure on two grounds. First, Canada had not 
provided specific arguments or evidence as to the nature of the prohibited trace-back system. 
Second, Canada's claim was premised on an assumption that the prohibition of a trace-back 
system necessitates the same (or similar) audit and verification system as the amended COOL 
measure and its related detrimental impact on imported livestock.
619 Canada faults the Panel for 
basing its dismissal of Canada's claim concerning the trace-back prohibition on these grounds.  
5.190.  We have found, for the reasons stated above, that the prohibition of a trace-back system 
under the amended COOL measure is not probativ e of whether the detrimental impact of that 
measure on imported livestock stems exclusively from legitimate regulatory distinctions. Thus, 
evidence and arguments as to the nature of th e trace-back system prohibited by the amended 
COOL measure would not have altered the Panel's ultimate conclusion as to the relevance of the trace-back prohibition for its analysis under Article 2.1.  
5.191.  For the reasons expressed above, we find that the Panel did not err, in paragraph 7.281 of 
the Panel Reports, in its assessment of the relevance of the amended COOL measure's prohibition 
of a trace-back system for the analysis of whet her the detrimental impact of that measure on 
imported livestock stems exclusively from legitimate regulatory distinctions. 
5.2  Article 2.2 of the TBT Agreement 5.192.  Canada and Mexico request us to reverse the Panel's finding that they failed to make a 
prima facie  case that the amended COOL measure is inconsistent with Article 2.2 of the 
TBT Agreement, and to complete the legal analysis  in respect of their first and second proposed 
alternative measures. In this regard, Canada and Mexico claim that the Panel made a series of errors of interpretation and application, and failed  to make, in respect of certain factual findings, 
an objective assessment of the matter as required under Article 11 of the DSU. Canada and Mexico 
also request us to find that the Panel erred in the burden of proof it applied in respect of the 
                                               
619 Panel Reports, para. 7.281. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 complainants' third and fourth proposed alternative measures, but they do not request completion 
of the legal analysis with respect to those proposed alternative measures.  
5.193.  The United States also makes a claim on appeal in respect of Article 2.2 of the 
TBT Agreement, contingent on whether Canada or Mexico appeals the Panel's findings under that 
provision. Thus, in the light of Canada's and Mexico's appeals concerning Article 2.2, the 
United States' conditional appeal is activated. We are, therefore, called upon to review the United States' request to reverse the Panel's interpretation of the phrase "taking account of the 
risks non-fulfilment would create" in Article 2.2 of the TBT Agreement.  
5.194.  We begin by setting out our interpretation of Article 2.2 of the TBT Agreement, as relevant 
to the claims before us. We then address the specific claims of Canada and Mexico in respect of the legal test for "more trade-restrictive than necess ary" under Article 2.2, followed by their claims 
of error in respect of the Panel's finding on the amended COOL measure's degree of contribution to 
its objective. We then turn to the series of claims made by the participants on appeal in respect of the interpretation and application of the phrase "taking account of the risks non-fulfilment would 
create" in Article 2.2. These include the United States' claim that the Panel erred in its 
interpretation of this phrase, as well as the claims of Canada and Mexico that the Panel erred in the factors it took into account in assessing "the risks non-fulfilment would create", and that the 
Panel erred in finding that it could not ascertain the gravity of the consequences of non-fulfilment 
of the amended COOL measure's objective. Finally, we consider whether the Panel erred in finding t h a t  C a n a d a  a n d  M e x i c o  f a i l e d  t o  m a k e  a  prima facie  case that the first and second proposed 
alternative measures would make an equivalent degree of contribution to the amended COOL 
measure's objective, before considering the claims of Canada and Mexico in respect of their third 
and fourth proposed alternative measures. 
5.2.1  Interpretation of Article 2.2 of the TBT Agreement 
5.195.  We begin by re calling the Appellate Body's interp retation of Article 2.2 of the 
TBT Agreement in previous disputes, focusing, in particular, on the sequence and order of the analysis of whether a technical regulation is "more trade-restrictive than necessary", and on the 
relevant considerations of how various factors are to be assessed under Article 2.2 within that 
analysis. 
5.196.  Article 2.2 of the TBT Agreement provides: 
Article 2 
Preparation, Adoption and Application of Technical Regulations  
by Central Government Bodies 
With respect to their central government bodies: 
… 
2.2 Members shall ensure that technical regulations are not prepared, adopted or 
applied with a view to or with the effect of creating unnecessary obstacles to 
international trade. For this purpose, technical regulations shall not be more trade-
restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia : national 
security requirements; the prevention of deceptive practices; protection of human 
health or safety, animal or plant life or health, or the environment. In assessing such 
risks, relevant elements of consideration are, inter alia : available scientific and 
technical information, related processing tec hnology or intended end-uses of products. 
5.197.  The Appellate Body addressed the approach to determining whether a technical regulation 
is more trade restrictive than necessary under Article 2.2 in US – Tuna II (Mexico)  and in the 
original proceedings in these disputes.
620 Ultimately, the task of a panel under Article 2.2 is to 
determine whether the technical regulation at issue restricts international trade beyond what is 
                                               
620 See Appellate Body Reports, US – Tuna II (Mexico) , para. 322; and US – COOL , para. 471. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 necessary for that technical regulation to achieve the degree of contribution that it makes to the 
achievement of a legitimate objective.621 For that purpose, the Appellate Body identified a number 
of factors to be evaluated. These include: 
… (i) the degree of contribution made by the measure to the legitimate objective at 
issue; (ii) the trade-restrictiveness of the me asure; and (iii) the nature of the risks at 
issue as well as the gravity of the consequences that would arise from non-fulfilment of the objective pursued by the Member through the measure. The Appellate Body 
further stated that, "[i]n most cases, a comparison of the challenged measure and 
possible alternative measures should be undertaken."
[*] In making this comparison, it 
will be relevant to consider whether the proposed alternative is less trade restrictive; whether it would make an equivalent contribution to the relevant legitimate objective, 
taking account of the risks non-fulfilment would create; and whether it is reasonably 
available. For the reasons that led us to reverse the Panel's finding under Article 2.2, we consider the present case to be one that calls for an examination of the factors 
identified above for both the COOL measure and the alternatives proposed by the 
complainants in order to determine whether the COOL measure is more trade restrictive than "necessary" to fulfil its objective.
622 
[*fn original] 950 Appellate Body Report, US – Tuna II (Mexico) , para. 322. As noted above, the 
Appellate Body identified two instances where a comparison of the challenged measure with 
possible alternative measures may not be required, namely, wh en the measure is not trade 
restrictive at all, or when a trade-restrictive measure makes no contribution to the achievement 
of the relevant legitimate obje ctive. (Appellate Body Report, US – Tuna II (Mexico) , footnote 647 
to para. 322) 
5.198.  The assessment of whether a technical regulation is more trade restrictive than necessary 
under Article 2.2 involves the holistic  weighing and balancing of the factors as set out above.623 
5.199.  A complainant may seek to identify a possible alternative measure that is less trade 
restrictive, makes an equivalent contribution to the relevant objective, and is reasonably available, 
as part of making its prima facie  case that a technical regulation is more trade restrictive than 
necessary.624 As the Appellate Body has stated, the use of the comparative "more … than" in the 
second sentence of Article 2.2 suggests that the existence of an "unnecessary obstacle[] to 
international trade" in the first sentence may be established on the basis of a comparative analysis.
625 This understanding of the comparative character of Article 2.2 is confirmed by the 
context afforded by Article 2.3 of the TBT Agreem ent, which provides that "[t]echnical regulations 
shall not be maintained … if the changed circumstances or objectives can be addressed  in a less 
trade-restrictive manner ."626  
5.200.  The Appellate Body has held that a comparison of the technical regulation with possible 
alternative measures is required "[i]n most cases".627 The Appellate Body has also clarified that a 
comparison with proposed alternative measures should be understood as a "conceptual tool" for the purpose of assessing whether a challenged technical regulation is more trade restrictive than 
necessary under Article 2.2.
628 This assessment would involve a comparison of the 
trade-restrictiveness and the degree of contributi on to the objective achieved by the technical 
regulation at issue with those same elements in respect of reasonably available alternative 
measures, taking account of the risks non-fulfilment of the objective would create.629  
                                               
621 Appellate Body Reports, US – COOL , para. 461. See also Appellate Body Report, US – Tuna II 
(Mexico) , para. 319.  
622 Appellate Body Reports, US – COOL , para. 471 and fn 950 thereto. (fns 949 and 951 omitted) 
623 See Appellate Body Reports, US – Tuna II (Mexico) , fn 643 to para. 318; Brazil – Retreaded Tyres , 
para. 178; and US – Gambling , paras. 306-308. 
624 Appellate Body Reports, US – Tuna II (Mexico) , para. 323; US – COOL , para. 379. 
625 Appellate Body Reports, US – Tuna II (Mexico) , para. 320; US – COOL , para. 376. 
626 Emphasis added.  
627 Appellate Body Reports,  US – Tuna II (Mexico) , para. 322 and fn 641 thereto; US – COOL , para. 376 
and fn 748 thereto. 
628 Appellate Body Reports,  US – Tuna II (Mexico) , para. 320; US – COOL , fn 749 to para. 376. 
629 See Appellate Body Report, US – Tuna II (Mexico) , para. 320. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.201.  An assessment of whether a proposed alternative measure achieves an equivalent  degree 
of contribution to the relevant legitimate objective is essential for a panel to determine whether the technical regulation at issue restricts international trade beyond what is necessary to achieve the degree of contribution that it makes to the achievement of a legitimate objective.
630 The need 
for the equivalence of the respective degrees of contribution as between the challenged technical 
regulation and proposed alternative measures also  comports with the principle reflected in the 
sixth preambular recital of the TBT Agreement – that a Member shall not be prevented from 
pursuing a legitimate objective "at the levels it considers appropriate".631 The level a Member 
"considers appropriate" is usually revealed by the degree of contribution that a technical regulation 
actually  makes to its objective.632  
5.202.  As we have noted, an assessment of whether a technical regulation is more trade 
restrictive than necessary under Article 2.2 ultimately involves the holistic weighing and balancing 
of all relevant factors. Article 2.2 does not explicitly prescribe, in rigid terms, the sequence and order of analysis in assessing whether the technical regulation at issue is more trade restrictive 
than necessary.
633 As we explain below, a certain sequence and order of analysis may, 
nonetheless, flow logically from the natu re of the examination under Article 2.2. 
5.203.  This sequence and order is discernible both in the Appellate Body's past analyses in 
respect of Article 2.2 of the TBT Agreement634, as well as in the relevant jurisprudence relating to 
Article XX of the GATT 1994 and Article XIV of the GATS.635 For instance, in US – Gambling , the 
Appellate Body set out a sequence in respect of the "necessity" analysis under Article XIV of the GATS as follows: "The process begins with  an assessment of …"; " Having ascertained  …, a panel 
should then turn to the other factors that are to be 'weighed and balanced'"; and "A comparison 
between the challenged measure and possible alternatives should then be undertaken."
636 
Likewise, with regard to the sequence and order of the "necessity" analysis under Article XX of the 
GATT 1994, the Appellate Body in Brazil – Retreaded Tyres mentioned, first, the relevant factors to 
be weighed and balanced for the measure sought to be justified, and continued as follows: 
If this analysis yields a preliminary conclusion that the measure is necessary, this 
result must be confirmed by comparing the measure with its possible alternatives, 
which may be less trade restrictive while providing an equivalent contribution to the achievement of the objective pursued.
637  
5.204.  The Appellate Body in China – Publications and Audiovisual Products  summarized these 
approaches to assessing the sequence and order of the "necessity" analysis as "recogniz[ing] that 
a comprehensive analysis of the 'necessity' of a measure is a sequential process" that "must 
logically begin with a first step, proceed through a number of additional steps, and yield a final 
conclusion."638 W e  t a k e  a  s i m i l a r  v i e w  i n  r e s p e c t  o f  the sequence and order of the "necessity" 
analysis under Article 2.2 of the TBT Agreement. 
                                               
630 Appellate Body Reports, US – COOL , para. 461. 
631 See Appellate Body Reports, US – COOL , para. 373.  
632 Appellate Body Reports, US – COOL , para. 373. The level at which a Member considers it appropriate 
to pursue a legitimate objective may al so be discernible in other ways, such  as through an express provision or 
statement in the instrument at issue.  
633 Appellate Body Report, US – Tuna II (Mexico) , fn 643 to para. 318 (referring to Appellate Body 
Reports, Brazil – Retreaded Tyres , para. 178; and US – Gambling , paras. 306-308). 
634 Appellate Body Reports, US – Tuna II (Mexico) , paras. 327-329; US – COOL , paras. 472-479. 
635 See Appellate Body Report, US – Tuna II (Mexico) , para. 320 and fn 645 thereto. The Appellate Body 
drew an analogy with the analysis of "necessity" in th e context of Article XX of the GATT 1994 and Article XIV 
of the GATS, in which a measure found to be inconsistent  with a relevant obligation is to be compared with 
reasonably available less trade-restrictive alternative measures. (Appellate Body Report,  US – Tuna II 
(Mexico) , fn 645 to para. 320 (referring to Appellate Body Report, Korea – Various Measures on Beef , 
para. 166)) 
636 Appellate Body Report, US – Gambling , paras. 306-307. (emphasis added) 
637 Appellate Body Report, Brazil – Retreaded Tyres , para. 156. 
638 Appellate Body Report, China – Publications and Audiovisual Products , para. 242 (referring to 
Appellate Body Reports, US – Gambling , paras. 306-307; Korea – Various Measures on Beef , para. 166; and 
Brazil – Retreaded Tyres , paras. 156 and 178). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.205.  Nonetheless, the particular manner of sequencing the steps of this analysis is adaptable, 
and may be tailored to the specific claims, measures, facts, and arguments at issue in a given case.
639 For instance, the sequence and order of analysis appropriate in a given case may depend 
on the characteristics of the technical regulation at issue as revealed through its design and 
s t r u c t u r e ,  a s  w e l l  a s  o n  t h e  n a t u r e  o f  t h e  objective pursued and the quantity, quality, and 
availability of evidence. It may also depend on which elements are the focus of contention 
between the disputing parties, and which, if any,  are conceded or undisputed between the parties. 
This adaptability of the sequence or order is indi cative of the character of the assessment of "more 
trade-restrictive than necessary" under Article 2.2 as a holistic  weighing and balancing of all 
relevant factors. We note that, in the context of Article XX of the GATT 1994, the sequence and order of analysis in the circumstances of Brazil – Retreaded Tyres  called for a "preliminary 
conclusion" on the necessity of the challenged me asure before proceeding to a comparison with 
proposed alternatives, whereas such a "preliminary conclusion" was not considered to be a requisite aspect of the sequence and order of analysis in the circumstances of EC – Seal 
Products .
640 
5.206.  Accordingly, panels are afforded a certain degree of latitude to tailor the sequence and 
order of analysis in a given case when assessing the relevant factors and in conducting the overall 
weighing and balancing under Article 2.2. This latitude, however, is not boundless.641 Rather, it is 
informed by the specific claims, measures, facts, and arguments at issue, as mentioned above. Therefore, an appellant challenging the sequence and order of analysis adopted by a panel in a given case must demonstrate why, by following a particular sequence, the panel committed an 
error in the specific circumstances of the case at hand. It is not sufficient for an appellant merely 
to claim that a panel erred by deviating from a certain sequence and order of analysis in the abstract. 
5.207.  Having set out our considerations with respect to the sequence and order of analysing 
relevant factors under Article 2.2 of the TBT Agreement, we turn now to certain observations in respect of how to assess these factors. While cognizant that these factors are to be assessed as 
part of a holistic weighing and balancing, we begin with the factors pertaining to the technical 
regulation itself, followed by the factors involved in the comparative analysis with proposed alternative measures, before turning to the role of "the risks non-fulfilment would create". 
5.208.  In assessing the relevant factors in respect of the technical regulation itself, we note that, 
while a complainant must be held to fulfil its burden to present a prima facie  case that the 
technical regulation is more trade restrictive than necessary under Article 2.2, it will not always be 
possible to quantify a particular factor, or to  do so with precision. This may be due to, inter alia , 
the nature of the objective pursued and the level of protection sought, as well as the nature, 
quantity, and quality of evidence existing at the time the analysis is made, and the characteristics of the technical regulation at issue as revealed by its design and structure.
642 For instance, in 
respect of assessing the trade-restrictiveness of  a technical regulation under Article 2.2, the 
Appellate Body has considered that the demonstration of a limiting effect on competitive opportunities in qualitative terms might suffice in the particular circumstances of a given case.
643  
5.209.  We also consider the jurisprudence under Article XX of the GATT 1994 to be instructive in 
this regard. For instance, in Brazil – Retreaded Tyres , the Appellate Body considered that there 
was no obligation to quantify  the contribution of the challenged measure but, rather, in the specific 
circumstances of that case, it sufficed to demonstrate in qualitative terms that the measure was 
"apt to produce a material contribution" to its objective at some point in time.644 In a similar vein, 
the Appellate Body considered in EC – Seal Products  that there was "limited and uneven 
                                               
639 See e.g. Appellate Body Report, China – Publications and Audiovisual Products , para. 247. 
640 Appellate Body Reports, Brazil – Retreaded Tyres , para. 156; EC – Seal Products , fn 1299 to 
para. 5.215. 
641 Appellate Body Reports, Brazil – Retreaded Tyres , para. 145; EC – Seal Products , para. 5.211.  
642 See Appellate Body Report, Brazil – Retreaded Tyres , para. 145. 
643 See Appellate Body Reports, US – COOL , para. 477. At the same time, evidence of actual trade 
effects may also be probative in making this assessme nt. (Ibid.) For instance, a de trimental modification of 
competitive opportunities may be self-evident in respect of certain de jure  discriminatory measures, whereas 
supporting evidence and argumentation of actual trade effects might be required to demonstrate the existence 
and extent of trade-restrictiveness in  respect of non-discriminatory internal  measures that address a legitimate 
objective. (See e.g. Appellate Body Report, EC – Poultry , paras. 126-127) 
644 Appellate Body Report, Brazil – Retreaded Tyres , para. 151. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 information relating to the actual  operation of the measure on the [p]anel record".645 In that 
context, while the panel's conclusion on contribution did not provide "much information" as to the precise degree or extent of the measure's contribution, the Appellate Body also recognized that "it [was] not clear what greater clarity or precision the [p]anel could have achieved in the 
circumstances of this case".
646 Thus, the Appellate Body did not find fault with the statement made 
by the panel in EC – Seal Products  that the measure at issue was " capable  of making and does 
make some  contribution" to its objective, or that it did so "to a certain  extent ".647 
5.210.  While panels are afforded a certain degree of latitude in determining how to assess the 
relevant factors in an Article 2.2 analysis, this latitude is not boundless.648 Rather, it is informed, 
for example, by the facts and arguments presente d to the panel by the parties. Where different 
methodologies for the assessment of a relevant factor are available based on the facts and 
arguments submitted by the parties, panels must adopt or develop a methodology that is suited to 
yielding a correct assessment of the relevant factor in the circumstances of a given case. 
5.211.  Thus, in our view, the nature of the obje ctive of the technical regulation at issue, its 
characteristics as revealed by its design and st ructure, and the nature, quantity, and quality of 
evidence available, may have a bearing on whether a relevant factor, such as the technical regulation's degree of contribution to its objective, can be assessed in quantitative or qualitative 
terms under Article 2.2, as well as on the degree of precision with which such an analysis can be 
undertaken. The corollary is that, when a factor such as the contribution of a technical regulation to its objective can be assessed only with a lesser degree of precision, a panel should not end its analysis and conclude that the complainant failed to make its prima facie  case in this regard. We 
note that, in EC – Seal Products , the Appellate Body considered in respect of Article XX of the 
GATT 1994 that "a measure's contribution is … only one component of the necessity calculus under Article XX", and that "whether a measure is 'necessary' cannot be determined by the level of 
contribution alone, but will depend on the manner in which the other factors of the necessity 
analysis, including a consideration of potential alternative measures, inform the analysis."
649 The 
Appellate Body continued that "the very utility of examining the interaction between the various 
factors of the necessity analysis, and conducting a comparison with potential alternative measures, 
is that it provides a means of testing these factors as part of a holistic weighing and balancing exercise, whether quantitative or qualitative in nature."
650 We consider this relevant for the 
analysis called for under Article 2.2 of the TBT Agreement. The weighing and balancing of the 
relevant factors both in respect of the challenged technical regulation and in the comparison with 
proposed alternative measures involves a holistic analysis in order to reach an overall conclusion on claims under Article 2.2. A panel should proceed with this weighing and balancing even if a 
particular factor under Article 2.2, such as the challenged technical regulation's degree of 
contribution to its objective, cannot be quantified with precision or can only be assessed in qualitative terms. 
5.212.  Having addressed the relevant factors pertaining to the technical regulation itself, we now 
make some observations on the factors pertaining  to the comparison with alternative measures 
contemplated under Article 2.2, as relevant to th e case before us. As we have already noted, the 
comparative character of Article 2.2 is grounded in its text, namely, the use of the term " more … 
than necessary", in addition to the context affo rded by Article 2.3 of the TBT Agreement. 
Accordingly, the Appellate Body has clarified that Article 2.2 does not prohibit any or all trade-restrictiveness, but is, instead, intended to impugn "unnecessary obstacles" to trade and 
restrictions on international trade that "exceed what is necessary" to achieve the degree of 
contribution that a technical regulation makes to the achievement of a legitimate objective.
651 
Thus, the Appellate Body has stated that "the  existence of an 'unnecessary obstacle[] to 
international trade' in the first sentence [of Article 2.2] may be established on the basis of a 
comparative  analysis".652  
                                               
645 Appellate Body Reports, EC – Seal Products , para. 5.228. (emphasis original) 
646 Appellate Body Reports, EC – Seal Products , para. 5.228.  
647 Appellate Body Reports, EC – Seal Products , para. 5.228 (quoting Panel Reports, EC – Seal Products , 
paras. 7.460 and 7.638, respectively). (emphasis added) 
648 Appellate Body Reports, Brazil – Retreaded Tyres , para. 145; EC – Seal Products , para. 5.211. 
649 Appellate Body Reports, EC – Seal Products , para. 5.215.  
650 Appellate Body Reports, EC – Seal Products , para. 5.215. (fn omitted) 
651 Appellate Body Reports, US – Tuna II (Mexico) , para. 319; US – COOL , para. 375. 
652 Appellate Body Reports, US – Tuna II (Mexico) , para. 320; US – COOL , para. 376. (emphasis added) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.213.  For these reasons, a complainant may seek to identify a possible alternative measure that 
is less trade restrictive, makes an equivalent contribution to the relevant objective, and is reasonably available, as part of making its prima facie  case that a technical regulation is more 
trade restrictive than necessary.
653 As we have mentioned above, there may be circumstances 
where a comparative analysis of this nature may be unnecessary under Article 2.2.654 In our view, 
however, given that an alternative measure proposed by a complainant functions as a "conceptual tool" to illustrate that a technical regulation is more trade restrictive than necessary, once an 
alternative measure has been proposed by the complainant, it should be considered by a panel in 
the overall weighing and balancing under Article 2.2.
655 
5.214.  We recall that, where a comparison is undertaken under Article 2.2, relevant factors to 
consider include whether the proposed alternative is less trade restrictive, whether it would make 
an equivalent contribution to the legitimate objective at issue, "taking account of the risks 
non-fulfilment would create", and whether it is reasonably available.656 As we have noted above, 
an assessment of whether a proposed alternative measure achieves an equivalent  degree of 
contribution to the relevant legitimate objective is essential for a panel to determine whether the 
technical regulation at issue restricts international trade beyond what is necessary for that technical regulation to achieve the degree of contribution that it makes to a legitimate objective.
657 
The need for the equivalence of the respective de grees of contribution as between the challenged 
technical regulation and proposed alternative measures also comports with the principle reflected in the sixth preambular recital of the TBT Agreem ent – that a Member shall not be prevented from 
pursuing a legitimate objective "at the levels it considers appropriate".
658  
5.215.  We do not consider that a complainant must demonstrate that its proposed alternative 
measure achieves a degree of contribution identical  to that achieved by the challenged technical 
regulation in order for it to be found to achieve an equivalent  degree. Rather, in our view, there is 
a margin of appreciation in the assessment of whether a proposed alternative measure achieves 
an equivalent degree of contribution, the contours of which may vary from case to case. For instance, in assessing the equivalence of the respec tive degrees of contribution, such a margin of 
appreciation can be informed by the risks that non-fulfilment of the technical regulation's objective 
would create, in particular, it may be affected by the nature of the risks and the gravity of the consequences arising from the non-fulfilment of the technical regulation's objective. This stems from the requirement in Article 2.2 that account is to be taken of "the risks non-fulfilment would 
create" in assessing whether a technical regulation is "more trade-restrictive than necessary to 
fulfil a legitimate objective". The assessment of whether a proposed alternative measure achieves an equivalent degree of contribution should also be made in the light of the characteristics of the 
technical regulation at issue as revealed through its design and structure, as well as the nature of 
the objective pursued and the nature, quantity, and quality of the evidence available. We 
emphasize, in this respect, that a proposed alternative measure may achieve an equivalent degree 
of contribution in ways different from  the technical regulation at issue. 
5.216.  We note that there may be instances where it is difficult to assess with precision whether 
there is equivalence between the technical regula tion's degree of contribution and that of a 
proposed alternative measure. For instance, as in the present case, a technical regulation and the 
proposed alternative measures may deploy various methods or techniques that jointly or 
separately contribute to achieving the objective pursued, which may not each be quantifiable in an isolated manner.
659 For the purpose of assessing the equivalence between the respective degrees 
of contribution of the challenged technical regulation and the proposed alternative measures, it is 
the overall  degree of contribution that the technical regulation makes to the objective pursued that 
                                               
653 Appellate Body Reports, US – Tuna II (Mexico) , para. 323; US – COOL , para. 379. 
654 Appellate Body Reports,  US – Tuna II (Mexico) , fn 647 to para. 322; US – COOL , fn 748 to 
para. 376. 
655 Appellate Body Reports, US – COOL , para. 469 and fn 749 to para. 376.  
656 Appellate Body Report, US – Tuna II (Mexico) , para. 322. 
657 Appellate Body Reports, US – COOL , para. 461. 
658 See Appellate Body Reports, US – COOL , para. 373. As we have noted above, the level a Member 
"considers appropriate", as referred to in the sixth preambular recital of th e TBT Agreement, is usually revealed 
in the degree of contribution that a technical regulation actually  makes to its objective under Article 2.2. 
659 See e.g. Appellate Body Report, Brazil – Retreaded Tyres , para. 151. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 is relevant, rather than any individual isolated aspect or component of contribution.660 We 
recognize that a panel may encounter practical difficulties in assessing the overall degree of contribution made by a technical regulation, and in comparing whether a proposed alternative measure makes an equivalent degree of contribution. Some imprecision in assessing the 
equivalence of the respective degrees of contribu tion of a technical regulation and a proposed 
alternative may be inevitable in certain circumstances. However, such imprecision should not, in and of itself, relieve a panel from its duty to assess the equivalence of the respective degrees of 
contribution. In spite of such imprecision, a panel should proceed with the overall weighing and 
balancing under Article 2.2.
661 
5.217.  Article 2.2 of the TBT Agreement  further stipulates that the risks non-fulfilment of the 
objective would create shall be taken into account. In US – Tuna II  (Mexico) , the Appellate Body 
found that the obligation to "tak[e] account of the risks non-fulfilment would create" suggests that 
the comparison of the challenged measure with a possible alternative measure should be made in 
the light of the nature of the risks at issue and the gravity of the consequences that would arise 
from non-fulfilment of the legitimate objective.662 I n  o u r  v i e w ,  i n  o r d e r  t o  e n g a g e  i n  t h i s  
assessment and ensure that this factor is "tak[e n] account of", the nature of the risks and the 
gravity of the consequences that would arise from non-fulfilment would themselves, in the first 
place, need to be identified.  
5.218.  We note that Article 2.2 does not prescribe further a particular methodology for assessing 
"the risks non-fulfilment would create" or define how they should be "tak[en] account of". However, in the context of Article XX of the GA TT 1994, the Appellate Body has recognized that 
risks may be assessed in either qualitative or quantitative terms.
663 Some kinds of risks might not 
be susceptible to quantification664, and some types of risk assessment methods might not be of 
assistance in respect of particular kinds of objectives listed in Article XX of the GATT 1994.665 In 
order to take account of "the risks non-fulfilment would create" under Article 2.2 of the 
TBT Agreement, in some contexts, it might be possible and appropriate to seek to determine 
separately the nature of the risks, on the one hand, and to quantify the gravity of the 
consequences that would arise from non-fulfilment , on the other hand. In other contexts, however, 
it might be difficult, in practice, to determine or quantify those elements separately with precision. 
In such contexts, it may be more appropriate to conduct a conjunctive analysis of both the nature of the risks and the gravity of the consequences of non-fulfilment, in which "the risks 
non-fulfilment would create" are assessed in qualitative terms. In any case, difficulties or 
imprecision that arise in assessing "the risks non-fulfilment would create" – due to the nature of the relevant risks or the gravity of the consequences  of non-fulfilment at issue – should not, in and 
of themselves, relieve a panel from its duty to assess this factor. A panel should proceed further 
with a holistic weighing and balancing of all relevant factors, and reach an overall conclusion under Article 2.2. We recall, in this respect, that the te xt of Article 2.2 requires "taking account of" such 
risks. In our view, the term "taking account of" ca lls for the active and meaningful consideration of 
"the risks non-fulfilment would create", even where there is imprecision as to the nature and magnitude of such risks, in the weighing and bala ncing under Article 2.2 of the TBT Agreement. At 
the same time, the manner of such consideration is adaptable to the particularities of a given 
case.
666 
                                               
660 In stating this, we do not exclude that there may be aspects of a technical regulation that may be 
manifestly immaterial in a given case in  the light of the specific products, proc esses, or labels at issue, or that 
a technical regulation may operate as part of a more  complex suite of measures directed at the same 
objective. (See Appe llate Body Report, Brazil – Retreaded Tyres , para. 151) 
661 See Appellate Body Reports, EC – Seal Products , para. 5.215. 
662 Appellate Body Report, US – Tuna II (Mexico) , para. 321. 
663 See e.g. Appellate Body Report, EC – Asbestos , para. 167. 
664 Appellate Body Report, EC – Asbestos , para. 167. 
665 See e.g. Appellate Body Reports, EC – Seal Products , para. 5.198. 
666 See e.g. Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1620; US – 
Continued Suspension , para. 7.480; US – Clove Cigarettes , paras. 7.632-7.633; and Japan – Apples , 
para. 8.241. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.2.2  Claims of error with respect to the legal test for "more trade-restrictive than 
necessary" under Article 2.2 of the TBT Agreement 
5.219.  We now turn to the requests of Canada and Mexico that we find that the Panel erred in the 
legal test it applied in assessing whether the amended COOL measure is "more trade-restrictive 
than necessary" under Article 2.2 of the TBT Agreement.  
5.220.  Mexico claims that the Panel erred in stating that a "comparative analysis" would be 
redundant "only in exceptional circumstances", and in concluding that such "exceptional 
circumstances" must be demonstrated before any "overall" conclusions with respect to Article 2.2 
may be drawn from the "relational" analysis.667 Canada claims that the Panel erred by failing to 
articulate correctly the "relational" component of the analysis under Article 2.2, namely, by failing to indicate that it would assess the three relevant factors pertaining to the amended COOL 
measure separately, and then " in relation to each other ", and, consequently, by failing to describe 
how these factors are to be weighed and balanced against each other under the "relational" analysis.
668 Further, and relatedly, Canada claims that the Panel erred by not clarifying that the 
"comparative" analysis does not necessarily prevail over the "relational" analysis.  
5.221.  The United States argues that, contrary to the claims of Canada and Mexico, the amended 
COOL measure is not more trade restrictive than necessary under Article 2.2. In the United States' 
view, since it is uncontested that the amended COOL measure is trade restrictive and that it 
makes some contribution to its objective, demonstrating the existence of a less trade-restrictive alternative that is reasonably available and makes an equivalent degree of contribution is a necessary part of the complainants' burden of proof under Article 2.2.
669 
5.222.  We begin our assessment by analysing these claims on appeal and, in particular, by 
analysing the understanding of the legal test und er Article 2.2 of the TBT Agreement on which 
Canada's and Mexico's claims are predicated. 
5.223.  As we understand it, Canada and Mexico consider the legal test under Article 2.2 to be 
separated into two components. The first component is a "relational" analysis of three factors in respect of the technical regulation at issue itself, namely, its degree of contribution to its objective, 
its trade-restrictiveness, and the risks non-fulfilment would create.
670 We note that the participants 
clarified at the oral hearing that they have differing understandings of the term "'relational' analysis". Canada and Mexico consider it to refer to an assessment of the technical regulation at issue itself, before proceeding to a comparison with an alternative. By contrast, the United States 
considers it to refer to the holistic weighing and balancing under Article 2.2, which includes a 
comparison with an alternative.  
5.224.  Based on Canada's and Mexico's understanding of Article 2.2, the "relational" analysis 
constitutes the first component of the legal test, under which the factors pertaining to the technical 
regulation at issue should first be ascertained, and then weighed and balanced in relation to one 
another.
671 In Mexico's view, a "provisional" conclusion should be drawn from the "relational" 
analysis on the "necessity" of the challenged te chnical regulation, while a comparison with an 
alternative would also normally need to be undertaken to confirm this conclusion and reach an overall finding.
672 In Canada's view, a panel could, in principle, conclude at the end of the 
"relational" analysis that a technical regulation is more trade restrictive than necessary, but it 
should normally also consider any alternative measure identified by the complainant before 
reaching a conclusion on its "necessity".673 
                                               
667 Mexico's other appellant' s submission, para. 45 (quoting Panel Reports, para. 7.298). See also Panel 
Reports, paras. 7.301-7.303. 
668 Canada's other appellant's submissi on, paras. 92-93. (emphasis original) 
669 United States' appellee's submission, paras. 54-67. 
670 Canada's other appellant's subm ission, para. 25; Mexico's other appellant's submission, para. 40. 
671 Canada's other appellant's subm ission, para. 26; Mexico's other appellant's submission, para. 46. 
672 Mexico's response to qu estioning at the oral hearing. We note  that, in this regard, Mexico argued 
initially in its written submission on appeal that, following the weighing and balancing under the "relational" analysis, a conclusion must also be dr awn as to the necessity of the techni cal regulation before proceeding, if 
still necessary, to a comparison with proposed alte rnative measures. (See Mexico's other appellant's 
submission, paras. 46-47) 
673 Canada's other appellan t's submission, para. 24. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.225.  The second component of the legal test in assessing whether a technical regulation is more 
trade restrictive than necessary is, for Canada and Mexico, a "comparative" analysis. This involves a comparison of the trade-restrictiveness of the te chnical regulation at issue, and the degree of 
achievement of its objective, with that of reason ably available alternative measures that are less 
trade restrictive than the challenged technical regulation, taking account of "the risks 
non-fulfilment would create".
674 For Mexico, the function of such a "comparative" analysis is to 
confirm the preliminary conclusion under the "relational" analysis that the technical regulation at 
issue is necessary. For Canada, the function of such a "comparative" analysis is to serve as a 
"conceptual tool" to assist in determining whether the measure is more trade restrictive than necessary.
675 It does not, however, supplant the "relatio nal" analysis, and a failure to identify an 
alternative measure that achieves an equivalent degree of contribution to the technical regulation's 
objective should not be dispositive in the overall weighing and balancing under Article 2.2.676 
5.226.  It is on the basis of this understanding of  the legal test under Article 2.2, namely, that it 
engages two separate components, each requiring the drawing of certain conclusions or the 
weighing and balancing of certain factors at particular stages, that Canada and Mexico make their 
respective claims.  
5.227.  We recall our interpretation above of Arti cle 2.2 of the TBT Agreement. In our view, an 
assessment of whether a technical regulation is more trade restrictive than necessary under 
Article 2.2 ultimately involves the holistic  weighing and balancing of all relevant factors. Article 2.2 
does not explicitly prescribe, in rigid terms, the sequence and order of analysis in assessing whether the technical regulation at issue is "more trade-restrictive than necessary".
677 That 
notwithstanding, a certain sequence and order of analysis may logically flow from the nature of the 
examination under Article 2.2.  
5.228.  This sequence and order is discernible both in the Appellate Body's past analyses in 
respect of Article 2.2 of the TBT Agreement678 and in the relevant jurisprudence relating to 
Article XX of the GATT 1994 and Article XIV of the GATS.679 In particular, the Appellate Body in 
China – Publications and Audiovisual Products , having reviewed the approaches to the "necessity" 
analysis in US – Gambling , Brazil – Retreaded Tyres , and Korea – Various Measures on Beef , 
considered that those approaches "recognize[d] that  a comprehensive analysis of the 'necessity' of 
a measure is a sequential process" that "must logically begin with a first step, proceed through a number of additional steps, and yield a final conclusion."
680 We take a similar view in respect of 
the sequence and order of analysis under Article 2.2 of the TBT Agreement. 
5.229.  Nonetheless, as we have elaborated above,  the particular manner of sequencing the steps 
of this analysis is adaptable, and may be tailored to the specific claims, measures, facts, and 
arguments at issue in a given case. Accordingly, pane ls are afforded a certain degree of latitude to 
tailor the sequence and order of analysis in a given case when assessing the relevant factors and conducting the overall weighing and balancing under Article 2.2. This latitude, however, is not 
boundless.
681 Rather, it is informed by the specific claims, measures, facts, and arguments at 
issue, as mentioned above. For instance, while the particular circumstances of a given case may call for "preliminary conclusions" on the necessity  of the trade-restrictiveness of the challenged 
measure before proceeding to a comparison with an alternative
682, such preliminary 
                                               
674 Canada's other appellant's submission, para. 37; Mexico's other appellant's submission, para. 112. 
675 Canada's other appellant' s submission, para. 37 (quoti ng Appellate Body Report, US – Tuna II 
(Mexico) , paras. 320 and 322). 
676 Canada's other appellant's subm ission, para. 53; Mexico's other appellant's submission, para. 49. 
677 Appellate Body Report, US – Tuna II (Mexico) , fn 643 to para. 318 (referring to Appellate Body 
Reports, Brazil – Retreaded Tyres , para. 178; and US – Gambling , paras. 306-308). 
678 Appellate Body Reports, US – Tuna II (Mexico) , paras. 327-329; US – COOL , paras. 472-479. 
679 See Appellate Body Reports, US – Tuna II (Mexico) , para. 320. The Appellate Body drew an analogy 
with the analysis of "necessity" in the context of Ar ticle XX of the GATT 1994 and Article XIV of the GATS, in 
which a measure found to be inconsistent with a rele vant obligation is to be compared with reasonably 
available less trade-restrictive alternative measures. (Appellate Body Report,  US – Tuna II (Mexico) , fn 645 to 
para. 320 (referring to Appellate Body Report, Korea – Various Measures on Beef , para. 166)) 
680 Appellate Body Report, China – Publications and Audiovisual Products , para. 242 (referring to 
Appellate Body Reports, US – Gambling , paras. 306-307; Korea – Various Measures on Beef , para. 166; and 
Brazil – Retreaded Tyres , paras. 156 and 178). 
681 Appellate Body Reports, Brazil – Retreaded Tyres , para. 145; EC – Seal Products , para. 5.211. 
682 Appellate Body Report, Brazil – Retreaded Tyres , paras. 156. See also Appellate Body Report, China 
– Publications and Audiovisual Products , para. 248. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 determinations are not mandatory, and may not be appropriate in the circumstances of other 
cases.683 Therefore, an appellant challenging the se quence and order of analysis adopted by a 
panel in a given case must demonstrate why, by following a particular sequence, the panel committed an error in the specific circumstances of the case at hand. It is not sufficient for an 
appellant merely to claim that a panel erred by deviating from a certain sequence and order of 
analysis in the abstract.  
5.230.  With these considerations in mind, we assess the relevant findings and conclusions of the 
P a n e l  i n  t h i s  c a s e  t h a t  a r e  r e l e v a n t  t o  t h e  s p e c i f i c  c l a i m s  o f  e r r o r  b y  C a n a d a  a n d  M e x i c o  w i t h  
respect to the sequence and order of the Panel's analysis under Article 2.2 of the TBT Agreement. In respect of whether it should take into consideration the possible alternative measures proposed by Canada and Mexico in the weighing and balancing under Article 2.2, the Panel stated: 
Our reading of the relevant Appellate Body statements suggests that a "comparative 
analysis" would be redundant only in exceptional circumstances where consistency or inconsistency with Article 2.2 may be deduced by looking solely at certain aspects of 
the challenged measure. Mexico has not explained why the Panel is faced with such 
exceptional circumstances in this case. In particular, Mexico does not argue that the amended COOL measure falls into either of the two exceptional scenarios identified by 
the Appellate Body; rather, Mexico contends that amended COOL measure represents 
a third scenario under which it should be found inconsistent without looking at alternatives. However, Mexico fails to identify what this third exceptional scenario entails in the context of the amended COOL measure.
684 
5.231.  As we have mentioned above, given that an alternative measure proposed by a 
complainant functions as a "conceptual tool" to illustrate that a technical regulation is more trade restrictive than necessary, once an alternative measure has been proposed by the complainant, it 
should be considered by a panel in the overall weighing and balancing under Article 2.2.
685 
However, we note that, in certain cases, a comp arison with proposed alternatives may be of 
limited value.686 In this regard, Mexico argues that, under the Panel's interpretation, the 
"relational" analysis component of the necessity test under Article 2.2 was "erroneously 
narrow[ed] … to a determination of whether 'exceptional circumstances' exist".687 The 
Appellate Body has stated that the weighing and balancing under Article 2.2 will involve a comparison with proposed alternatives "[i]n most cases".
688 The Panel did not exclude the 
possibility that a conclusion could be reached under Article 2.2 in the absence of a comparison with 
proposed alternatives. Nor did the Panel state that the circumstances identified by the Appellate Body in past cases in which a comparison with alternatives is not required are 
exhaustive.
689 Rather, the Panel considered that Mexico "f ail[ed] to identify" why, in the particular 
circumstances of this case, the necessity of the amended COOL measure could be established in the absence of a comparison with the proposed alternatives.
690 In our view, as both Canada and 
Mexico proposed alternative measures in order to make their prima facie  case under Article 2.2, 
and in the light of the holistic nature of the weig hing and balancing under that provision, the Panel 
was correct in conducting a "comparative" analysis of the proposed alternative measures. 
                                               
683 Appellate Body Reports, EC – Seal Products , fn 1299 to para. 5.215. 
684 Panel Reports, para. 7.298. 
685 Appellate Body Reports, US – Tuna II (Mexico) , para. 323; US – COOL , fn 749 to para. 376. We note 
that, in the original proceedings, the Appellate Body found that, by not undertaking a comparison with the 
alternative measures proposed by Mexico and Canada, the original panel erroneously relieved Mexico and 
Canada of the burden to prove, on the basis of the co mparison with the proposed alternative measures, that 
the original COOL measure was more trade restri ctive than necessary. (A ppellate Body Reports, US – COOL , 
para. 469) 
686 Appellate Body Reports,  US – Tuna II (Mexico) , fn 647 to para. 322; US – COOL , fn 748 to 
para. 376. 
687 Mexico's other appellan t's submission, para. 39. 
688 Appellate Body Reports,  US – Tuna II (Mexico) , para. 322; US – COOL , para. 376. (emphasis added) 
689 Panel Reports, para. 7.298. 
690 Panel Reports, para. 7.298. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.232.  In respect of the points or stages at which to draw conclusions or engage in the weighing 
and balancing of different factors, the Panel considered in relation to the original proceedings that: 
[t]he Appellate Body did not draw any conclusions on Article 2.2 consistency at the 
end of its "relational analysis". The Appellate Body called this a "preliminary 
assessment" of the original COOL measure, and "proceed[ed] to examine the 
alternative measures proposed by [the complainants] … to complete  [its] assessment 
of whether the COOL measure was 'more trad e-restrictive than necessary to fulfil a 
legitimate objective'."691 
5.233.  Thus, in the Panel's view, the Appellate Body in the original proceedings "undertook the 
'comparative analysis' before trying to draw 'overall' conclusions with regard to Article 2.2".692 In 
the light of that understanding, the Panel determined to: 
… do the same, and draw conclusions as to the consistency of the amended COOL 
measure with Article 2.2 of the TBT Agreement only after having considered all relevant factors. Like the Appellate Body in both US – Tuna II (Mexico) and the 
original US – COOL dispute, we address the following six factors before reaching an 
overall conclusion on the complainants' Article 2.2 claims: 
a. the amended COOL measure's degree of contribution to a legitimate objective; 
b. the trade-restrictiveness of the amended COOL measure; 
c. the nature of the risks at issue and the gravity of consequences that would arise 
from non-fulfilment of the objective pursued by the United States through the amended COOL measure; 
d. whether the alternatives proposed by the complainants are less trade restrictive 
than the amended COOL measure; 
e. whether the proposed alternatives would make an equivalent contribution to the 
relevant legitimate objective, taking account of the risks non-fulfilment would 
create; and 
f. whether the proposed alternatives are reasonably available.
693 
5.234.  In addressing the first three factors, the Panel conducted what it termed a "'relational' 
analysis" that led it to conclude that: (i) the amended COOL measure pursues a legitimate objective and contributes to the fulfilment of this objective to a considerable but necessarily partial degree; (ii) the amended COOL measure ha s increased the "considerable degree of 
trade-restrictiveness" found by the Appellate Body in the original disputes; and (iii) the nature of 
the risks and consequences of not fulfilling the amended COOL measure's objective are that consumers would not receive meaningful information on the origin of the covered products and 
would, therefore, be misinformed, confused, or not informed at all.
694 However, the Panel was 
unable to ascertain the gravity of these conseque nces of non-fulfilment of the amended COOL 
measure's objective.695 Having arrived at these conclusions in respect of the relevant factors 
pertaining to the amended COOL measure itself, the Panel proceeded to conduct a "comparative" 
analysis of the amended COOL measure with the complainants' four proposed alternative measures. The Panel found that the complainants had not made a prima facie case that any of 
these alternatives demonstrate that the amended COOL measure is more trade restrictive than 
necessary within the meaning of Article 2.2 of the TBT Agreement.
696 
                                               
691 Panel Reports, para. 7.301 (quoting Appellate Body Reports, US – COOL , para. 479). (emphasis 
added by the Panel) 
692 Panel Reports, para. 7.302 (quoting Appellate Body Reports, US – COOL , para. 491). 
693 Panel Reports, para. 7.303 (referring to Appellate Body Reports, US – Tuna II (Mexico) , para. 322; 
and US – COOL , paras. 471-491). 
694 Panel Reports, paras. 7.417, 7.611, and 7.612. 
695 Panel Reports, paras. 7.418 and 7.424. 
696 Panel Reports, para. 7.612. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.235.  As we have stated above, a certain sequence and order of analysis may logically flow from 
the nature of the examination under Article 2.2. Th is sequence and order is discernible both in the 
Appellate Body's past analyses in respect of Article 2.2 of the TBT Agreement697 and in the 
relevant jurisprudence relating to Article XX of the GATT 1994 and Article XIV of the GATS.698 That 
notwithstanding, the particular manner for conducting this analysis is adaptable, and may be 
tailored to the specific claims, measures, facts, and arguments at issue in a given case.699 With 
these considerations in mind, and without prejudice to our findings below on specific aspects of the 
Panel's analysis that are the subject of separate and more specific claims on appeal, we do not 
consider that Canada and Mexico have demonstrated that, in the particular circumstances of the present case, the sequence and order of analysis  chosen by the Panel was outside the bounds of 
its latitude to tailor, to the case before it, its approach to the overall weighing and balancing 
required under Article 2.2. As the Appellate Body has found in respect of Article XX of the 
GATT 1994, it is likewise not mandatory in respect of Article 2.2 of the TBT Agreement for a panel to draw a preliminary conclusion on "necessity" based on the factors with respect to the technical 
regulation itself before engaging further in a comparison with proposed alternative measures.
700  
5.236.  In the light of both the degree of latitude afforded to panels to tailor the sequence and 
order of analysis for assessing "necessity" to the specific claims, measures, arguments, and facts 
at issue in a given case, as well as the concomitant requirement on an appellant to demonstrate 
why, by following that particular sequence and or der of analysis, a panel committed an error in the 
context of the case at hand, we find, in respect of Canada's claims, that the Panel did not err: 
(i) by failing to articulate correctly, in paragrap hs 7.301-7.303 of the Panel Reports, the relational 
component of the analysis under Article 2.2 of the TBT Agreement; (ii) by failing to describe, in 
paragraphs 7.301-7.303 of the Panel Reports, how the relevant factors are to be weighed and balanced against each other under the "relational" analysis; and (iii) by failing to clarify, in 
paragraphs 7.297-7.299 of the Panel Reports, that the "comparative" analysis does not necessarily 
prevail over the "relational" analysis. For the same reasons, we find, in respect of Mexico's claims, 
that the Panel did not err, in paragraph 7.298 of th e Panel Reports, in stating that "a 'comparative 
analysis' would be redundant only in exceptional circumstances", and in concluding, in paragraphs 
7.301-7.303 and 7.424 of the Panel Reports, that  such "exceptional circumstances" must be 
demonstrated before any "overall" conclusions with respect to Article 2.2 may be drawn from the "relational" analysis. These findings are without prejudice to the separate and more specific claims 
of error in respect of particular aspects of the Panel's analysis under Article 2.2 of the 
TBT Agreement, to which we now turn. 
5.2.3  Claims of error with respect to the Panel's finding on the amended COOL 
measure's degree of contribution to its objective 
5.237.  Canada and Mexico request that we reverse the Panel's finding that the amended COOL 
measure makes a "considerable but necessarily partial" contribution to its objective.
701 Their 
claims and arguments differ in relation to their respective requests. Canada claims that the Panel 
erred by omitting to take into account Label D (including the incomplete character of the information conveyed by that label) and Label E (including the propensity of that label to convey inaccurate origin information) in ascertaining the amended COOL measure's degree of contribution 
to its objective.
702 Canada further claims that, by failing to characterize properly the degree of the 
amended COOL measure's coverage for the purposes of determining its degree of contribution, the Panel acted inconsistently with its duty under Article 11 of the DSU.
703 Mexico claims that the 
Panel erred by failing to include Label E in ascertaining the amended COOL measure's degree of 
contribution to its objective on the basis that Label E is an "integral component" of the amended COOL measure.
704 
                                               
697 Appellate Body Reports, US – Tuna II (Mexico) , paras. 327-329; US – COOL , paras. 472-479. 
698 See Appellate Body Report, US – Tuna II (Mexico) , para. 320 and fn 645 thereto.  
699 See e.g. Appellate Body Report, China – Publications and Audiovisual Products , para. 247. 
700 Appellate Body Reports, EC – Seal Products , fn 1299 to para. 5.215. 
701 Canada's other appellant's su bmission, paras. 81-90; Mexico's other appellant's submission, 
paras. 52-61 (both referring to Panel Reports, para. 7.356). 
702 Canada's other appellant's submission, paras. 82 and 88. 
703 Canada's other appellant' s submission, paras. 88-89. 
704 Mexico's other appellan t's submission, para. 53. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.238.  For its part, the United States argues that the claims of Canada and Mexico are premised 
on the misunderstanding that Article 2.2 of th e TBT Agreement requires two separate analyses, 
namely, a "relational" analysis and a "comparative" analysis.705 Instead, the United States 
contends that Article 2.2 comprises one analysis requiring the demonstration that an alternative 
measure exists that is less trade restrictive, makes an equivalent contribution to the relevant 
objective, and is reasonably available. Thus, the Panel correctly sought to ensure that the same scope was used for the measure and the proposed alternatives to enable a proper comparison.
706 
For the United States, the Panel could only make an appropriate comparison by either including 
Labels D and E in both sides of the comparison  or excluding them from both sides of the 
comparison.707 
5.239.  We begin by addressing the correct scope for the assessment of the degree of contribution 
of a measure to its objective. In our view, a technical regulation should, in principle, be reviewed 
in its entirety in order to assess its degree of contribution to its objective. We note that paragraph 1 of Annex 1 to the TBT Agreement defines a "technical regulation", in relevant part, as 
a "[d]ocument  which lays down product characteristics or their related processes and production 
methods".
708 It is, thus, the "document" constituting the technical regulation that should be 
assessed under Article 2.2, rather than isolated or disconnected portions of that document. We 
note, in this regard, the statement of the Appellate Body in US – Tuna II (Mexico) that a "panel 
adjudicating a claim under Article 2.2 of the TB T Agreement must seek to ascertain to what 
degree, or if at all, the challenged technical regulation , as written and applied, actually contributes 
to the legitimate objective pursued by the Member."709 In assessing the relevant document 
constituting the technical regulation at issue under Article 2.2, the elements contained within it 
that contribute to the objective of the technical regulation should first be identified, with all of those elements then being taken into account when assessing the degree of contribution of the 
technical regulation to its objective.
710 Otherwise, to exclude certain elements from that 
assessment could yield an incorrect finding as to the technical regulation's degree of contribution to its objective, and could lead to an imbalance or asymmetry in a comparison with proposed 
alternatives.
711  
5.240.  With those considerations in mind, we turn to the relevant findings of the Panel relating to 
the assessment of the degree of contribution of the amended COOL measure to its objective and, 
in particular, to the Panel's statements concerni ng the relevance of Label D and Label E for the 
assessment of the degree of contribution. The Panel considered that, "[i]n principle, Label D 
(muscle cuts from foreign-slaughtered animals) and Label E (ground meat) could potentially be relevant for [its] assessment of Article 2.2 – including for the amended COOL measure's degree of 
contribution".
712 However, the Panel considered that "the complainants have unequivocally stated 
that in this compliance dispute they are not bringing claims with respect to Labels D and E" and, further, that "the alternative measures they have proposed under Article 2.2 specifically apply only  
to US-slaughtered muscle cuts that would be eligible for Labels A-C."
713 Since the complainants 
provided "no indication of how the conclusions from a relational analysis based on all  distinctions 
of the amended COOL measure could be meanin gfully compared to alternative measures 
pertaining only to Labels A-C"714, the Panel expressed a concern that including Labels D and E in 
its assessment of the contribution of the amended COOL measure to its objective might result in 
"an improper comparison" with the proposed alternatives.715 Accordingly, the Panel declined to 
examine in its contribution assessment those aspects of the amended COOL measure, including 
Labels D and E, that the complainants did not ch allenge in the Panel proceedings, and that the 
complainants excluded from their arguments under the comparative analysis.716 Ultimately, the 
                                               
705 United States' appellee's submission, para. 76. 
706 United States' appellee's submission, para. 76. 
707 United States' appellee's submission, para. 77. 
708 Emphasis added. We note that a "document" may comprise multiple legal instruments in a given 
circumstance. 
709 Appellate Body Report, US – Tuna II (Mexico) , para. 317. (fn omitted; emphasis added) 
710 See supra , fn 660 to para. 5.216. 
711 See e.g. Appellate Body Report, US – Tuna II (Mexico) , paras. 328-331. 
712 Panel Reports, para. 7.344. 
713 Panel Reports, para. 7.344. (fns omitted) 
714 Panel Reports, para. 7.344. (fns omitted) 
715 Panel Reports, para. 7.345 (quoting Appellate Body Report, US – Tuna II (Mexico) , para. 328). 
716 Panel Reports, para. 7.345. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Panel concluded that the amended COOL measure makes a considerable but necessarily partial 
contribution to its objective of providing consumer information on origin.717 
5.241.  We agree with the Panel that it is important to ensure a conceptual alignment between a 
challenged technical regulation and proposed altern atives in assessing their respective degrees of 
contribution in order to preserve the integrity of the subsequent comparison. However, we also 
emphasize the importance of assessing the relevant factors in respect of a challenged technical regulation and proposed alternatives in their entireties. In our view, a challenged technical 
regulation should be considered in its entirety even when particular elements of the technical 
regulation are common to both the technical regu lation and the proposed alternative measures. 
This is because the manner in which such common elements interact with other elements of a 
challenged technical regulation or other elements of the proposed alternatives, respectively, may 
differ. Hence, even if such common elements are excluded from the assessment of the 
contribution of both the technical regulation and the proposed alternatives, this may distort the 
result of that assessment. In that context, we note that Labels D and E are common elements of 
the amended COOL measure and the proposed alternative measures.
718 We note that Labels D 
and E should have been taken into account in the assessment of both the amended COOL measure's degree of contribution and the degree s of contribution achieved by the proposed 
alternatives. Such an approach would have ensured conceptual alignment in the assessment of the 
respective degrees of contribution for the purposes of a comparison. It would also have ensured that all relevant elements of the measure at issue and the proposed alternative measures were properly taken into account in assessing the respective overall degrees of contribution.  
5.242.  Canada and Mexico further argue that, notwithstanding its statement that it would not take 
Labels D and E into account, the Panel nonetheless inadvertently took those elements into account in reaching its ultimate conclusion on the amended COOL measure's degree of contribution to its 
objective.
719 Thus, before reaching a finding on whether the Panel erred in its conclusion on the 
degree of contribution that the amended COOL meas ure made to its objective, we first evaluate 
whether the Panel, in fact, took Labels D and E into account.  
5.243.  We note that the Panel began its assessm ent by seeking to ascertain the proportion of 
muscle cuts that are actually labelled, as oppose d to those that are exempt from the labelling 
requirements. The Panel considered this to be the "initial determinant" of the degree to which the amended COOL measure is capable of fulfilling its objective, since no origin information is 
conveyed on a mandatory basis for muscle cuts falling within the amended COOL measure's three 
exemptions.
720  
5.244.  It was in this context that the Panel noted that the amended COOL measure covers only 
between 33.3% and 42.3% of beef consumed in the United States.721 Conversely, between 57.7% 
and 66.7% of beef consumed in the United Stat es is exempt from carrying a mandatory label 
because it is either sold in a food service establishment, as an ingredient in a processed food item, 
or by an entity not subject to be licensed as a "retailer".722 The Panel considered between 57.7% 
and 66.7% to be a "substantial portion".723  
5.245.  However, the Panel also noted that these figures "correspond to all beef consumed in the 
United States, including Categories A-C, imported muscle cuts (Category D), and ground meat 
(Category E)", and are therefore only "an indica tive approximation of the extent to which the 
exemptions prevent any contribution to the COOL objective".724 The Panel expressly acknowledged 
                                               
717 Panel Reports, para. 7.356. 
718 In this respect, we note the Panel's finding th at the complainants' proposed alternative measures 
would not cover ground meat or mu scle cuts from foreign- slaughtered animals, and would not change the 
amended COOL measure's Labels D and E. (Panel Report s, fn 1247 to para. 7.565 (referring to Canada's and 
Mexico's responses to Panel question Nos. 44 and 47)) 
719 Canada's other appellant's su bmission, paras. 86-88; Mexico's other appellant's submission, 
paras. 58-60. 
720 Panel Reports, para. 7.347. 
721 Panel Reports, para. 7.347. 
722 Panel Reports, para. 7.347. 
723 Panel Reports, para. 7.347. 
724 Panel Reports, fn 786 to para. 7.347. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 that it was "unable to determine the proportion  of exempted products within Categories A-C 
specifically".725  
5.246.  Thus, although the Panel cited percentages that included Labels D and E, it expressly 
stated that such percentages could only function  as an "indicative approximation", rather than 
provide determinative proof, for the very reason that those figures were affected by the inclusion 
of Labels D and E.726 We note that, in its concluding paragraph, the Panel stated: "[W]e find that 
the amended COOL measure contributes to the ob jective of providing consumer information on 
origin to a significant degree for products carrying Labels A-C ."727 We consider this to demonstrate 
that the Panel's analysis was limited to Labels A-C, despite some of the data analysed by the Panel incidentally covering Labels D and E. The Panel then stated that, "[a]t the same time, the amended COOL measure does not make any contribu tion for products exempted from its coverage 
that would otherwise carry such labels ."
728 In our view, the reference to "such labels" suggests 
that the Panel was referring to Labels A-C in this co nsideration. In view of the foregoing, we do not 
consider that the Panel did, in fact, include Labels D and E in reaching its conclusion that the 
amended COOL measure makes a "considerable bu t necessarily partial" contribution to its 
objective. 
5.247.  We recall that, in our view, Labels D and E should have been taken into account in the 
assessment of both the amended COOL measure' s degree of contribution and the degrees of 
contribution that would be achieved by the proposed alternatives. In the light of our conclusion that the Panel did not take those labels into account in that assessment, we find that the Panel 
erred, in paragraph 7.356 of the Panel Reports, by excluding Labels D and E in reaching its 
conclusion that the amended COOL measure makes a "considerable but necessarily partial" 
contribution to its objective. 
5.2.4  Claims of error with respect to the Panel's interpretation and application of the 
phrase "taking account of the risks non-fulf ilment would create" in Article 2.2 of the 
TBT Agreement 
5.248.  Canada, Mexico, and the United States all request us to find that the Panel erred in various 
aspects of its interpretation and application of the phrase "taking account of the risks 
non-fulfilment would create" in Article 2.2 of the TB T Agreement. In this section, we begin with the 
United States' claim on appeal that the Panel erred by interpreting this phrase to mean that either the first or second proposed alternative measure put forward by Canada and Mexico could be 
found to make an equivalent contribution to the amended COOL measure's objective, 
notwithstanding that these alternatives provide less information on origin than the amended measure.
729 We then evaluate the claims of Canada an d Mexico that the Panel erred in the factors 
it took into account in assessing "the risks non-fulfilment would create", before turning to their 
claims that the Panel erred in finding that it could not ascertain the gravity of the consequences of non-fulfilment of the amended COOL measure's objective. Finally, we address the request of 
Canada and Mexico that we find that the Panel erred in concluding that they failed to make a 
prima facie  case that the first and second proposed alternative measures would be able to make 
an equivalent degree of contribution to the am ended COOL measure's objective, and assess their 
request that we complete the legal analysis in that regard. 
5.2.4.1  The United States' claim that the Panel erred in its interpretation of the phrase 
"taking account of the risks non-fulfilment would create"  
5.249.  The United States requests us to find that the Panel erred in its interpretation of the 
phrase "taking account of the risks non-fulfilment would create" in Article 2.2 of the 
TBT Agreement. In particular, the United States claims that the Panel erred in contemplating, on the basis of this phrase, that the first or second proposed alternative measure put forward by 
Canada and Mexico could be found to make a contribution to the amended COOL measure's 
                                               
725 Panel Reports, fn 786 to para. 7.347. 
726 Panel Reports, fn 786 to para. 7.347. 
727 Panel Reports, para. 7.356. (emphasis added) 
728 Panel Reports, para. 7.356. (emphasis added) 
729 United States' appellant's submission, para. 259. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 objective that is equivalent to that of the amended COOL measure, notwithstanding that these 
alternatives provide less information, or less accurate information, on origin to consumers.730 
5.250.  In the United States' view, the phrase "taking account of the risks non-fulfilment would 
create" should be understood as a reflection that a WTO Member takes such risks into account 
when setting its chosen level of fulfilment of th e objective pursued, thus, engaging an assessment 
of the degree of contribution.731 The United States emphasizes that the TBT Agreement makes 
clear that it is within a Member's discretion to determine what legitimate objectives it seeks to 
pursue, and to what degree it wishes to pursue those objectives.732 To permit "the risks non-
fulfilment would create" to lessen the degree of contribution that a proposed alternative would need to achieve in order to find a violatio n would mean to ignore these aspects of the 
TBT Agreement. Thus, it is for the United States to decide the level at which it provides consumer 
information on origin, regardless of whether "the risks non-fulfilment would create" are high or 
low.
733 The United States argues that the Panel erred in suggesting that proposed alternatives that 
make a lesser degree of contribution might be satisfactory comparators on the basis of "the risks 
non-fulfilment would create".734 In the United States' view, for a panel to be able to determine 
whether adjusting one variable or another would adequately "compensate" for making a lower degree of contribution than the Member intends to provide, it would have to analyse the Member's 
domestic interests, expectations, risks, and concerns, thus encroaching in a Member's policy 
space.
735  
5.251.  In response, Canada and Mexico argue that, for the purposes of Article 2.2, a Member's 
right to set its own level of fulfilment, as evidenced through the degree of contribution a measure 
makes to its objective, may be qualified by "taking account of the risks non-fulfilment would 
create".736 They justify this assertion on a number of grounds. In their view, the reference to "the 
levels it considers appropriate" in the preamble of the TBT Agreement is qualified by "otherwise in 
accordance with the provisions of this Agreement", thus subordinating that principle to the terms 
of Article 2.2.737 Further, if "the risks non-fulfilment would create" were already embodied in the 
degree of contribution that a measure achieves in fulfilling its objective, as argued by the 
United States, the express inclusion of that expression would be inutile.738 
5.252.  Before proceeding to assess the Panel's interpretation under appeal and the United States' 
claim of error, we consider it useful to recall briefly pertinent aspects of our interpretation of Article 2.2 set out above.  
5.253.  In particular, we recall that an assessment of whether a proposed alternative measure 
achieves an equivalent  degree of contribution to the relevant legitimate objective is essential for a 
panel to determine whether the technical regulation at issue restricts international trade beyond 
what is necessary to achieve the degree of contribution that it makes to the achievement of a 
legitimate objective.
739 The need for the equivalence of the respective degrees of contribution of 
the challenged technical regulation and proposed alternative measures also comports with the 
principle reflected in the sixth preambular recital of the TBT Agreement that a Member shall not be 
prevented from pursuing a legitimate objective "at the levels it considers appropriate".740  
5.254.  However, as we have elaborated above, we do not consider that a complainant must 
demonstrate that its proposed alternative measure achieves a degree of contribution identical  to 
that achieved by the challenged technical regulation in order for it to be found to achieve an 
equivalent  degree. Rather, in our view, there is a margin of appreciation in the assessment of 
whether a proposed alternative measure achieves an equivalent degree of contribution, whose 
                                               
730 United States' appellant's submission, para. 259. 
731 United States' appellant's submission, para s. 250 and 262; appellee's submission, para. 84. 
732 United States' appellant's submission, paras. 250 and 260. 
733 United States' appellant's submission, para. 262. 
734 United States' appellant's submission, paras. 259-263. 
735 United States' appellant's submission, para. 264. 
736 Mexico's appellee's submission, paras. 102-108; Canada's appellee's submission, paras. 126-129. 
737 Mexico's appellee's submission, para. 106; Canada's appellee's submission, paras. 126-127. 
738 Mexico's appellee's submission, paras. 103-104; Canada's appellee's submission, paras. 122-123.  
739 Appellate Body Reports, US – COOL , para. 461. 
740 Appellate Body Reports, US – COOL , para. 373. As we have noted above, the level a Member 
"considers appropriate" is  usually revealed by the degree of cont ribution that a te chnical regulation actually  
makes to its objective under Article 2.2. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 contours may vary from case to case. In particular, a margin of appreciation in assessing the 
equivalence of the respective degrees of contributi on may be affected by the nature of the risks 
and the gravity of the consequences arising from the non-fulfilment of the technical regulation's 
objective. We further recall that the assessm ent of whether a proposed alternative measure 
achieves an equivalent degree of contribution should also be made in the light of the 
characteristics of the technical regulation at issue as revealed through its design and structure, as 
well as the nature of the objective pursued, and the nature, quantity, and quality of the evidence 
available. In our view, a proposed alternative measure may achieve an equivalent degree of 
contribution in ways different from the technical regulation at issue. 
5.255.  For the purpose of assessing the equivalenc e of the respective degrees of contribution of 
the challenged technical regulation and proposed alternative measures, it is the overall  degree of 
contribution that a technical regulation makes to its objective that is relevant, rather than any 
individual isolated aspect or component of contribution.741 This remains the case even where a 
technical regulation and proposed alternative meas ures may deploy various methods or techniques 
that jointly or separately contribute to achieving the objective, which may not each be quantifiable 
in an isolated manner.742 
5.256.  In the light of these considerations, we now assess the statements of the Panel pertinent 
to the United States' claim of error under appeal. The United States takes issue, in particular, with 
the Panel's statement: 
Ultimately, the complainants have not persuasively demonstrated how the increased 
coverage of their first alternative measure would compensate for less origin 
information provided on Labels A-C under the first alternative measure. Accordingly, 
we find that the complainants have not made a prima facie case that their first 
alternative measure would make an at least equivalent degree of contribution to the 
objective of providing origin information to consumers as does the amended COOL 
measure.743 
5.257.  Although this statement was made in respect of the first proposed alternative measure in 
particular, we note that the Panel applied the same reasoning mutatis mutandis  in respect of the 
second proposed alternative measure.744 The United States understands from this reasoning that 
the Panel contemplated that alternatives providing less specific origin information in the case of the first proposed alternative measure, or less accurate origin information in the case of the 
second proposed alternative measure, could be cons idered to make an equivalent contribution to 
the objective of the amended COOL measure.
745 However, the United States considers neither 
alternatives providing less specific origin information nor alternatives providing less accurate origin 
information to be "compatible with the fundamental premise that it is up to the United States to 
decide at what level it wants to provide consumer information on origin, regardless of whether the 'risks non-fulfilment would create' are high or low, great or small."
746 
5.258.  We note that the above statement of the Panel was, in respect of the first proposed 
alternative measure, premised, in part, on the Panel's preceding consideration: 
Given the potential relevance of risks of non-fulfilment in comparing degrees of 
contribution, we consider that providing less origin information to consumers for a 
significantly wider range of products through a measure like the complainants' first 
alternative measure might achieve an equivalent degree of contribution as the amended COOL measure.
747 
                                               
741 See supra , fn 660 to para. 5.216. 
742 See supra , para. 5.216. See also Appellate Body Report, Brazil – Retreaded Tyres , para. 151. 
743 See also Panel Reports, para. 7.490; and Unit ed States' appellant's submission, para. 263. 
744 Panel Reports, para. 7.503 
745 United States' appellant's submission, para. 261. 
746 United States' appellant's submission, para. 262. 
747 Panel Reports, para. 7.488.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.259.  We further note that the Panel likewise considered in respect of the second alternative 
measure: 
We have explained that in light of the risks, we considered that the first alternative 
measure might achieve an equivalent degree  of contribution as the amended COOL 
measure, by providing less origin information to consumers for a significantly wider 
range of products. In a similar vein, we consider that by providing less accurate  origin 
information to consumers for a significantly wider range of products, the second 
alternative measure might achieve an equivalent degree of contribution as the 
amended COOL measure.748 
5.260.  In addition, the Panel stated that "an alternative measure making a less than equivalent 
contribution  to the legitimate objective in question ca nnot prove a violation of Article 2.2 of the 
TBT Agreement."749 To us, this suggests that the Panel understood that both the first and second 
proposed alternative measures needed to achieve an "equivalent" degree of contribution to the 
amended COOL measure's objective.  
5.261.  The Panel then turned to assess whether these alternative measures proposed by Canada 
and Mexico would make an equivalent degree of contribution to the amended COOL measure's objective. The Panel noted that, under the first alternative measure proposed by Canada and 
Mexico, which essentially provides information on where the animal was slaughtered and extends 
its coverage to food service establishmen ts and retailers that are otherwise exempt
750, less specific 
information would be provided to consumers than under the amended COOL measure and stated that the proposed alternative, therefore, "does no t seem capable of making an actual contribution 
to the objective of providing consumer information on origin at least equivalent  to the actual 
contribution of the amended COOL measure."
751 
5.262.  In respect of the second proposed alternative measure, which essentially uses of the 
ground beef labelling rule (Label E) for Labels A-C and extends the coverage of those labels to the 
products exempt under the amended COOL measure752, the Panel similarly considered that this 
proposed alternative "does not seem capable of making an actual contribution to the objective of 
providing consumer information on origin at least equivalent to the actual contribution of the 
amended COOL measure" because it "would potentially provide less accurate origin information than the amended COOL measure for covered muscle cuts of US-slaughtered animals".
753  
5.263.  For both the first and second proposed alternative measures, the Panel then noted the 
complainants' argument that removing the three exemptions of the amended COOL measure 
should offset the loss of accuracy or specificity in the origin information provided.754 Citing 
jurisprudence of the Appellate Body, the Panel stat ed that "'the risks non-fulfilment would create' 
may be a relevant factor in assessing whether an alternative measure fulfils the legitimate 
objective to an equivalent degree as the challenged measure."755 As we see it, these 
considerations informed the Panel's subsequent consideration that, "[g]iven the potential 
relevance of risks of non-fulfilment in comparing degrees of contribution", the provision of "less 
origin information" or "less accurate origin information" to consumers "for a significantly wider range of products" could, in principle, "achieve an equivalent degree of contribution as the amended COOL measure".
756  
                                               
748 Panel Reports, para. 7.501. (emphasis original; fn omitted) 
749 Panel Reports, para. 7.482. (emphasis added)  
750 See Panel Reports, paras. 7.468-7.471. The additi onal information on where the animal was born 
and raised may be provided under this alternative on a voluntary basis, such that consumers that place value on such information can seek it  out and pay a premium for it.  
751 Panel Reports, para. 7.483. (emphasis added) 
752 Panel Reports, para. 7.492. 
753 Panel Reports, para. 7.500. (emphasis added) 
754 Panel Reports, paras. 7.484 and 7.501. 
755 Panel Reports, para. 7.487 (referring to Appellate Body Reports, US – Tuna II (Mexico) , para. 321; 
and US – COOL , paras. 377 and 471). 
756 Panel Reports, paras. 7.488 and 7.501. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.264.  The United States deduced from these stat ements of the Panel that the Panel considered 
the phrase "taking account of the risks non-fulfilm ent would create" to be capable of potentially 
lessening the degree of contribution achieved by an alternative in order to be considered "equivalent".
757 However, it is evident to us that this was not what the Panel meant when it stated 
that "'the risks non-fulfilment would create' may be a relevant factor in assessing whether an 
alternative measure fulfils the legitimate objective to an equivalent degree  as the challenged 
measure."758 The Panel did not state that "taking account of the risks non-fulfilment would create" 
may lessen the degree of contribution achieved by a proposed alternative measure in order to be 
considered "equivalent"; nor, in our view, is this borne out in its reasoning in applying this phrase to the alternatives before it. Rather, the Panel stated expressly that "an alternative measure making a less than equivalent contribution to the legitimate objective in question cannot prove a 
violation of Article 2.2 of the TBT Agreement."
759 
5.265.  Instead of using the phrase "taking account  of the risks non-fulfilment would create" to 
potentially lessen the degree of contribution needed  to be made by an alternative measure, we 
consider the Panel to have sought to use "the risks non-fulfilment would create" to assist in 
shedding light on whether the respective degrees  of contribution of the amended COOL measure 
and the proposed alternatives are "equivalent".760  
5.266.  An interpretation that would potentially lessen the degree of contribution needed to be 
made by an alternative measure in order to be considered "equivalent" would not be compatible with the legal standard for Article 2.2 and could potentially erode the principle that a Member shall not be prevented from pursuing a legitimate objective "at the levels it considers appropriate" 
pursuant to the sixth preambular recital of the TBT Agreement.
761 In this regard, we do not agree 
with the arguments of Canada and Mexico that the qualification "subject to the requirement that they … are otherwise in accordance with the provis ions of this Agreement" in the sixth preambular 
recital of the TBT Agreement subordinates the prin ciple expressed in that recital – that a Member 
shall not be prevented from pursuing a legitimate objective "at the levels it considers appropriate" – to the provisions of the TBT Agreement.
762 Rather, this principle functions as interpretive context 
to the provisions of the TBT Agreement, including Article 2.2.763 In the context of Article 2.2, we 
understand the qualification "subject to the requir ement that they … are otherwise in accordance 
with the provisions of this Agreement" to mean that, while a Member may pursue a legitimate objective "at the levels it considers appropriate", it may not do so in a manner that is "more trade-
restrictive than necessary". In our view, the obligation to ensure that technical regulations are not 
more trade restrictive than necessary under Articl e 2.2 can be interpreted and applied in a manner 
that does not conflict with the principle enunciated in the sixth preambular recital of the 
TBT Agreement. 
5.267.  The United States further argues that no proposed alternative measure that provides less 
origin information could ever prove the amended COOL measure to be more trade restrictive than 
necessary because this would be incompatible with the "fundamental premise" that it is up to the 
United States to decide the level at which it provides consumer information on origin.
764 In our 
view, this argument is premised on the understandi ng that only the amount, type, and accuracy of 
origin information to be specifically affixed to a product count towards the contribution of the 
                                               
757 United States' appellant's submission, para. 261; re sponse to questioning at the oral hearing. We 
note that Canada and Mexico share this understand ing of the Panel's findings. (Canada's and Mexico's 
responses to questioning at the oral hearing) 
758 Panel Reports, para. 7.487. (emphasis added) 
759 Panel Reports, para. 7.482. See also para. 7.490. 
760 See Panel Reports, paras. 7.488, 7.490, and 7.491. 
761 We note that this principle has found expression  in other areas of the covered agreem ents. (See 
e.g. Appellate Body Reports, China – Publications and Audiovisual Products , para. 318; Brazil – Retreated 
Tyres , para. 156; US – Gambling , paras. 307-308; and Australia – Salmon , para. 199) 
762 Canada's appellee's submission, paras. 126-127;  Mexico's appellee's submission, para. 106. 
763 Appellate Body Report, US – Tuna II (Mexico) , paras. 212-213. 
764 United States' appellant's submission, para. 262. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 amended COOL measure to its objective.765 However, we note that the amended COOL measure's 
objective is framed more broadly than "providing  consumers point of production information". In 
particular, the Panel rejected the United States' argument that the objective ought to be framed more specifically as the provision to consumers of information on where livestock were born, 
raised, and slaughtered.
766 Rather, the Panel identified the objective of the amended COOL 
measure more broadly as "to provide consumer information on origin".767  
5.268.  We note that the United States has not appealed this finding.768 We further note that the 
Panel considered there to be "two main criteria " in assessing the amended COOL measure's degree 
of contribution to its objective: "the proportion of muscle cuts in the United States that actually carry labels as well as the degree of clarity and accuracy of such labels."
769 The United States has 
similarly not appealed this aspect of the Panel's finding in respect of the amended COOL measure's 
degree of contribution. In this regard, we observe that there are at least two variables that may 
affect the amended COOL measure's degree of contribution. The first variable encompasses the specificity and accuracy of "information". Th e second variable encompasses the range of 
"consumers" that are able to receive the information provided under the amended COOL measure, 
which is a function of the scope of that measure and its exemptions from coverage. In this regard, 
it follows that a significant expansion in the number of consumers receiving origin information 
would increase the degree of contribution to th e amended COOL measure's objective, which could 
thus potentially offset a reduction in the degree of contribution effected through the provision of less specific or less accurate information. In assessing the equivalence of the respective degrees of contribution made by the technical regulation at issue and the proposed alternative measures, it is 
the duty of a panel to consider the implications of the interplay between these variables, on the 
basis of the evidence presented, in either quanti tative or qualitative terms, as appropriate.  
5.269.  Where two or more distinct variables in a technical regulation collectively produce an 
overall degree of contribution to its objective, as with the amended COOL measure, we see no 
reason why, in principle, adjustments that were made with respect to one of those variables could 
not compensate for adjustments made with respect to another such variable, so that the overall 
degrees of contribution of a measure and a proposed alternative measure would be equivalent. 
This would, of course, need to be established by a complainant with sufficient argumentation and evidence. Relatedly, as we have discussed above, we do not consider that a complainant must demonstrate that its proposed alternative measure achieves a degree of contribution identical  to 
that achieved by the challenged technical regulation in order for it to be found to achieve an 
equivalent  degree. Nor do we consider that a proposed alternative measure cannot achieve an 
equivalent degree of contribution in ways different from the technical regulation at issue. In this 
regard, we recall that there can be a margin of appreciation in the assessment of whether a 
proposed alternative measure achieves an equivalent degree of contribution, whose contours may vary from case to case. In particular, a margin of appreciation in assessing the equivalence of the 
respective degrees of contribution may be affected by the nature of the risks and the gravity of the 
consequences arising from non-fulfilment of the technical regulation's objective. Thus, we do not consider that the Panel erred in contemplating that adjustments made in the proposed alternative measures with respect to one variable of the amended COOL measure's contribution to its 
objective, namely, the range of  "consumers" informed, could compensate for adjustments made 
with respect to another such element, namely, the specificity and accuracy of the "information" provided, and that such interplay might have an impact on the assessment of the equivalence of 
the respective degrees of contribution. 
                                               
765 As the Appellate Body has noted, a Member's level of protection need not be determined in the 
abstract, but may instead be articulated, implicitly or explicitly, through the degree  of contribution that the 
measure makes to the legitimate objective. In that sense, and without excluding the possibility that the level a Member considers appropriate to pursue a legitimate ob jective may be articulated in other ways, it is the 
extent of contribution to achieving the legitimate objective that provides the reference point for ascertaining a Member's chosen level of fulfilment. (See Ap pellate Body Reports,  US – COOL , para. 373; and US – Tuna II 
(Mexico) , para. 316) 
766 Panel Reports, para. 7.314 (referring to United States' first written submission to the Panel, 
paras. 160-166). 
767 Panel Reports, para. 7.331 (referring to Appellate Body Reports, US – COOL , paras. 433 
and 496(b)(ii)). 
768 United States' response to qu estioning at the oral hearing. 
769 Panel Reports, para. 7.346. (fn omitted) 
 WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.270.  In the light of the above considerations, we find that the Panel did not err, in 
paragraphs 7.488 and 7.501 of the Panel Reports, in contemplating that an alternative measure 
providing less, or less accurate, origin information to consumers for a significantly wider range of products might achieve an "equivalent" degree of contribution as the amended COOL measure. 
5.2.4.2  Canada's and Mexico's claims that the Panel erred in the factors it took into 
account in assessing "the risk s non-fulfilment would create"  
5.271.  Canada and Mexico request us to find that the Panel erred in respect of the factors it took 
into account in assessing "the risks non-fulfilment would create" under Article 2.2 of the 
TBT Agreement. In particular, Canada and Mexico claim that the Panel erred by failing to take into account the relative importance of the values or  interests pursued by the amended COOL measure, 
as well as by failing to take into account its design, structure, and architecture as part of "taking 
account of the risks non-fulfilment would create". We provide an overview of the Panel's approach 
and conclusions in this regard, before addressing each of these factors in turn. 
5.272.  The Panel noted that the Appellate Body in the original proceedings addressed the risks 
non-fulfilment of the original COOL measure's objective would create by taking into account 
consumer interest in, and willingness to pay for, country of origin information.
770 The Panel stated 
that, "[l]ike the Appellate Body, we address thes e factors for the risks non-fulfilment of the 
amended COOL measure's objective would create."771 In respect of the argument that the relative 
importance of the values or interests pursued by the amended COOL measure must also be taken into account, the Panel began by recalling its finding in a previous section of its Reports addressing the legal test under Article 2.2 that the "relative importance of interests or values protected by a 
measure is not a separate factor of the Article 2.2 legal test."
772 There the Panel also stated: 
As Mexico points out, "the risks non-fulfilment would create" is unique to the text of 
Article 2.2 of the TBT Agreement, does no t appear in Article XX of the GATT 1994 and 
Article XIV of the GATS. We agree that meaning must be given to this difference. In 
our view, the most appropriate way to give meaning to this difference is to address the risk non-fulfilment of the objective would create in the context of Article 2.2, 
which has been specifically identified by the Appellate Body as a factor of the 
Article 2.2 legal test. We shall do this, rather than assess as a separate factor "relative importance of the objective", which does not appear in the text of Article 2.2, and was developed only in the context of Article XX of the GATT 1994 and Article XIV of the 
GATS.
773 
5.273.  Proceeding with its assessment of the risks of non-fulfilment of the amended COOL 
measure's objective, the Panel stated that it did not "exclude the possibility for overlap between 
analytical components of the legal obligations  of the TBT Agreement and the GATT 1994" in 
addressing the argument that the relative impo rtance of interests or values protected by a 
measure should be taken into account in assessing "the risks non-fulfilment would create".774 
However, the Panel did not consider it necessary to define "the precise relationship between the 
nature of risks and gravity of the consequences of the non-fulfilment of a legitimate objective under the TBT Agreement, on the one hand, and the relative importance of the interests or values protected under Article XX of the GATT 1994, on the other".
775 Rather, the Panel determined to 
confine its analysis to "the express terms of the TBT Agreement", namely, by "taking account of 
the risks non-fulfilment would create", which, it recalled, requires an examination of the nature of the risks and the gravity of the consequenc es according to the jurisprudence of the 
Appellate Body.
776  
                                               
770 Panel Reports, para. 7.375 (referring to Appellate Body Reports, US – COOL, para. 478). 
771 Panel Reports, para. 7.375. 
772 Panel Reports, para. 7.379. (fn omitted) 
773 Panel Reports, para. 7.310. (fn omitted) 
774 Panel Reports, para. 7.379. 
775 Panel Reports, para. 7.379. 
776 Panel Reports, para. 7.379. See also Panel Reports, para. 7.311 (referring to Appellate Body Report, 
US – Tuna II (Mexico) , para. 322).  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.274.  In respect of the argument that the design and architecture of the amended COOL 
measure should be taken into account in assessing "the risks non-fulfilment would create", such as the exemptions from product coverage and the provision of potentially less accurate information for ground beef, the Panel noted that "there may be a variety of possible reasons unrelated to 
risks for exempting or treating differently certain product categories under a Member's technical 
regulation, such as regulatory or compliance costs."
777 Further, the Panel considered that "the 
amended COOL measure's treatment of different categories of meat products is more directly 
connected to the degree of contribution under Article 2.2 and the legitimacy of regulatory 
distinctions under Article 2.1."778 
5.275.  Thus, the Panel confined its analysis of "t he risks non-fulfilment would create" to assessing 
consumer interest in, and willingness to pay for, country of origin information.779 We now turn to 
the specific claims of Canada and Mexico that the Panel erred in this regard. We begin by 
assessing whether the Panel erred by failing to take into account the relative importance of the values or interests pursued by the amended COOL measure, followed by whether the Panel erred 
by failing to take into account the design, structure, and architecture of that measure. 
5.2.4.2.1  Whether the Panel erred by failing to take into account the relative 
importance of the values or interests purs ued by the amended COOL  measure in "taking 
account of the risks non-fulfilment would create" 
5.276.  Canada and Mexico claim that the Panel erred by failing to consider in its assessment of 
"the risks non-fulfilment would create" that, compared to other objectives such as public health and the protection of the environment, the mere provision of origin information is not important.
780 
For Canada and Mexico, the relatively low importance of providing origin information suggests that the gravity of the consequences of not providing such information is concomitantly low.
781 
5.277.  In addressing the question at hand, we turn first to the text of Article 2.2 of the 
TBT Agreement, namely, the phrase "taking account of the risks non-fulfilment would create". In 
our interpretation of Article 2.2 above, we have noted that, textually, the "risks" to be "tak[en] 
account of" under Article 2.2 are those that woul d be created by the "non-fulfilment" of the 
"legitimate objective" of the technical regulation at issue. In this regard, the risks that would be 
created by the non-fulfilment of legitimate objectives other than  the particular legitimate objective 
at issue are not referred to in the text of Article 2.2. In other words, because the objective of the 
amended COOL measure is the "provision of consumer information on origin", the risks referred to 
in Article 2.2 are those that would be created by the non-fulfilment of the "provision of consumer 
information on origin", rather than the risks related to other potential legitimate objectives, such as the protection of public health or the environm ent. In that regard, we do not view the phrase 
"taking account of the risks non-fulfilment would create" as providing a direct textual basis for 
taking into account the relative importance of the objective pursued, i.e. the importance of the objective pursued as compared to the importance of other objectives.  
5.278.  We consider this understanding to be confirmed by the final sentence of Article 2.2, which 
provides that, "[i]n assessing such risks, relevant elements of consideration are, inter alia : 
available scientific and technical information, related processing technology or intended end-uses of products." While we agree that this is a non-exhaustive list
782, the terms listed in this sentence, 
namely, "scientific and technical information", "related processing technology", and "intended 
end-uses of products", provide an indication of  the relevant elements of consideration when 
"taking account of the risks non-fulfilment would create".783 In our view, these terms relate to 
neutral and observable considerations in respec t of fulfilling the objective of the technical 
regulation at issue. By contrast, an evaluation of the relative importance of an objective vis-à-vis other objectives involves particular opinions or points of view on differing objectives that might be 
pursued by a Member. In our view, the terms "scientific and technical information", "related 
                                               
777 Panel Reports, para. 7.380. 
778 Panel Reports, para. 7.380. (fn omitted) 
779 Panel Reports, para. 7.381.  
780 Canada's other appellant's submission, paras. 98 and 100; Mexico's other appellant's submission, 
paras. 77, 78, and 81. 
781 Canada's other appellant's submission, paras.  98-100; Mexico's other appellant's submission, 
para. 73. 
782 Canada's other appellan t's submission, para. 32. 
783 See e.g. Appellate Body Reports, US – COOL , para. 370. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 processing technology", and "intended end-uses  of products", do not connote the kinds of 
judgements that would be necessary to determine whether one objective is, in comparative terms, more or less important than other objectives.  
5.279.  However, we consider it useful to distinguish between the relative  i m p o r t a n c e  o f  a n  
objective, on the one hand, and the importance of the objective to the Member implementing the 
technical regulation at issue , on the other hand. As we see it, the importance of the objective to 
the Member implementing the technical regulati on at issue could inform the analysis under 
Article 2.2 in some capacity, to the extent it is reflected in the level considered appropriate by the 
Member to pursue the relevant objective, or the actual degree of contribution made by the technical regulation to its objective. For instance, where a Member chooses a high level of fulfilment for a technical regulation to contribute to its objective, this may be indicative of the 
importance this Member places on the fulfilment of that objective, and evidence pertaining to the 
importance a Member places on an objective might inform an assessment of the degree of 
contribution made by the technical regulation to its objective.
784 Thus, we would ordinarily expect 
the gravity of the consequences arising from the non-fulfilment of the technical regulation's 
legitimate objective to correlate, at least to some extent, to the importance of the objective to the Member concerned. However, this does not mean that the relative  importance of an objective, as 
determined against other potential objectives that a Member might pursue, is a factor directly 
pertinent to "taking account of the risks non-fulfilment would create" under Article 2.2.
785 
5.280.  We further recall that a panel is not bound by a Member's characterization of the objective 
of a measure and should conduct its own assessmen t of the objective pursued. The Appellate Body 
has noted, in this regard, that a panel is called upon to make a determination of "legitimacy" of a 
measure's objective under Article 2.2. It appears to us that the importance of an objective to the Member concerned may be relevant for assessing th e "legitimacy" of an objective. Moreover, as 
we have explained above, while there is no requirement under Article 2.2 to assess the relative  
importance of the objective as a separate factor, we do not mean to suggest that the importance of an objective is irrelevant for the assessment of  the other relevant factors under Article 2.2.  
5.281.  For these reasons, we find that the Panel did not err, in paragraph 7.379 of the Panel 
Reports, by failing to take into account the relati ve importance of the values or interests pursued 
by the amended COOL measure in assessing "the risks non-fulfilment would create" under Article 2.2 of the TBT Agreement. 
5.2.4.2.2  Whether the Panel erred by failing to  take into account the design, structure, 
and architecture of the amended COOL meas ure in assessing "the risks non-fulfilment 
would create" 
5.282.  Canada and Mexico request us to find that the Panel erred by failing to consider the 
design, structure, and architecture of the amende d COOL measure, such as the exemptions from 
coverage and the potentially less accurate or less specific information for certain products, as part 
of "taking account of the risks non-fulfilment would create" under Article 2.2 of the 
TBT Agreement.
786 For Canada and Mexico, the existence of these aspects of the amended COOL 
measure demonstrates that the gravity of the consequences arising from the non-fulfilment of its objective is insignificant
787 or not grave.788 This is because, if the gravity of the consequences 
arising from non-fulfilment were significant, then there would not be large exemptions and less-
detailed information for certain products.789  
5.283.  We begin by noting that both Canada and Mexico clarified in response to questioning at the 
oral hearing that their claims relate to an error of law by the Panel. Thus, they claim that the Panel 
rejected the design, structure, and architecture  of the amended COOL measure as relevant for 
                                               
784 See e.g. Appellate Body Report, Brazil – Retreaded Tyres , paras. 144 and 151-155. 
785 In our view, is not required that the relative impo rtance of the objective concerned be ascertained as 
a separate factor in a manner similar to the "neces sity" analysis under Articl e XX of the GATT 1994 or 
Article XIV of the GATS. 
786 Canada's other appellant's submission, paras.  96, 101-102, and 111; Mexico's other appellant's 
submission, paras. 84-89. 
787 Mexico's other appellan t's submission, para. 86. 
788 Canada's other appellant's submission, paras. 101-102. 
789 Mexico's other appellant' s submission, paras. 85-86. See also Canada's other appellant's submission, 
para. 101. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 assessing "the risks non-fulfilment would create" generally as a matter of legal interpretation. For 
Mexico, this error also manifests itself as an inconsistency with Article 11 of the DSU.790 
5.284.  In this regard, we recall the interpretation of the phrase "taking account of the risks non-
fulfilment would create" set out above, namely, that "taking account" calls for an active and 
meaningful consideration of "the risks non-fulfilment would create" in the weighing and balancing 
under Article 2.2. At the same time, this requirement is also sufficiently flexible so as to be adaptable to the particularities of a given case. Thus, certain aspects of a technical regulation may 
be salient to "taking account of the risks non-fulfilment would create" in a given case. A technical 
regulation itself, or its related instruments, might contain elements pertaining to the nature of the risks it seeks to address and the gravity of the co nsequences arising from the non-fulfilment of its 
objective.  
5.285.  We now turn to the relevant findings of the Panel. In rejecting the relevance of the design, 
structure, and architecture of the amended COOL measure for assessing "the risks non-fulfilment 
would create", we recall that the Panel stated that "there may be a variety of possible reasons 
unrelated to risks for exempting or treating differently certain product categories under a 
Member's technical regulation, such as regulatory or compliance costs."
791 The implication is that 
the Panel left open the possibility that there migh t be reasons for exempting or treating differently 
certain categories of meat products under the am ended COOL measure that are indeed related to 
the risks non-fulfilment would create. As we see it, rather than rejecting the relevance of the design, structure, and architecture generally as a matter of legal interpretation, the Panel did not consider that sufficient reasons had been advanced connecting those features to "the risks non-
fulfilment would create" in the particular case at hand. This is supported by the fact that, in its 
subsequent analysis, the Panel considered, specifically with respect to the amended COOL measure, that the "treatment of different categories of meat products is more directly connected 
to the degree of contribution under Article 2.2 an d the legitimacy of regulatory distinctions under 
Article 2.1".
792 In our view, this suggests that the Panel considered that, in respect of the features 
of the particular technical regulation at issue  in this case – namely, its exemptions from coverage 
and the potentially less accurate or less specific information for certain products – such features 
were more suited to consideration as part of ot her aspects of the analysis. We, thus, do not read 
the Panel's findings as interpreting the phrase "taking account of the risks non-fulfilment would create" to exclude, in all instances, the design , structure, and architecture of the technical 
regulation at issue.  
5.286.  We note that, in their arguments on appeal, Canada and Mexico simply assert, without 
more, that the very existence of these features demonstrates their connection to "the risks 
non-fulfilment would create".
793 In our view, this assertion does not, in and of itself, suffice to 
make out a prima facie  case that the specific features of the amended COOL measure are pertinent 
considerations in "taking account of the risks non-fulfilment would create". As we have stated 
above, a technical regulation itself, or its associated instruments, may reveal elements relevant to 
the nature and gravity of the risks addressed. Ho wever, the Panel did not consider the evidence 
and argumentation presented by Canada and Mexico to substantiate the connection between specific aspects of the design, architecture, and structure of the amended COOL measure, on the 
one hand, and the nature of the risks of the non-fulfilment of its objective or the gravity of the 
consequences arising from its non-fulfilment, on the other hand.
794 
5.287.  For these reasons, we find that the Panel did not err, in paragraph 7.380 of the Panel 
Reports, by failing to take into account the de sign, structure, and architecture of the amended 
COOL measure in assessing "the risks non-fulfilment would create" under Article 2.2 of the TBT Agreement. In the light of our finding that th e Panel did not err under Article 2.2 by failing to 
take the design, structure, and architecture of the amended COOL measure into account in this 
regard, we further find that the Panel did not fail to make an objective assessment of the matter 
                                               
790 Mexico's other appellant's subm ission, para. 89; response to questioning at the oral hearing. 
791 Panel Reports, para. 7.380. 
792 Panel Reports, para. 7.380. (fn omitted) 
793 See e.g. Canada's other appellant's submissi on, para. 101; and Mexico's other appellant's 
submission, para. 86. 
794 Panel Reports, para. 7.380.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 before it under Article 11 of the DSU by omitting  these factors from its assessment of "the risks 
non-fulfilment would create".795 
5.2.4.2.3  Whether the Panel erred in finding that it could not ascertain the gravity of 
the consequences of non-fulfilment of the amended COOL measure's objective 
5.288.  Canada and Mexico request us to find that the Panel erred in concluding that it could not 
ascertain the gravity of the consequences of non-fulfilment of the amended COOL measure's 
objective.796 Canada's request is grounded in the argument that, had the Panel not erred in 
considering that certain factors were irrelevant or unnecessary for its assessment of "the risks 
non-fulfilment would create", then it would have been able to reach a conclusion on the gravity of the consequences of non-fulfilment, namely, that such consequences "would not be particularly grave".
797 Mexico's request engages both a claim that the Panel erred as a matter of law in finding 
that it was unable to ascertain the gravity of the consequences that would arise from the non-
fulfilment of the amended COOL measure, as well as a claim that the Panel acted inconsistently with Article 11 of the DSU in its approach to th e assessment of evidence in relation to consumer 
demand for origin information.
798 The United States argues that the Panel did not err in 
determining that it was unable to reach a conclusion on the gravity of the consequences of non-fulfilment in the light of the conflicting evidence, or a lack of evidence, regarding consumer 
demand, consumer benefits, and the interest of the Member concerned in pursuing the legitimate 
objective at issue.
799 
5.289.  We begin by setting out the approach of th e Panel that led it to find that it could not 
ascertain the gravity of the consequences of not fulfilling the amended COOL measure's objective. 
The Panel stated that it would "review the risks non-fulfilment of the amended COOL measure's 
objective would create by assessing the nature of the risks and the gravity of the consequences."
800 As part of this assessment, the Panel undertook "a critical assessment of the 
evidence submitted by the parties on consumers' interest in, and willingness to pay for, country of 
origin information."801 From this assessment, the Panel yielde d a number of findings. In particular, 
the Panel found that consumers are interested in both country of origin information in general and 
country of origin information according to point of production.802 The Panel also found that 
consumers show some willingness to pay for general country of origin information.803 However, the 
Panel did not consider that it had been given pr obative evidence showing consumer willingness to 
pay for country of origin information according to point of production.804 On the basis of these 
findings, the Panel concluded there to be "some risk" associated with the non-fulfilment of the 
amended COOL measure's legitimate objective, wh ose nature took the form of consumers being 
"misinformed, confused, or not informed at all".805 
5.290.  However, for the Panel, the inability to determine the extent of consumer interest, in either 
general country of origin information or country of origin information according to point of production, based on the evidence on the record meant that it could not ascertain the gravity of 
not fulfilling the amended COOL measure's objective. The Panel appears to have treated its 
assessment of such gravity as essentially a quantitative  exercise. For instance, the Panel stated in 
respect of one study that, while it " quantifies  the premium consumers would be willing to pay for 
labels showing general information on country of origin, neither the study nor the complainants 
have translated the implications of this figure for the specific degree of gravity of the 
consequences of not fulfilling the object ive to provide consumer information."
806  
                                               
795 See Mexico's other appellant's submission, para. 89. 
796 Canada's other appellant's submission, para. 115; Mexico's other appellant's submission, para. 90. 
797 Canada's other appellant's submission, paras. 96, 108, and 115. 
798 Mexico's other appellant's subm ission, paras. 90 and 93-94; response to questioning at the oral 
hearing.  
799 United States' appellant's submission, paras. 124-125. 
800 Panel Reports, para. 7.381. 
801 Panel Reports, para. 7.383. 
802 Panel Reports, para. 7.416. 
803 Panel Reports, para. 7.416. 
804 Panel Reports, para. 7.416. 
805 Panel Reports, para. 7.417. 
806 Panel Reports, para. 7.418. (emphasis added) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.291.  The Panel then considered that the benefits accruing to consumers from receiving origin 
information may also be a determinant of consumer demand for such information.807 However, the 
Panel rejected certain evidence of the USDA submi tted in respect of the economic benefits of the 
amended COOL measure because of the USDA's consideration that "the expected benefits from 
implementing mandatory COOL requirements remain difficult to quantify ".808 Thus, despite 
considering that the benefits that would be fore gone by consumers in the absence of meaningful 
origin information are relevant for assessing the gravity of the consequences of such an 
eventuality, the Panel concluded that even the USDA was unable to ascertain the benefits to 
consumers of the amended COOL measure.809 
5.292.  The Panel further considered that a Member's interest in pursuing a legitimate objective 
might be additionally relevant for ascertaining the gravity of the consequences of not fulfilling the 
amended COOL measure's objective.810 However, with respect to the measure at issue, the Panel 
appeared to consider the USDA's aforementioned  difficulties in quantifying consumer benefits 
under both the original and amended COOL measures as a reason for not being able to quantify 
the United States' interest in pursuing the legitimate objective at hand.811 
5.293.  For the foregoing reasons, the Panel considered that, although it established the nature  of 
the risks and the consequences  of not fulfilling the amended COOL measure's objective, it could 
not ascertain the gravity  of the consequences  of not fulfilling that measure's objective based on 
the evidence before it.812 
5.294.  The Panel cited its inability to ascertain the gravity of the consequences of not fulfilling the 
amended COOL measure's objective as the reason for which it could not "tak[e] account of the 
risks non-fulfilment would create" in assessing wh ether the first and second proposed alternative 
measures demonstrate that the amended COOL measure is "more trade-restrictive than necessary".
813 Thus, in practical terms, we understand the Panel to have considered that its 
inability to quantify the gravity of the conseque nces of not fulfilling the amended COOL measure's 
objective meant that it could not make an assessment of "the risks non-fulfilment would create", and that, consequently, it could not take such risks into account in the overall weighing and 
balancing under Article 2.2. In our view, the Panel, upon concluding in effect that it could not 
quantify  the gravity of the consequences of non-fulfil ment, effectively ceased to take into account 
"the risks non-fulfilment would create" in the overall weighing and balancing, as demonstrated in its further analysis of the first and second proposed alternative measures. 
5.295.  We recall that the nature of the risks and the gravity of the consequences of non-fulfilment 
are merely components of the overall analysis of "the risks non-fulfilment would create". In the light of our understanding that panels must adopt or develop a methodology that is suited to 
yielding a correct assessment of the relevant factors under Article 2.2 in the circumstances of a 
given case, we consider that the Panel was correct to seek to assess as precisely as it could the gravity of the consequences of non-fulfilment of the amended COOL measure's objective in the 
circumstances of this case. However, as we have  stated above, and as is apparent from the 
circumstances of the case before us, it might be difficult, in some contexts, to determine 
separately the nature of the risks, on the one hand, and to quantify the gravity of the consequences that would arise from non-fulfilment, on the other hand. In such contexts, it may be 
more appropriate to conduct a conjunctive analysis of both the nature of the risks and the gravity 
of the consequences of non-fulfilment, in which "the risks non-fulfilment would create" can be assessed in qualitative terms.  
5.296.  In any case, as we have explained above, difficulties or imprecision that arise in assessing 
"the risks non-fulfilment would create", due to the nature of the relevant risks or the gravity of the consequences of non-fulfilment of the objective of the measure at issue, should not, in and of 
themselves, relieve a panel from its duty to assess this factor. A panel should proceed further with 
a holistic weighing and balancing of all relevant factors, and reach an overall conclusion under 
                                               
807 Panel Reports, para. 7.419. 
808 Panel Reports, para. 7.420 (quoting 2013 Final Rule, p. 31376). (emphasis added) 
809 Panel Reports, para. 7.420. 
810 Panel Reports, para. 7.422. 
811 Panel Reports, para. 7.422. 
812 Panel Reports, paras. 7.423-7.424. 
813 Panel Reports, paras. 7.488 and 7.501. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 Article 2.2. In our view, the term "taking a ccount of" calls for the active and meaningful 
consideration of "the risks non-fulfilment would create", even where there is imprecision in their nature or magnitude, in the weighing and balancing under Article 2.2 of the TBT Agreement. 
5.297.  In the light of these considerations, we find that the Panel erred, in paragraph 7.423 of the 
Panel Reports, in concluding that it was unable to ascertain the gravity of the consequences of 
non-fulfilment of the amended COOL measure's objective.814  
5.2.4.3  Claims of error with respect to the Panel's finding that Canada and Mexico failed 
to make a prima facie  case that the first and second  proposed alternative measures 
would make an equivalent degree of cont ribution to the amended COOL measure's 
objective 
5.298.  We turn now to the requests of Canada and Mexico that we find that the Panel erred in 
finding that Canada and Mexico failed to make a prima facie  case that the first and second 
proposed alternative measures would make an equi valent degree of contribution to the amended 
COOL measure's objective. Canada and Mexico also request us to complete the legal analysis in 
respect of these proposed alternative measures and find that they make an equivalent degree of 
contribution to that of the challenged measure. In the alternative, Canada and Mexico request us 
to find that, even if these proposed alternativ e measures achieve a lesser degree of contribution 
than the amended COOL measure, this is offset by their lower level of trade-restrictiveness and by 
the low gravity of "the risks non-fulfilment would create", such that the amended COOL measure is "more trade-restrictive than necessary" under Article 2.2 of the TBT Agreement. 
5.299.  Canada and Mexico consider that the Panel's error in relation to assessing the equivalence 
between the respective degrees of contribution stems from the Panel's earlier error in failing to 
ascertain the gravity of the risks of non-fulfilment.
815 In particular, Canada argues that the Panel 
did not take account of "the risks non-fulfilment would create" because of its erroneous finding 
that it was unable to assess the gravity of the consequences of non-fulfilment of the amended 
COOL measure's objective, and that this led the Panel to find that Canada failed to make a prima 
facie case in respect of the equivalence of the degrees of contribution of the first and second 
proposed alternative measures with that of the amended COOL measure.816 Mexico argues that the 
Panel's error in respect of "the risks non-fulfilme nt would create" had "the effect of compromising 
its ability to engage in a fulsome comparative analysis of the amended COOL measure and Mexico's first and second alternative measures", particularly in assessing whether their respective 
degrees of contribution were equivalent  to that of the amended COOL measure.
817 
5.300.  Canada and Mexico argue, in the first instance, that the first and second proposed 
alternative measures can be considered to achiev e an equivalent degree of contribution to the 
amended COOL measure's objective because their re spectively lower degrees of origin information 
and accuracy are applied to a significantly wider range of products.818 
5.301.  The United States responds that the proposed alternative measures cannot be found to 
make an "equivalent" degree of contribution beca use they provide a lesser degree of information 
or accuracy. Otherwise, this would effectively prohibit the United States from providing point-of-production origin information, which is the level of origin information that it considers appropriate to provide to its consumers.
819 Further, the United States argues that Canada and Mexico have not 
explained why or how expanding the scope of products subject to labelling could compensate for 
the failure to provide the same degree of point-of-production origin information.820  
                                               
814 We note that Canada's claim under Article 2.2 of the TBT Agreement, and Mexico's claim under 
Article 11 of the DSU, in respect of the Panel's assessme nt of certain evidence relating to consumer demand, 
are addressed in section 5.2.4.4 infra.  
815 Canada's other appellant's submission, paras. 119 and 122; Mexico's other appellant's submission, 
paras. 113, 114, 132, and 150. 
816 Canada's other appellant's submission, paras. 118 and 122;  
817 Mexico's other appellant's submission, paras. 113-115. 
818 Canada's other appellant's submission, para. 117; Mexico's other appellant's submission, paras. 133 
and 152. 
819 United States' appellee's submission, para. 154. 
820 United States' appellee's submission, paras. 179 and 194. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.302.  We begin our analysis by recalling the Panel's findings in respect of the first and second 
proposed alternative measures. The Panel considered in respect of the first proposed alternative measure that, "given the potential relevance of risks of non-fulfilment in comparing degrees of contribution", the provision of "less origin information to consumers for a significantly wider range 
of products through a measure like the complainants' first alternative measure might achieve an 
equivalent degree of contribution as the amended COOL measure".
821 The Panel made a 
substantially similar observation in respect of the second proposed alternative measure.822 As we 
have noted above, our understanding of the Panel's statements in this regard is that the Panel 
considered that taking account of "the risks non-fulfilment would create" might shed light on the assessment of whether the first and second proposed  alternative measures, in fact, would make an 
equivalent degree of contribution as the amende d COOL measure does to the objective pursued. 
However, the Panel considered that, since it was unable to ascertain the gravity of the 
consequences of non-fulfilment of the amended C OOL measure's objective, it could not determine 
"the specific implications of risks of non-fulfilment for the interplay between less accurate 
information and more extensive coverage".
823 Thus, the Panel considered that, in the particular 
circumstances of this case, taking account of "the risks non-fulfilment would create" could not shed light on whether the respective degrees of cont ribution of the amended COOL measure and the 
first and second proposed alternative measures ar e equivalent, because it had not been able to 
ascertain the gravity of the consequences of not fulfilling the amended COOL measure's objective.
824 
5.303.  The Panel proceeded to conclude, in respect of the first proposed alternative measure, 
that, "[u]ltimately, the complainants have not persuasively demonstrated how the increased 
coverage of their first alternative measure would compensate for less origin information provided 
on Labels A-C under the first alternative measure".825 In the context of the considerations and 
analysis of the Panel preceding this conclusion, we take this statement to mean that, although the 
Panel did not in principle exclude the possibility that less specific origin information coupled with increased product coverage could produce an "equ ivalent" degree of contribution, this had not 
been proven  by the complainants. For the Panel, an assessment of "taking account of the risks 
non-fulfilment would create" could have shed light on whether the increased coverage of the first proposed alternative measure might compensate for less origin information provided on Labels A-C to produce an equivalent degree of contribution, but the complainants did not make a prima facie  
case in this regard.
826 This was because, in the Panel's view, the complainants had not submitted 
probative evidence on the gravity of the conseq uences of non-fulfilment of the amended COOL 
measure's objective.827 Thus, the Panel concluded that "the complainants have not made a 
prima facie case that their first alternative measure would make an at least equivalent degree of 
contribution to the objective of providing origin information to consumers as does the amended COOL measure."
828  
5.304.  The Panel employed substantially the same  reasoning and reached substantially the same 
conclusions in respect of the second proposed alternative measure, which, the complainants 
argued, achieved an equivalent degree of contri bution to the amended COOL measure's objective 
by offsetting less accurate information with increased product coverage.829 
5.305.  Thus, in summary, we understand that the Panel's ultimate findings that the complainants 
did not make a prima facie  case that their first and second proposed alternative measures would 
make an equivalent degree of contribution to the amended COOL measure's objective was based 
on its conclusion that the complainants had not proved how or why less origin information, or less 
accurate origin information, could be offset by increased product coverage to produce an equivalent degree of contribution.
830 This conclusion of the Panel, was, in turn, based on its 
consideration that, on the evidence before it, the Panel was unable to take account of "the risks 
non-fulfilment would create" and, consequently, could not assess whether the respective degrees 
                                               
821 Panel Reports, para. 7.488. 
822 Panel Reports, para. 7.501. 
823 Panel Reports, para. 7.501. See also para. 7.488. 
824 Panel Reports, paras. 7.488 and 7.501. 
825 Panel Reports, para. 7.490. 
826 Panel Reports, paras. 7.488-7.490. 
827 Panel Reports, para. 7.423. 
828 Panel Reports, para. 7.490. 
829 Panel Reports, paras. 7.501-7.503. 
830 Panel Reports, paras. 7.490 and 7.502. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 of contribution of the amended COOL measure and the first and second proposed alternative 
measures were equivalent. 
5.306.  In this regard, we recall our finding above that the Panel erred by ceasing its analysis 
when it concluded that it was unable to ascertain the gravity of the consequences that would arise 
from the non-fulfilment of the amended COOL meas ure's objective in quantitative terms. As we 
have explained above, it might be difficult, in some contexts, to determine separately the nature 
of the risks, on the one hand, and to quantify the gravity of the consequences that would arise 
from non-fulfilment, on the other hand. In such co ntexts, it may be more appropriate to conduct a 
conjunctive analysis of both the nature of th e risks and the gravity of the consequences of 
non-fulfilment, in which "the risks non-fulfilment would create" are assessed in qualitative terms. In any case, difficulties or imprecision that arise in assessing "the risks non-fulfilment would 
create", due to the nature of the relevant risks or the gravity of the consequences of non-
fulfilment at issue, should not, in and of themselves, relieve a panel from its duty to assess this factor and proceed further with a holistic weighing and balancing of all relevant factors, and reach 
an overall conclusion under Article 2.2.  
5.307.  In our view, this error of the Panel effectiv ely meant that the Panel did not fulfil its duty to 
take account of "the risks non-fulfilment would create" in its overall assessment under Article 2.2 
and, more particularly, in assessing whether the first and second proposed alternative measures 
make a contribution to the amended COOL measure's objective that is equivalent in degree to that made by the amended COOL measure itself.  
5.308.  We have found the Panel's finding that it was unable to ascertain the gravity of the 
consequences of non-fulfilment of the amended COOL measure's objective to be in error. The 
Panel cited this inability as its reason for concluding that it could not determine whether the first and second proposed alternative measures make a degree of contribution equivalent to that of the 
amended COOL measure.
831 Thus, we consider that this error also compromised the Panel's 
finding, in paragraphs 7.490 and 7.503 of the Panel Reports, that the complainants failed to make a prima facie  case that the first and second proposed alternative measures would make an 
equivalent degree of contribution to the amended COOL measure's objective and, subsequently, its 
decision to end its analysis as to whether the amended COOL measure is "more trade-restrictive 
than necessary" under Article 2.2 of the TBT Agreem ent on the basis of those proposed alternative 
measures.
832 This, in turn, led to the Panel's overall co nclusion that the complainants did not make 
a prima facie  case that the amended COOL measure violates Article 2.2 of the TBT Agreement.833 
Because the Panel's overall conclusion was based on these erroneous intermediate findings, we reverse the Panel's overall conclusion, in paragraph 7.613 of the Panel Reports, that Canada and 
Mexico did not make a prima facie  case that the amended COOL measure violates Article 2.2 of the 
TBT Agreement. We reach this finding without prejud ice to how, in the circumstances of this case, 
"the risks non-fulfilment would create" actually shed any light on whether the first and second 
proposed alternative measures make a contribution to the amended COOL measure's objective 
that is equivalent in degree to that of the amended COOL measure itself.  
5.309.  We also express reservations in respect of the Panel's decision to cease its analysis of the 
first and second proposed alternative measures due to the difficulties it encountered in assessing, 
in precise terms, whether they achieve a degree of contribution equivalent to that of the amended 
COOL measure.834 In particular, we understand the Panel to have decided to "end [its] analysis" 
and not proceed to assess the other relevant factors in the analysis because it could not, inter alia , 
"determine the specific implications of [the] risks of non-fulfilment for the interplay between less 
information coupled with more extensive coverage", or determine how less specific or less accurate information might be compensated by significantly wider product coverage.
835  
5.310.  As we have recognized above, there may be instances where it is difficult to assess with 
precision whether there is equivalence between the technical regulation's degree of contribution and that of a proposed alternative measure. For in stance, as demonstrated by the case before us, 
a technical regulation and proposed alternative measures may deploy various methods or 
                                               
831 Panel Reports, paras. 7.488 and 7.501. 
832 Panel Reports, paras. 7.491 and 7.503. 
833 Panel Reports, paras. 7.611-7.613. 
834 See Panel Reports, para. 7.491 and 7.503. 
835 Panel Reports, para. 7.488 and 7.491. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 techniques that jointly or separately contribute to achieving the objective, which may not each be 
quantifiable in an isolated manner.836 We recognize that, in such instances, a panel may encounter 
practical difficulties in assessing the overall degree  of contribution made by a technical regulation 
and in comparing whether a proposed alternative measure makes an equivalent degree of 
contribution. Some imprecision in assessing the respective degrees of contribution of a technical 
regulation and proposed alternatives may be inev itable in certain circumstances. However, such 
imprecision should not, in and of itself, relieve a panel from its duty to assess the equivalence of 
the respective degrees of contribution. In spite of such imprecision, a panel should proceed with 
the overall weighing and balancing process under Article 2.2.837 I n  t h i s  r e g a r d ,  a s  w e  h a v e  
elaborated above, there is a margin of appreciation in the assessment of whether a proposed alternative measure achieves an equivalent degree of contribution, whose contours may vary from 
case to case. Having said that, however, we have  already reversed the Panel's overall conclusion 
that Canada and Mexico failed to make a prima facie case that the amended COOL measure is 
"more trade-restrictive than necessary" on the basi s of the first and second proposed alternatives. 
We, therefore, do not consider it necessary to evaluate further the Panel's decision to cease its 
analysis due to the difficulties it encountered in determining the equivalence of the degree of contribution made by the first and second proposed alternatives with that of the amended COOL 
measure. 
5.311.  Finally, we recall that, in the alternative, Canada and Mexico request us to find that, even 
if these proposed alternative measures are found to achieve a lesser degree of contribution than the amended COOL measure, this is offset by thei r lower level of trade-restrictiveness and by the 
low gravity of "the risks non-fulfilment would create", such that the amended COOL measure is 
"more trade-restrictive than necessary". We note that the requests of Canada and Mexico are slightly different from each other.  
5.312.  Canada's request in the alternative is premised on us finding that the first and second 
alternative measures do not make a degree of contribution to the amended COOL measure's objective that is at least equivalent to that achieved by the measure itself.
838 In that circumstance, 
Canada requests us to complete the legal analysis in respect of the first and second proposed 
alternative measures and, after considering the re levant findings under both the "relational" and 
"comparative" analyses together, to reverse the Panel's finding that Canada failed to make a prima 
facie case that the amended COOL measure vi olates Article 2.2 of the TBT Agreement.839 In this 
regard, we recall that we have already found that the Panel erred in its overall conclusion that the 
complainants failed to make a prima facie  case that the amended COOL measure violates 
Article 2.2 of the TBT Agreement. Canada's request in respect of how we complete the legal 
analysis is predicated on the outcome of our assessment of whether the respective degrees of 
contribution of the first and second proposed alternative measures, and the amended COOL measure, are equivalent. We will therefore address Canada's request in the context of assessing 
whether we can complete the legal analysis.  
5.313.  Mexico's request in the alternative is predicated on "any of [its] proposed alternative 
measures mak[ing] a somewhat lesser contribution to the consumer information objective".
840 If 
Mexico's proposed alternative measures are found to make a "somewhat lesser" contribution, 
Mexico argues that they should nonetheless be found to fulfil the amended COOL measure's 
objective to an equivalent degree due to "the risks non-fulfilment would create" being insignificant, and due to their less trade-restrictive nature.
841 Thus, whereas Canada's request presumes that 
the first and second proposed alternative measures  are not found to be "equivalent" due to us 
concluding that they make a lesser degree of contribution, Mexico's request calls for us to find that they make an "equivalent" degree of contribution notwithstanding  us concluding that they make a 
lesser degree of contribution. Since Mexico's request is predicated on how we complete the legal 
analysis, and is predicated on the outcome of our assessment of whether the first and second proposed alternative measures make a lesser degree of contribution, we will address its request in the context of assessing whether we can complete the legal analysis. 
                                               
836 See e.g. Appellate Body Report, Brazil – Retreaded Tyres , para. 151. 
837 See Appellate Body Reports, EC – Seal Products , para. 5.215. 
838 Canada's other appellant's submission, para. 131. 
839 Canada's other appellant's submission, para. 131. 
840 Mexico's other appellant's submission, para. 124. 
841 Mexico's other appellant's submission, para. 124. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.2.4.4  Claims of error with respect to th e Panel's assessment of certain evidence and 
arguments in respect of consumer  demand for origin information 
5.314.  As part of their requests that we find that the Panel erred in concluding that it could not 
ascertain the gravity of the consequences of non-fulfilment of the amended COOL measure's 
objective, Canada and Mexico claim that the Panel erred in its assessment of evidence and 
arguments relating to consumer demand for origin information.  
5.315.  In particular, Canada claims that, alth ough the Panel identified "consumer demand for 
origin information" as a "relevant indicator" for assessing the gravity of the consequences of not 
fulfilling the amended COOL measure's objective, the Panel erred by excluding evidence relating to the "market failure perspective" in its assessment of consumer demand.
842 In Canada's view, this 
was the "single most relevant element" for assessing consumer demand for the purpose of 
ascertaining the gravity of the consequences of not fulfilling the amended COOL measure's 
objective.843 For Canada, the appropriate inference to dr aw from this evidence is that consumers 
have no interest in this information, or that this interest is weak844, which demonstrates in turn 
that the consequences of non-fulfilment are not particularly grave.845 Canada submits that, in the 
light of this error, the Panel erred in concluding that it could not assess the gravity of the consequences of non-fulfilment.
846 
5.316.  Mexico requests us to find that the Panel failed to make an objective assessment of the 
matter before it, pursuant to Article 11 of the DSU, in respect of a number of pieces of evidence relating to consumer demand for origin information.
847 In Mexico's view, an objective assessment 
of this evidence would have established a prima facie  case that consumer demand for origin 
information on the covered products is very low. This, in turn, would have supported a conclusion 
that the gravity of the consequences arising from  non-fulfilment of the amended COOL measure's 
objective is very low, rather than a conclusion th at such gravity cannot be ascertained on the basis 
of the evidence submitted in this case.848 
5.317.  We recall our finding above that the Panel erred in concluding that it was unable to 
ascertain the gravity of the consequences of non-fulfilment of the amended COOL measure's 
objective. We have also found that the Panel erred in its overall conclusion with respect to 
Article 2.2 of the TBT Agreement.849 Accordingly, we do not consider it necessary, for the purposes 
of resolving these disputes, to rule on whether,  in the assessment of the evidence and arguments 
on consumer demand for origin information,  the Panel erred under Article 2.2 of the 
TBT Agreement or acted inconsistently with Article 11 of the DSU.  
5.2.4.5  Completion of the legal analysis wi th respect to the first and second proposed 
alternative measures 
5.318.  We have reversed the Panel's overall conclu sion that Canada and Mexico failed to make a 
prima facie case that the amended COOL measure is "more trade-restrictive than necessary" on 
the basis of the first and second proposed altern ative measures. We, thus, turn to the request of 
Canada and Mexico that we complete the legal an alysis and find, based on their first and second 
proposed alternative measures, that the amended COOL measure is more trade restrictive than 
necessary, in violation of Article 2.2 of the TBT Agreement. 
5.319.  At the outset, we note that, on a number of occasions, the Appellate Body has completed 
the legal analysis with a view to facilitating the prompt settlement and effective resolution of the 
dispute.850 The Appellate Body has completed the legal analysis when sufficient factual findings by 
                                               
842 Canada's other appellant's submission, para. 112 (quoting Panel Reports, para. 6.59). 
843 Canada's other appellant's submission, para. 112. 
844 Canada's other appellant's submission, para. 112. 
845 Canada's other appellant's submission, para. 104. 
846 Canada's other appellant's submission, para. 115. 
847 Mexico's other appellan t's submission, para. 93. 
848 Mexico's other appellan t's submission, para. 93. 
849 Panel Reports, para. 7.613. 
850 See e.g. Appellate Body Reports, Australia – Salmon , paras. 117-136; US – Wheat Gluten , 
paras. 80-92; and Canada – Aircraft (Article 21.5 – Brazil) , paras. 43-52. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the panel or undisputed facts on the panel record allowed it to do so.851 The Appellate Body has 
declined to complete the legal analysis where doing so would involve addressing claims that the panel had not examined at all
852, particularly where, at the appellate review stage, the participants 
did not sufficiently address the issues the Appellate Body needed to resolve in order to complete 
the legal analysis, including the probative value of the evidence not considered by the panel.853 
5.320.  With these considerations in mind, we recall that the Panel did not make factual findings in 
respect of the reasonable availability or trade- restrictiveness of the first and second proposed 
alternative measures.854 Thus, we may only complete the legal analysis if there are sufficient 
undisputed facts on the Panel record that allow us to do so. In this case, there would need to be sufficient undisputed facts to enable us to make an assessment of whether the first and second proposed alternative measures are less trade restrictive than the amended COOL measure, 
reasonably available to the United States, and make an equivalent degree of contribution to the 
amended COOL measure's objective. We assess below whether there are undisputed facts on the Panel record in respect of the first an d second proposed alternative measures. 
5.321.  Turning to the first proposed alternativ e measure, we note that it would involve the 
removal of the three exemptions maintained under  the amended COOL measure for (i) entities not 
meeting the definition of the term "retailer"; (ii) ingredients in "processed food items"; and 
(iii) products served in "food service establishments".
855 The United States asserted before the 
Panel that these exemptions stemmed from "U.S. policymakers ultimately ma[king] the determination that the provision of such information in restaurants, by small retailers, and in all processed foods would cross the threshold for the overall level of cost that consumers and industry 
were willing to bear".
856 Canada and Mexico asserted before the Panel that origin information could 
be conveyed on products currently exempt from th e scope of the COOL requirements by indicating 
origin information on menus, signs, placards, blackboards where daily specials are posted, and on 
websites.857 Canada and Mexico acknowledged that this would involve the introduction of 
compliance costs for those entities that are currently exempt.858 Thus, on the one hand, the 
United States asserted that the exemptions were designed to contain costs at an overall level that 
consumers and industry could bear, whereas, on the other hand, Canada and Mexico suggested 
some means by which previously exempt entities  could implement the first proposed alternative 
measure, while acknowledging that this would involve costs. In that context, it is not apparent to us that there are sufficient undisputed  facts on the Panel record on the basis of which we could 
assess the reasonable availability to the United States of the first proposed alternative measure. 
Further, Canada and Mexico have not drawn our attention to undisputed facts on the Panel record on the basis of which we could assess the reasonable availability of the first proposed alternative 
measure, especially in respect of the removal of the exemptions.
859 
5.322.  Turning to the second proposed alternative measure, we note that its degree of trade-
restrictiveness was a contested element on which the Panel made no factual findings. In particular, 
the United States asserted before the Panel that  Canada and Mexico had not demonstrated that 
the second proposed alternative measure would be less trade restrictive than the amended COOL measure. In this regard, the United States noted that increased costs on previously exempt entities, including approximately 600,000 restaurants in the United States, could be conceived as 
worsening the trade-restrictiveness of the amended COOL measure.
860 Canada and Mexico argued 
                                               
851 See e.g. Appellate Body Reports, US – Gasoline , p. 19, DSR 1996:I, p. 18; Canada – Periodicals , 
p. 24, DSR 1997:I, p. 469; EC – Poultry , para. 156; EC – Hormones , para. 222; US – Shrimp , paras. 123-124; 
Japan – Agricultural Products II , para. 112; US – FSC , para. 133; Australia – Salmon , paras. 117-118; US – 
Lamb , paras. 150 and 172; US – Section 211 Appropriations Act , para. 352; EC and certain member States – 
Large Civil Aircraft , paras. 1174-1178; and US – Large Civil Aircraft (2nd complaint) , paras. 1272-1274. 
852 Appellate Body Reports, EC – Asbestos , paras. 79 and 82; US – Section 211 Appropriations Act , 
para. 343; EC – Poultry , para. 107; EC – Export Subsidies on Sugar , para. 337. 
853 Appellate Body Report, Japan – DRAMs (Korea) , para. 142. 
854 Panel Reports, paras. 7.491 and 7.503. 
855 Panel Reports, para. 7.471. 
856 United States' response to Pa nel question No. 13, para. 27. 
857 Mexico's response to Panel ques tion No. 46, para. 93; Canada's re sponse to Panel question No. 46, 
para. 102. 
858 Mexico's response to Panel ques tion No. 47, para. 96; Canada's re sponse to Panel question No. 47, 
para. 103. 
859 Mexico's other appellant's submission, paras.  142-146; Canada's other appellant's submission, 
paras.116-126; Canada's and Mexico's responses to questioning at the oral hearing. 
860 United States' first written submission to the Panel, paras. 176-177. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 that the second proposed alternative measure would be less trade restrictive because it included 
the flexibility of the 60-day inventory allowance, which the panel in the original proceedings found 
to have reduced the magnitude of the cost entailed by segregation.861 In that context, it is not 
apparent to us that there are sufficient undisputed  facts on the Panel record on the basis of which 
we could assess the respective degrees of trade-re strictiveness of the second proposed alternative 
measure vis-à-vis the amended COOL measure. Fu rther, Canada and Mexico have not drawn our 
attention to undisputed facts on the Panel record on the basis of which we could assess the 
respective degrees of trade-restrictiveness of the second proposed alternative measure vis-à-vis 
the amended COOL measure.862 
5.323.  In view of the foregoing considerations, we find that there are not sufficient undisputed 
facts on the record to complete the legal analysis of Canada's and Mexico's claims under Article 2.2 
of the TBT Agreement in respect of the firs t and second proposed alternative measures. 
Consequently, we are also not in a position to complete the legal analysis with respect to the alternative claims raised by Canada and Mexico on appeal.
863 
5.2.5  Claims of error with respect to the th ird and fourth proposed alternative measures 
5.324.  Canada and Mexico request us to reverse the Panel's finding that they did not adequately 
identify the third and fourth proposed alternative measures for the purpose of making a prima 
facie case that an alternative measure is reasonably available.864 Canada and Mexico allege, in 
particular, that the Panel erred in finding that it is the complainant that bears the burden of providing precise explanations with respect to th e implementation of the proposed alternative and 
of providing evidence substantiating the likely magnitude of the costs that would be associated 
with the alternative measure.
865 For Canada and Mexico, the Panel, thus, applied an incorrect 
standard of proof, which effectively relieved the Un ited States of its burden to adduce evidence 
and arguments in rebuttal. Canada and Mexico do not request the completion of the legal analysis 
under Article 2.2 of the TBT Agreement in respec t of the third and fourth proposed alternative 
measures.  
5.325.  We recall that the third proposed alternative measure would apply to muscle cuts from 
US-slaughtered animals and would entail a mandatory trace-back system to provide specific 
information on the precise location where th e animal was born, raised, and slaughtered.866 The 
fourth proposed alternative measure would prescribe that muscle cuts from US-slaughtered animals carry labels indicating the place of birth, raising, and slaughter according to "states and/or 
province(s)", in addition to the country design ations required by the amended COOL measure.
867 
5.326.  We begin our analysis with an overview of the Appellate Body's jurisprudence on what 
needs to be established to demonstrate the "reasonable availability" of a proposed alternative 
measure, and how the burden of proof is allocated in  that regard under Article 2.2. We then assess 
the burden of proof applied by the Panel in respec t of the "reasonable availability" of the third and 
fourth proposed alternative measures, and how the Panel allocated that burden among the parties. 
Finally, we evaluate whether the Panel erred in resp ect of the burden of proof it required of the 
complainants in respect of the "reasonable availability" of the third and fourth proposed alternative measures. 
                                               
861 Mexico's response to Panel qu estion No. 47, para. 98 (referring to Original Panel Reports, US – 
COOL , para. 7.435); Canada's response to Panel question  No. 47, para. 104 (referring to Original Panel 
Reports, US – COOL , para. 7.435). 
862 Mexico's other appellant's submission, paras.  157-160; Canada's other appellant's submission, 
paras.116-126; Canada's and Mexico's responses to questioning at the oral hearing. 
863 See supra , paras. 5.311-5.313. 
864 Mexico further requests us  to reverse the Panel's finding that it did not make a prima facie  case that 
its proposed third alternative measure would be less trade restrictive than the amended COOL measure. 
(Mexico's other appellant's submission, para. 184) We address this request in fn 906 infra. 
865 Canada's other appellant's submission, para. 154; Mexico's other appellant's submission, para. 184. 
866 Panel Reports, para. 7.504. 
867 Panel Reports, para. 7.565. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.327.  The Appellate Body stated in US – Tuna II (Mexico)  that, "[i]n making its prima facie  case, 
a complainant may … seek to identify a possible alternative measure that is less trade restrictive, makes an equivalent contribution to the relevant objective, and is reasonably available ."
868 It is 
then for the respondent to rebut this case by pr esenting evidence and arguments showing that the 
challenged measure is not more trade restrictive than necessary to achieve the contribution it 
makes toward the objective pursued, and by demo nstrating, for example, that the alternative 
measure identified by the complainant is not, in fact, "reasonably available".869 The nature and 
degree of evidence required for a complainant to establish the "reasonable availability" of a 
proposed alternative measure as part of a claim under Article 2.2 of the TBT Agreement will necessarily vary from measure to measure and from case to case.
870  
5.328.  That notwithstanding, we consider certain elements of Article 2.2 to be generally relevant 
to the question of what nature and degree of ev idence is required to establish the "reasonable 
availability" of a proposed alternative measure. In particular, it is important to keep in mind that such "reasonable availability" pertains to proposed alternative measures that function as 
"conceptual tool[s]" to assist in assessing whether a technical regulation is more trade restrictive 
than necessary.
871 Such alternative measures are of a hypothetical nature in the context of the 
analysis under Article 2.2 because they do not yet exist in the Member in question, or at least not 
in the particular form proposed by the complainant. These considerations should, in our view, 
inform the nature and degree of evidence requir ed to establish the "reasonable availability" of 
proposed alternative measures in making a prima facie  case under Article 2.2 of the 
TBT Agreement. 
5.329.  We also consider relevant jurisprudence relating to Article XX of the GATT 1994 and 
Article XIV of the GATS in assessing the appropri ate burden of proof concerning the "reasonable 
availability" under Article 2.2 of the TBT Agreement. In this regard, we note that the 
Appellate Body has considered Article XX of the GATT 1994 as relevant context for the 
interpretation of Article 2.2 of the TBT Agreement.872 At the same time, we are cognizant of the 
fact that Article XX of the GATT 1994 and Article XI V of the GATS are exceptions, while Article 2.2 
of the TBT Agreement sets out positive obligations. This may have implications for the allocation of 
the burden of proof. In this respect, we recall that the Appellate Body held in US – Clove 
Cigarettes  that:  
… the burden of proof in respect of a part icular provision of the covered agreements 
cannot  be understood in isolation from the overarching logic of that provision, and the 
function which it is designed to serve. On the contrary, it is by having regard for the function and rationale of a particular provision that an adjudicator can, adequately, 
assess the manner in which the burden of proof should be allocated under that 
provision.
873 
5.330.  In US – Gambling , the Appellate Body considered in respect of Article XIV(a) of the GATS 
that an alternative measure may be found not to be "reasonably available" where it is "merely 
theoretical in nature, for instance, where the responding Member is not capable of taking it, or where the measure imposes an undue burden on that Member, such as prohibitive costs or 
substantial technical difficulties".
874 In a similar vein, in China – Publications and Audiovisual 
Products , the Appellate Body stated in respect of Article XX(a) of the GATT 1994 that, "in order to 
establish that an alternative measure is not 'rea sonably available', the respondent must establish 
that the alternative measure would impose an undue  burden on it, and it must support such an 
                                               
868 Appellate Body Report,  US – Tuna II (Mexico) , para. 323. (emphasis added)  See also Appellate Body 
Reports, US – COOL , para. 379. 
869 Appellate Body Report,  US – Tuna II (Mexico) , para. 323. See also Appellate Body Reports, US – 
COOL , para. 379. 
870 See Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina) , para. 134 
(referring to Appellate Body Reports, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, p. 335; and US – 
Carbon Steel , para. 157). 
871 Appellate Body Report, US – Tuna II (Mexico) , para. 320. 
872 See Appellate Body Reports, US – COOL , fn 745 to para. 374 and fn 750 to para. 376; and US – 
Tuna II (Mexico) , fn 643 to para. 318 and fn 645 to para. 320. 
873 Appellate Body Report, US – Clove Cigarettes , para. 286. 
874 Appellate Body Report, US – Gambling , para. 308. (fn omitted) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 assertion with sufficient evidence."875 In that regard, the Appellate Body faulted the respondent for 
failing to provide "evidence to the [p]anel substantiating the likely nature or magnitude of the costs that would be associated with the proposed alternative, as compared to the current system".
876 The Appellate Body considered " some  change or administrative cost" would not suffice 
to meet the threshold of an "undue" burden on  the respondent that would render it merely 
theoretical in nature.877 In the same vein, the Appellate Body held in Korea – Various Measures on 
Beef that the relevant proposed alternative in that case "could well entail higher enforcement costs 
for the national budget".878 Additionally, the Appellate Body in EC – Seal Products  considered in 
respect of Article XX(a) of the GATT 1994 that the impact on the relevant industry might be pertinent, stating that "an alternative measure may be deemed not reasonably available due to significant costs or difficulties faced by the affected industry, in particular where such costs or 
difficulties could affect the ability or willingness of  the industry to comply with the requirements of 
that measure."
879 With these considerations in mind, we now assess the burden of proof applied by 
the Panel on the complainants in respect of the third and fourth proposed alternative measures. 
5.331.  We note that, at the outset of its asse ssment of the third proposed alternative measure, 
the Panel stated that the complainants' identification of an alternative measure should, at a minimum, enable a comparison with the challenged measure in terms of the relevant legal 
elements, and that an alternative measure may be found not to be reasonably available where, for 
example, it is merely theoretical in nature.
880 With respect to the cost of an alternative measure, 
the Panel stated that it was guided by the Appellate Body's clarification that a party bearing the burden of proof in the context of an alternativ e measure's reasonable availability must provide 
evidence "substantiating the likely nature or magnitude of the costs that would be associated with 
the proposed alternative, as compared to the current system".
881 The Panel noted that, in this 
statement, the Appellate Body was referring to the respondent's burden under Article XX of the 
GATT 1994 to show that an alternative measure would impose an undue  burden. The Panel also 
noted that, under Article 2.2 of the TBT Agreement,  the burden is on the complainant to make a 
prima facie  case that the proposed alternative measure is less trade restrictive, reasonably 
available, and that it makes an "equivalent" contri bution to the objective of the measure at issue. 
While the Panel did "not wish to imply that complainants are required in all cases to describe each and every specific aspect of an alternative measure and provide quantified cost estimates for each", it nonetheless considered that "adequate identification of alternative measures requires 
more precision than the sometimes vague and in some respects incomplete description of the 
implementation and ultimate magnitude of the asso ciate[d] costs provided by the complainants in 
this case".
882 Ultimately, the Panel faulted the complainants for having "not sufficiently 
explained"883 how their third proposed alternative measure would be implemented in the 
United States, and for having "put forward cost estimates that would only partially cover the [third] alternative".
884  
5.332.  Regarding the burden of proof to be applie d with respect to the fourth proposed alternative 
measure, the Panel referred back to its statements  regarding the burden of proof with respect to 
the third proposed alternative measure.885 The Panel then found with regard to the fourth 
alternative measure that the complainants had not provided a sufficient description of how their 
fourth alternative measure would be implemented in the United States886, and that they had not 
advanced sufficient arguments on the cost of the fourth alternative.887  
                                               
875 Appellate Body Report, China – Publications and Audiovisual Products , para. 327. (emphasis original; 
fn omitted) 
876 Appellate Body Report, China – Publications and Audiovisual Products , para. 328. 
877 Appellate Body Report, China – Publications and Audiovisual Products , para. 327. (emphasis original) 
878 Appellate Body Report, Korea – Various Measures on Beef , para. 181.  
879 Appellate Body Reports, EC – Seal Products , para. 5.277. 
880 Panel Reports, para. 7.506 (referring to Appellate Body Report, Brazil – Retreaded Tyres , para. 156). 
881 Panel Reports, para. 7.510 (quoting Appellate Body Report, China – Publications and Audiovisual 
Products , paras. 327-328). (fn omitted) See also Panel Reports, para. 7.603. 
882 Panel Reports, para. 7.556. 
883 Panel Reports, para. 7.553. 
884 Panel Reports, para. 7.556. (fn omitted) 
885 Panel Reports, para. 7.586 and fn 1286 ther eto, and para. 7.603 and fn 1316 thereto. 
886 Panel Reports, para. 7.602. 
887 Panel Reports, para. 7.609. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.333.  We recall that, with regard to the burden  of proof for establishing whether the third and 
fourth proposed alternative measures were "reasonably available", the Panel noted that, in China – 
Publications and Audiovisual Products , the Appellate Body faulted the respondent for failing to 
provide evidence to that panel substantiating the likely nature or magnitude of the costs that 
would be associated with the proposed alternative,  as compared to the measure at issue in that 
case.888 The Panel in this case acknowledged the fact that this statement was made in the context 
of an analysis under Article XX of the GATT 1994 rela ting to the question of whether an alternative 
measure identified by a complainant would impose an undue  burden on the respondent889; 
however, we do not see that the Panel placed this consideration within the particular context of Article 2.2 of the TBT Agreement in order to assess the manner in which the burden of proof should be allocated under that provision. As we have noted above, while Article XX provides for 
exceptions, Article 2.2 contains positive obligations, and this difference must be taken into account 
in the allocation of the burden of proof impo sed on respondents and complainants under the 
respective provisions. 
5.334.  In this regard, we have noted above the Appellate Body's observation in US – Clove 
Cigarettes  that the burden of proof in respect of a particular WTO provision "cannot be understood 
in isolation from the overarching logic of that provision, and the function which it is designed to 
serve".
890 We have considered above several elemen ts that inform the nature and degree of 
evidence required to establish the "reasonable av ailability", or lack thereof, of a proposed 
alternative measure for purposes of Article 2.2. In  particular, the function of alternative measures 
as "conceptual tool[s]" informs the nature and degree of evidence required. As noted, such 
alternative measures are of a hypothetical nature for purposes of an analysis under Article 2.2 
because they do not yet exist in the Member in question, or at least not in the particular form proposed by the complainants. Thus, we do not consider that complainants can be expected to 
provide complete and exhaustive descriptions of  the alternative measures they propose.  
5.335.  In the case at hand, we note that Canada and Mexico asserted before the Panel that their 
third and fourth proposed alternative measures were based on, inter alia , analogous measures that 
had been implemented in the United States and in other Members.
891 With regard to the 
complainants' reliance on examples of trace-back systems in other countries, the Panel held that 
these provided "little if any clarity about the prop osed trace-back system to be implemented in the 
United States".892 The Panel also stated that "the complainants' references to other traceability 
and foreign trace-back systems do not cohesively span the necessary stages between animal, 
carcass, and retail muscle cut", and that the complainants failed to elaborate on the "manner or cost implications of spanning these stages in the United States under the third alternative 
measure".
893 Ultimately, the Panel found, with respect to the third alternative measure, that the 
complainants had not addressed the stages of a trace-back system with sufficient clarity. On the basis that the complainants' explanations on the implementation and cost of the third alternative 
measure provide for "extensive flexibility both ov erall and for specific stages", the Panel faulted 
the complainants for not providing a "cohesive depiction of the complainants' third alternative measure".
894 With regard to cost, the Panel faulted the complainants for providing "cost estimates 
that would only partially cover the suggested alternative".895  
5.336.  Similarly, at the outset of its analysis of the fourth proposed alternative measure, the 
Panel stated that "adequately explaining how an alternative measure would be implemented is an essential part of the complainants' burden to identify an alternative measure that is not limited to 
a 'concept'."
896 In this regard, the Panel referred back to its statements regarding the allocation of 
the burden of proof in the context of the third alternative measure.897 Ultimately, the Panel found, 
                                               
888 Panel Reports, para. 7.510 (quoting Appellate Body Report, China – Publications and Audiovisual 
Products , para. 328). 
889 Panel Reports, fn 1130 to para. 7.510. 
890 Appellate Body Report, US – Clove Cigarettes , para. 286. (emphasis omitted) 
891 See e.g. Panel Reports, paras. 7.507, 7.513-7.523, 7.531-7.532, 7.535, 7.540-7.541, 7.547-7.549, 
7.569, 7.589-7.590, and 7.594. 
892 Panel Reports, para. 7.549. 
893 Panel Reports, para. 7.551. 
894 Panel Reports, para. 7.552. 
895 Panel Reports, para. 7.556. (fn omitted) 
896 Panel Reports, para. 7.586 (quoting United States' comments on Canada's response to Panel 
question No. 74). 
897 Panel Reports, fn 1286 to para. 7.586. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 with regard to the fourth alternative measure, that "the complainants' limited explanations did not 
provide a sufficient description of how their fourth alternative measure would be implemented in the United States."
898 With respect to the cost of the fourth alternative measure, the Panel, at the 
beginning of its analysis, referred back to the burd en of proof articulated in its assessment of the 
third alternative measure.899 Ultimately, the Panel concluded that the complainants had "not 
advanced sufficient arguments on the costs of the fourth alternative measure".900 In this respect, 
we note that the Appellate Body has held that a proposed alternative measure may be "reasonably 
available" even if it involves " some  change or administrative cost".901 In other words, not any 
change or any increase in cost by virtue of the implementation of an alternative measure would render a proposed alternative not "reasonably available". In our view, this has implications on the allocation of the burden of proof.  
5.337.  In this respect, we see differences between, on the one hand, the burden on the 
respondent under Article XX of the GATT 1994 to prove that an alternative measure proposed by the complainant would impose an undue burden – e.g. due to prohibitively high cost or substantial 
technical difficulties – and that this alternative is therefore not reasonably available and, on the 
other hand, the burden on the complainant under  Article 2.2 of the TBT Agreement to make a 
prima facie  case that the alternative measure it proposes would be reasonably available. Under 
Article XX of the GATT 1994, a respondent must establish that the alternative measure identified 
by the complainant is ultimately not reasonably available to the respondent because it is merely 
theoretical in nature – e.g. where the responding Member is not capable of taking it, or where the measure imposes an undue burden on that Memb er, such as prohibitive costs or substantial 
technical difficulties.
902 The particular circumstances of the responding Member – e.g. the capacity 
of the respondent to implement a proposed alte rnative measure that would be costly or would 
require advanced technologies – may be relevant for the assessment of whether or not a proposed 
alternative would impose an undue burden.903 The question of whether or to what extent a 
respondent would be capable of implementing a proposed alternative measure, and the cost involved in that implementation, depend on the specifics of implementation. While, under 
Article XX, the complainant has to identify alternatives, it is the respondent that has to adduce 
evidence substantiating why costs are prohibitive or technical difficulties are substantial.  
5.338.  To the contrary, under Article 2.2 of the TBT Agreement, a complainant must make a 
prima facie  case that its proposed alternative measure is indeed reasonably available. As under 
Article XX of the GATT 1994, we consider that a proposed alternative may be reasonably available 
even if it involves " some  change or administrative cost".
904 Thus, in the first instance, cost 
estimates may be relevant for the assessment of whether a proposed alternative measure is 
reasonably available. However, considering th at proposed alternative measures serve as 
"conceptual tool[s]", and taking into account that the specific details of implementation may depend on the capacity and particular circumstances of the implementing Member in question, it 
would appear incongruous to expect a complainan t, under Article 2.2 of the TBT Agreement, to 
provide detailed information on how a propos ed alternative would be implemented by the 
respondent in practice, and precise and comprehensive estimates of the cost that such implementation would entail. Rather, once a complainant has established prima fa cie that the 
proposed alternative is reasonably available to the respondent, it would be for the respondent to 
adduce specific evidence showing that associated  costs would be prohibitive, or that technical 
difficulties would be so substantial that implemen tation of such an alternative would entail an 
undue burden for the Member in question. 
5.339.  Accordingly, in the circumstances of the present case, the Panel should have considered 
whether the evidence provided by the complain ants, and, in particular, the examples of 
implemented trace-back systems in the United States and elsewhere, could have provided a 
sufficient indication that the costs of the proposed alternatives would not be a priori  prohibitive, 
and that potential technical difficulties associated with their implementation would not be of such a 
                                               
898 Panel Reports, para. 7.602. 
899 Panel Reports, fn 1317 to para. 7.603. 
900 Panel Reports, para. 7.608. 
901 See Appellate Body Report, China – Publications and Audiovisual Products , para. 327. (emphasis 
original; fn omitted) 
902 Appellate Body Report, US – Gambling , para. 308. 
903 Appellate Body Report, Brazil – Retreaded Tyres , para. 171. 
904 See Appellate Body Report, China – Publications and Audiovisual Products , para. 327. (emphasis 
original) WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 substantial nature that they would render the proposed alternatives merely theoretical in nature. 
The Panel should have then considered to what extent the United States had submitted evidence 
substantiating that the proposed alternative measur es were indeed merely theoretical in nature, or 
entailed an undue burden, for instance, because they involved prohibitively high costs or would 
entail substantial technical difficulties. 
5.340.  Thus, having failed to engage in the inqu iries outlined above, we consider that the Panel 
did not properly allocate the burden of proof under  Article 2.2 of the TBT Agreement in finding that 
Canada and Mexico had not provided sufficient expl anation of how their third and fourth proposed 
alternative measures would be implemented in the United States, and of the costs associated with 
those alternative measures.905 Accordingly, we reverse the Panel's findings, in paragraphs 7.564 
and 7.610 of the Panel Reports, that Canada and Mexico did not make a prima facie  case that their 
third and fourth proposed alternative measures are reasonably available for purposes of their 
claims under Article 2.2 of the TBT Agreement.906  
5.3  Article III:4 and Article IX of the GATT 1994 
5.341.  We now turn to consider the United States' appeal of the Panel's findings under 
Article III:4 and Article IX of the GATT 1994. The Unit ed States requests us to find that the Panel 
erred by failing to take into account Article IX as relevant context in interpreting Article III:4.907 
For the United States, the context of Article IX  informs the interpretation and application of 
Article III:4. The United States alleges that the Panel erred in finding that less favourable treatment under Article III:4 could be demonstrated based on a finding of detrimental impact without a further inquiry into the context provided by Article IX.  
5.342.  Canada and Mexico request us to uphold the Panel's finding in respect of Article III:4 of 
the GATT 1994 and to reject the United States' alle gation that the Panel erred by failing to take 
into account Article IX of the GATT 1994 as relevant context in its interpretation of Article III:4.
908 
Canada also contends that there are strong reasons, based on considerations of due process, not 
to entertain the United States' claim based on Article IX because it was not raised before the Panel, but only on appeal.
909 Mexico maintains that Article IX is not an exception to Article III:4. 
For Mexico, both provisions apply cumulatively and Members must comply with both of them 
simultaneously.910  
5.3.1  The Panel's findings  5.343.  Before the Panel, Canada and Mexico  argued that the amended COOL measure is 
inconsistent with Article III:4 of the GATT 1994 because it modifies the conditions of competition 
in the US market to the detriment of Canadian and Mexican livestock. Canada and Mexico requested the Panel to address their claims under Article III:4 irrespective of the Panel's findings 
under Article 2.1 of the TBT Agreement.
911 In response, the United States contended that the 
existence of a detrimental impact alone does not imply that the measure accords less favourable treatment within the meaning of Article III:4 of the GATT 1994.
912 Rather, a panel must examine 
whether the detrimental impact can be explained by other circumstances or factors that do not 
reflect discrimination.913 In this regard, the United States explained that any detrimental impact of 
the amended COOL measure can be explained by th e information to be conveyed to the consumer 
                                               
905 Panel Reports, paras. 7.553, 7.556, 7.557, 7.602, and 7.608. 
906 We see no need, in the light of the present findin g to also address Mexico's request for the reversal 
of the Panel's intermediate finding that the complainants did not make a prima facie  case that the third 
alternative measure would be less trade restrictive th an the amended COOL measure, in paragraph 7.560 of 
the Panel Reports. (Mexico's other appellant's submission, para. 184) Furthermore, we recall that Canada and Mexico do not request completion of the legal analysis under Article 2.2 of the TBT Agreement in respect of the 
third and fourth proposed alternative measures. 
907 United States' appellant's submission, para. 290. 
908 Canada's appellee's submission, para. 150; Mexico's appellee's submission, para. 138. 
909 Canada's appellee's submission, para. 144. 
910 Mexico's appellee's submission, para. 128. 
911 Panel Reports, para. 7.618 (referring to Canada's first written submission to the Panel, para. 90; and 
Mexico's first written submission to the Panel, para. 213). 
912 United States' first written submission to the Panel, para. 122 (referring to Appellate Body Report, 
Dominican Republic – Import  and Sale of Cigarettes , para. 96), and para. 123. 
913 Panel Reports, para. 7.621 (quoting United States' first written submission to the Panel, para. 123). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 in the sense that the recordkeeping and verification requirements are the same for companies 
processing imported and domestic livestock, and the information conveyed on the labels is also the same.
914 However, the United States made no claim before the Panel and presented no argument 
with respect to Article IX of the GATT 1994. 
5.344.  The Panel rejected the United States' request that it assess whether any detrimental 
impact of the amended COOL measure could be explained by other factors that do not reflect discrimination in the context of the analysis of less favourable treatment under Article III:4.
915 The 
Panel recalled that, in EC – Seal Products , the Appellate Body stated that Article III:4 is 
"concerned with ensuring effective equality of competitive opportunities for imported products"916, 
and permits regulatory distinctions to be drawn be tween products "provided that such distinctions 
do not modify the conditions of competition between imported and like domestic products".917 
Furthermore, the Panel cited the Appellate Body's statements that, if a measure has a detrimental 
impact on the conditions of competition for like imported products, then such detrimental impact will amount to treatment that is "less favourable" within the meaning of Article III:4, and that, "for 
the purposes of an analysis under Article III:4, a panel is [not] required to examine whether the 
detrimental impact of a measure on competitive opportunities for like imported products stems exclusively from a legitimate regulatory distinction."
918 The Panel considered that this "directly 
dispose[d] of similar arguments" in the presen t disputes, and rejected, on that basis, the 
United States' suggestion to address legitimate regulatory distinctions in the context of less favourable treatment under Article III:4.
919 Accordingly, the Panel found that the amended COOL 
measure is inconsistent with Article III:4 of the GATT 1994.920 The Panel did not refer to Article IX 
of the GATT 1994 in its analysis of Canada's and Mexico's claims under Article III:4. 
5.3.2  Article IX of the GATT 1994 as rele vant context for the interpretation of 
Article III:4 of the GATT 1994 
5.345.  We now turn to examine the United St ates' claim that Articl e IX of the GATT 1994 
constitutes relevant context for the interpretation  of Article III:4 of the GATT 1994, and that the 
Panel erred by failing to consider this in its analysis under Article III:4. For the United States, 
Articles IX:2 and IX:4 are relevant context in forming the interpretation and application of 
Article III:4 in the sense that these provisions recognize that laws and regulations aimed at providing consumer information on origin may cause "difficulties and inconveniences" to exporting Members and increase the cost of imported products.
921 On this basis, the United States asserts 
that the Panel erred in finding that less favourable treatment could be demonstrated based on the 
existence of detrimental impact without further in quiry into the context provided by Article IX. 
5.346.  For the United States, Article III:4, when read in the context of Article IX, provides 
regulatory space for Members to provide consumers with information on the origin of products in 
the sense that "reasons for any difficulties and inconveniences caused by the measures" should be taken into account.
922 This requires consideration of whether difficulties and inconveniences could 
"be reduced, with due regard to the necessity of protecting consumers, and what the reasons 
would be for any increased cost for imported products caused by the measures, in particular whether the measures unreasonably increase the cost of imported products."
923 
5.347.  In response, Canada contends that the legal test under Article III:4 is well established and 
should not be modified as suggested by the United States. Moreover, Canada argues that we 
should not entertain the United States' argument on appeal based on Article IX because the "complete absence" of legal arguments in this regard before the compliance Panel raises due 
process concerns.
924 Mexico contends that Article IX is not an exception to Article III:4, but that 
                                               
914 United States' first written submission to the Panel, para. 124. 
915 Panel Reports, para. 7.625. 
916 Panel Reports, para. 7.623 (quoting Appellate Body Reports, EC – Seal Products , para. 5.101). 
917 Panel Reports, para. 7.623 (quoting Appellate Body Reports, EC – Seal Products , para. 5.116). 
918 Panel Reports, para. 7.624 (quoting Appellate Body Reports, EC – Seal Products , 
paras. 5.116-5.117). 
919 Panel Reports, para. 7.625. 
920 Panel Reports, para. 7.643. 
921 United States' appellant's submission, para. 284. 
922 United States' appellant's submission, para. 284. 
923 United States' appellant's submission, para. 284. 
924 Canada's appellee's submission, para. 144. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 both provisions apply cumulatively and that Members must comply with both provisions 
simultaneously.925  
5.348.  We begin by addressing the due process co ncerns raised by Canada. Canada contends that 
the United States did not raise an argument based on Article IX before the Panel, and that 
entertaining this argument on appeal, therefore, raises due process concerns.926 We note that, 
indeed, the United States did not present arguments with regard to Article IX to the Panel. Only on appeal does the United States argue that Article IX constitutes relevant context for the 
interpretation of Article III:4 of the GATT 1994, an d alleges that the Panel erred by not taking this 
into account in its interpretation of Article III:4.  
5.349.  In this respect, we note that the Appellate Body held in Canada – Aircraft  that "new 
arguments are not per se  excluded from the scope of appellate review, simply because they are 
new."
927 At the same time, the Appellate Body recogn ized that Article 17.6 of the DSU precludes 
engaging with new arguments where doing so wo uld require the Appellate Body to review new 
facts that were not before the panel. Moreover, if complaining parties were allowed to raise on 
appeal new arguments that would require the Appellate Body to solicit, receive, and review new 
facts, this could also undermine the due process rights of responding parties, which would not 
have had the opportunity to rebut such allega tions by submitting evidence in response.928 We 
further note that, in US – FSC , the Appellate Body declined to consider a new argument on appeal 
that would have required it "to address legal issues quite different from those which confronted the [p]anel and which may well [have] require[d] proof of new facts".
929 
5.350.  In the present case, the United States argues that Article IX constitutes relevant context 
for the interpretation of Article III:4 of the GATT 1994. We consider that this is a legal argument 
relating to the proper interpretation of the term "treatment no less favourable" in Article III:4. This issue was before the Panel and was addressed in the Panel Reports. As such, it does not require us 
to solicit or review new facts or address issues with which the Panel was not confronted. 
Accordingly, we do not consider that addressing th e United States' argument based on Article IX of 
the GATT 1994 would raise concerns of due process, and we, therefore, proceed with our analysis.  
5.351.  We note that Article III:4 of the GATT 1994 provides, in relevant part: 
National Treatment on Internal Taxation and Regulation 
… 
4. The products of the territory of any Me mber imported into the territory of any 
other Member shall be accorded treatment no less favourable than that accorded to 
like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sa le, purchase, transportation, distribution or 
use. … 
5.352.  Article IX of the GATT 1994 provides: 
Marks of Origin 
1. Each Member shall accord to the products of the territories of other Members 
treatment with regard to marking requirements no less favourable than the treatment accorded to like products of any third country. 
2. The Members recognize that, in adopting and enforcing laws and regulations 
relating to marks of origin, the difficulties and inconveniences which such measures 
may cause to the commerce and industry of exporting countries should be reduced to 
                                               
925 Mexico's appellee's submission, para. 128. 
926 Canada's appellee's submission, para. 144 (referring to Appellate Body Reports, EC – Seal Products , 
para. 5.69). 
927 Appellate Body Report, Canada – Aircraft , para. 211. 
928 Appellate Body Report, Canada – Aircraft , para. 211. 
929 Appellate Body Report, US – FSC , para. 103. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 a minimum, due regard being had to the necessity of protecting consumers against 
fraudulent or misleading indications. 
3. Whenever it is administratively prac ticable to do so, Members should permit 
required marks of origin to be a ffixed at the time of importation. 
4. The laws and regulations of Members relating to the marking of imported 
products shall be such as to permit compliance without seriously damaging the products, or materially reducing their value, or unreasonably increasing their cost. 
5. As a general rule, no special duty or penalty should be imposed by any Member 
for failure to comply with marking requirements prior to importation unless corrective marking is unreasonably delayed or deceptive marks have been affixed or the required marking has been intentionally omitted. 
6. The Members shall co-operate with each other with a view to preventing the use 
of trade names in such manner as to misrepre sent the true origin of a product, to the 
detriment of such distinctive regional or geographical names of products of the 
territory of a Member as are protected by its legislation. Each Member shall accord full 
and sympathetic consideration to such requests or representations as may be made by any other Member regarding the applicat ion of the undertaking set forth in the 
preceding sentence to names of products which have been communicated to it by the 
other Member. 
5.353.  We recall that three elements must be demonstrated to establish that a measure is 
inconsistent with Article III:4 of the GATT 1994: (i) that the imported and domestic products are 
"like products"; (ii) that the measure at issue is a "law, regulation, or requirement affecting the 
internal sale, offering for sale, purchase, transportation, distribution, or use" of the products at issue; and (iii) that the treatment accorded to imported products is "less favourable" than that 
accorded to like domestic products.
930 The United States' claim on appeal relates to the third 
element, namely, whether the measure at issue accords less favourable treatment to imported 
products than to like domestic products.  
5.354.  The United States' appeal raises the question of whether Articles IX:2 and IX:4 may be of 
contextual relevance for the interpretation of "treatment no less favourable" in Article III:4.931 In 
this regard, we recall the Appellate Body's statement in China – Auto Parts  that "context is 
relevant  for a treaty interpreter to the extent that it may shed light on the interpretative issue to 
be resolved, such as the meaning of the term or phrase at issue".932 Therefore, for a particular 
provision to serve as relevant context in any given situation, "it must not only fall within the scope of the formal boundaries identified in Article 31(2) [of the Vienna Convention
933], it must also have 
some pertinence to the language being interpreted that renders it capable of helping the 
interpreter to determine the meaning of such language."934  
5.355.  The "language being interpreted" here is "treatment no less favourable" in Article III:4 of 
the GATT 1994. The United States submits that Ar ticles IX:2 and IX:4 of the GATT 1994 recognize 
that laws and regulations informing consumers about the origin of products may cause difficulties and inconveniences to exporting Members and may in crease the cost of imported products. For the 
United States, Articles IX:2 and IX:4 suggest a particular interpretation of "treatment no less 
favourable" in Article III:4, where origin marks are at issue. In particular, the United States 
asserts that "treatment no less favourable" in Article III:4 should be interpreted as providing regulatory space for Members to provide consumers with information as to the origin of products in 
                                               
930 Appellate Body Reports, EC – Seal Products , para. 5.99 (referring to Appellate Body Report, Thailand 
– Cigarettes (Philippines) , para. 127, in turn referring to Appellate Body Report, Korea – Various Measures on 
Beef, para. 133). 
931 In response to questioning at the oral hearing, the United States clarified that it did not seek to raise 
Article IX as a defence. Rather, the United States contends that Article IX of the GATT 1994 is context relevant for the interpretation of Article III:4 of the GATT 1994. 
932 Appellate Body Reports, China – Auto Parts , para. 151. (emphasis original) 
933 Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, UN Treaty Series, 
Vol. 1155, p. 331. 
934 Appellate Body Reports, China – Auto Parts , para. 151. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 the sense that "reasons for any difficulties and inconveniences caused by the measures" should be 
taken into account.935 
5.356.  We note that Article IX:2 calls for a reduction  of difficulties and inconveniences that laws 
and regulations relating to marks of origin may cause to exporters. Furthermore, Article IX:4 
requires that compliance with such laws and regulations should be possible without materially 
reducing the value of the products, or unnecessarily  increasing the cost of the products. Hence, 
these provisions call for a limitation of the impact of the use of marks of origin.  
5.357.  We are not persuaded that the objective of  reducing the difficulties and inconveniences 
caused by instruments relating to marks of orig in set out in Article IX:2, and the objective of 
avoiding an unreasonable increase in the cost of the products at issue under Article IX:4, suggest a more flexible interpretation of "treatment no less favourable" in Article III:4 of the GATT 1994, 
where marking requirements are concerned. In particular, we do not consider that the reference to 
"difficulties and inconveniences" in Article IX:2 affects the interpretation of "treatment no less favourable" under Article III:4. Nor do we consider that the obligation in Article IX:4 that 
regulations relating to the marking of products shall be such as to permit compliance without 
seriously damaging the products, or materially reducing their value, or unreasonably increasing their cost, affects the interpretation of "treatment no less favourable" under Article III:4. Rather, 
we see Articles IX:2 and IX:4 as setting out obligat ions with regard to "marking requirements" that 
are separate from, and additional to, the national treatment obligation in Article III:4 of the GATT 1994. 
5.358.  Finally, we note that the United States' argument is based on the proposition that the 
analysis of less favourable treatment under Article III:4 should include an inquiry into whether the 
detrimental impact of a measure on imports is unrelated to foreign origin, and can be explained by other factors that do not reflect discrimination, in this case, the fact that the amended COOL 
measure pursues consumer information objectives. However, we note that this argument is based 
upon a proposition that was expressly rejected by the Appellate Body in US – Clove Cigarettes . In 
that dispute, the Appellate Body rejected the proposition that Article III:4 of the GATT 1994 
includes consideration of whether the detrimental impact on imports is unrelated to the foreign 
origin of the product.
936 Moreover, in EC – Seal Products, the Appellate Body clarified that the 
analysis of whether a measure causes detrimental impact on competitive opportunities for like imported products under Article III:4 "does not involve an assessment of whether such detrimental 
impact stems exclusively from a legitimate regulatory distinction".
937  
5.359.  For the reasons set out above, we find that the Panel did not err by not attributing 
contextual relevance to Article IX of the GATT 19 94 in its interpretation of Article III:4 of the 
GATT 1994.  
5.4  Article III:4 and Ar ticle XX of the GATT 1994  
5.360.  We now turn to consider the United States' claim that the Panel erred in the way it 
addressed the United States' request, at the inte rim review stage, regarding the availability of 
Article XX of the GATT 1994 as an exception for Article III:4 of the GATT 1994 with respect to the 
amended COOL measure.938 The United States requests us to complete the legal analysis under 
Article XX, and to find that an exception under Article XX would be available with respect to the 
amended COOL measure.939 In particular, the United States submits that the amended COOL 
measure should be considered to qualify as "neces sary" within the meaning of Article XX, and that 
it satisfies the requirements of the chapeau of Article XX of the GATT 1994.940  
5.361.  Canada and Mexico request us to uphold the Panel's finding in respect of Article III:4 of 
the GATT 1994, and to reject the United States' request to find that the Panel erred by not addressing the availability of Article XX of th e GATT 1994 as an exception for the amended COOL 
                                               
935 United States' appellant's submission, para. 284. 
936 Appellate Body Report,  US – Clove Cigarettes , fn 372 to para. 179. 
937 Appellate Body Reports, EC – Seal Products , para. 5.105. 
938 United States' appellant's submission, para. 292. 
939 United States' appellant's submission, para. 301. 
940 United States' appellant's submission, paras. 303-304. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 measure, as well as the United States' request to complete the legal analysis and determine which 
of the Article XX exceptions would be available.941  
5.4.1  Interim review section of the Panel Reports  5.362.  The United States did not invoke a defence under Article XX of the GATT 1994 either in its 
written submissions to the Panel or in its oral statements at the Panel meetings.  
5.363.  At the interim review stage, the United States requested the Panel to review its analysis 
under Article III:4 of the GATT 1994 and "address the availability of Article XX as an exception for 
Article III:4 with respect to COOL".
942 The United States noted the Panel's reliance on the 
Appellate Body reports in EC – Seal Products , and observed that the circulation of those reports 
occurred after the period for the parties to make their arguments and submit evidence to the Panel had ended. 
5.364.  In particular, the United States referr ed to the statement by the Appellate Body in EC – 
Seal Products  that "a Member's right to regulate under the sixth recital [of the preamble of the 
TBT Agreement], is not, in principle, different from the balance set out in the GATT 1994, where 
obligations such as national treatment in Article III are qualified by the general exceptions 
provision of Article XX."
943 The United States contended that the Panel did not find the amended 
COOL measure to be inherently inconsistent with  Article 2.1 of the TBT Agreement. Rather, the 
Panel's analysis suggested that "one would expect there to be a COOL measure that causes a 
detrimental impact on imports yet is consistent with Article 2.1 of the TBT Agreement."944 
Accordingly, for the United States, the Appellate Body's approach in EC – Seal Products  suggests 
that there must be an Article XX exception that would be available for the amended COOL 
measure. The United States argued that, because the Appellate Body reports in EC – Seal Products 
were circulated only after the period for the parties to make their submissions to the Panel had ended, it had not been able to shape its submissi ons according to the Appellate Body's finding in 
EC – Seal Products  regarding a respondent's reliance on an Article XX exception "with respect to a 
claim under Article III:4 of the GATT 1994 even where the measure could be consistent with Article 2.1 of the TBT Agreement."
945 
5.365.  In response to these comments of the United States at the interim review stage, the Panel 
first noted that the United States had not raised  a defence under Article XX and had not identified 
any paragraph of that provision as relevant to the present disputes.946 Rather, the United States' 
request that the Panel "address the availability of Article XX as an exception with respect to COOL" 
was "quite general".947 Furthermore, the Panel stated that the United States' position "appear[ed] 
to be predicated" on a perceived conflict between, on the one hand, the Appellate Body's clarification of the relationship of the national  treatment obligation under the GATT 1994 and the 
TBT Agreement and, on the other hand, the implications for a hypothetical measure found to be 
consistent with Article 2.1 of the TBT Agreem ent but in violation of Article III:4 of the 
GATT 1994.
948 The Panel explained that it had found the amended COOL measure to be in violation 
of both Article 2.1 of the TBT Agreement and Ar ticle III:4 of the GATT 1994, and that it was, 
therefore, not faced with the hypothetical situat ion suggested by the United States. Finally, the 
Panel observed that accepting the United States' request at the interim review stage would require 
examination of an issue for which neither the United States, nor the complainants, had provided 
specific evidence or arguments.949 
                                               
941 Canada's appellee's submission, para. 150; Mexico's appellee's submission, para. 137. 
942 Panel Reports, para. 6.70. 
943 Panel Reports, para. 6.70 (quo ting Appellate Body Reports, EC – Seal Products , para. 5.122, in turn 
referring to Appellate Body Report, US – Clove Cigarettes , paras. 93-96). 
944 Panel Reports, para. 6.70. 
945 Panel Reports, para. 6.70.  
946 Panel Reports, para. 6.73. 
947 Panel Reports, para. 6.73. 
948 Panel Reports, para. 6.74. 
949 Panel Reports, para. 6.75. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 5.4.2  The availability of an Article XX ex ception with respect to the amended COOL 
measure 
5.366.  We turn now to examine the United States' claim that the Panel erred in the way it 
addressed the United States' request, at the inte rim review stage, regarding the availability of 
Article XX of the GATT 1994 as an exception to Ar ticle III:4 of the GATT 1994 with respect to the 
amended COOL measure. The United States requests us to complete the legal analysis under Article XX, and to find that an exception under Article XX would be available with respect to the 
amended COOL measure.
950 In particular, the United States submits that the amended COOL 
measure should be considered to qualify as "neces sary" within the meaning of Article XX, and that 
the amended COOL measure satisfies the requirem ents of the chapeau of Article XX of the 
GATT 1994.951 
5.367.  On appeal, the United States presents arguments similar to those it presented at the 
interim review stage of the Panel proceedings. Firs t, the United States argues that, because the 
Appellate Body reports in EC – Seal Products  were circulated only after the conclusion of the period 
for the parties in the present disputes to submit evidence and arguments to the Panel, the current 
Panel proceedings present an extraordinary situatio n. The United States highlights the statement 
of the Appellate Body in EC – Seal Products  that the balance between the desire to avoid creating 
unnecessary obstacles to international trade and the recognition of Members' right to regulate 
under the TBT Agreement is not, in principle, di fferent from the balance set out in the GATT 1994, 
where obligations such as national treatment in Article III are qualified by the general exceptions of Article XX.
952 The United States further argues that, while the Panel found the amended COOL 
measure to be inconsistent with Article 2.1 of the TBT Agreement, it nevertheless "contemplate[d] 
that the amended COOL measure could be brought into compliance with the Panel's findings on Article 2.1 of the TBT Agreement".
953 If the amended COOL measure were to be brought into 
compliance with Article 2.1 of the TBT Agreement, it would nonetheless be in breach of 
Article III:4 of the GATT 1994 because there would remain a detrimental impact, unless the measure qualified under an exception under Article XX. The United States considers that, if no 
exception under Article XX was available for the amended COOL measure, its right to regulate 
under the GATT 1994 and under the TBT Agreement wo uld be out of balance. The United States 
alleges that the Panel, therefore, erred by not a ddressing the availability of Article XX as an 
exception to Article III:4 with respect to the amended COOL measure. 
5.368.  Canada submits that the United States' request is an attempt to advance a defence under 
Article XX of the GATT 1994 at the final stage of these disputes, and that this is incompatible with the principles of due process. Moreover, in Canada's view, the Panel was correct in denying the 
United States' request because the United States had failed to provide specific evidence or 
arguments to make a prima facie  case that the amended COOL measure is justified under 
Article XX. In addition, Canada disagrees with the United States' argument that it could not have 
foreseen the outcome of the EC – Seal Products  disputes. For Canada, the Appellate Body had 
already clarified, in US – Tuna II (Mexico) , that the scope and content of the national treatment 
obligations of the TBT Agreement and the GATT 1994 are not the same
954, and the findings in EC – 
Seal Products  are in keeping with that.  
5.369.  Mexico submits that the United States failed to indicate before the Panel a specific 
paragraph of Article XX that it considers relevant in the present disputes. For Mexico, this made it 
impossible to follow the legal test under Article XX, as prescribed by the Appellate Body, and 
affected Mexico's due process right to rebut an Ar ticle XX defence. Furthermore, Mexico disagrees 
with the United States that the findings of the Appellate Body in EC – Seal Products  were 
unforeseeable, and notes that these findings are in line with the Appellate Body report in US – 
Clove Cigarettes .955  
                                               
950 United States' appellant's submission, para. 301. 
951 United States' appellant's submission, para. 304. 
952 United States' appellant's submission, para. 291.  
953 United States' appellant's submission, para. 295. 
954 Canada's appellee's submission, para. 146 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 405). 
955 Mexico's appellee's submission, para. 134 (referring to Appellate Body Report, US – Clove Cigarettes , 
para. 96). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 167 - 
 
 5.370.  At the outset of our analysis, we note th at Article XX sets out the general exceptions to 
substantive obligations of the GATT 1994.956 It is well established that the analysis under 
Article XX is two-tiered: in order to be justified under Article XX, a measure must not only fall under one of its paragraphs, it must also satisfy the requirements contained in its chapeau.
957 
Moreover, the burden of establishing a defence under Article XX rests on the party asserting it.958 
Specifically, it is for the respondent to establish a prima facie case that a measure is justified 
under Article XX. It is then for the complainant to rebut such prima facie  case.959  
5.371.  As we have noted above, the United States  did not invoke Article XX either in its written 
submissions to the Panel or in its oral statements at the Panel meetings. It was not until the interim review stage of these compliance proceedings before the Panel that the United States referred for the first time to Article XX of the GATT 1994. Even then, however, the United States 
did not identify a specific paragraph of Arti cle XX or provide arguments and evidence to 
demonstrate that the amended COOL measure meet s the requirements of one of the paragraphs 
of Article XX and of the chapeau. Rather, the United States requested the Panel to "address the 
availability of Article XX as an exceptio n for Article III:4 with respect to COOL".
960 On appeal, the 
United States alleges that the Panel erred in the way it addressed the United States' request regarding the availability of Article XX at the interim review stage.  
5.372.  With regard to the Panel's obligations at th e interim review stage, we note that Article 15.3 
of the DSU stipulates that "the final panel report shall include a discussion of the arguments made at the interim review stage." In the present case, the Panel responded to the United States' request to address the availability of Article XX of the GATT 1994 as an exception for Article III:4 
of the GATT 1994 with respect to the amended COOL measure by discussing three different 
considerations.  
5.373.  First, the Panel noted that the United States' request was "quite general".
961 The Panel 
observed that the United States had not advanced or argued a defence under Article XX of the 
GATT 1994, that it had not identified any paragraph of that Article as relevant to the present disputes, and that the United States "merely request[ed]" that the Panel "address the availability 
of Article XX as an exception with respect to COOL".
962  
5.374.  Second, the Panel observed that the hypothetical situation suggested by the United States 
of a measure found to be consistent with Article 2.1 of the TBT Agreement and, at the same time, inconsistent with Article III:4 of the GATT 1994 did not arise in these disputes because the Panel 
had found the amended COOL measure to be in consistent with both Article 2.1 of the 
TBT Agreement and Article III:4 of the GATT 1994.
963  
5.375.  Third, the Panel noted that addressing the availability of Article XX of the GATT 1994 as an 
exception for Article III:4 of the GATT 1994 with respect to the amended COOL measure, at the 
interim review stage, would require examination of an issue for which neither the United States, nor the complainants, had presented specific eviden ce or arguments. The Panel also noted that the 
United States had not invoked Article XX of the GATT 1994 or any relevant paragraph(s) thereof, 
or adduced arguments under Article XX at an appropriate stage of the proceedings.
964 
5.376.  These three considerations show that the Panel Reports include a discussion of the 
arguments raised by the United States at the interim review stage, as required by Article 15.3 of 
the DSU.  
5.377.  We see no reason to disagree with the first consideration set out by the Panel in this 
regard. The Panel correctly noted that the United States, as the responding Member, had not 
                                               
956 Appellate Body Report, US – Shrimp , para. 121.  
957 Appellate Body Report, US – Gasoline , p. 22, DSR 1996:I, p. 20. 
958 Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:I, p. 337. 
959 Appellate Body Report, US – Gambling , para. 282. 
960 Panel Reports, para. 6.70. 
961 Panel Reports, para. 6.73. 
962 Panel Reports, para. 6.73. 
963 Panel Reports, para. 6.74. 
964 Panel Reports, para. 6.75. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 168 - 
 
 invoked a defence under Article XX before the Panel, and that it had not identified a specific 
paragraph of Article XX that would apply to the amended COOL measure.  
5.378.  We also agree with the second consideration of the Panel. The hypothetical situation 
suggested by the United States, of a measure found to be consistent with Article 2.1 of the 
TBT Agreement and, at the same time, found to be inconsistent with Article III:4 of the 
GATT 1994, does not arise in these disputes. Ra ther, the Panel found the amended COOL measure 
to be inconsistent with both Article 2.1 of th e TBT Agreement and Articl e III:4 of the GATT 1994.  
5.379.  Finally, we see no error in the Panel's consideration that addressing, at the interim review 
stage, the availability of Article XX as an except ion for Article III:4 of the GATT 1994 with respect 
to the amended COOL measure would have required  examination of an issue for which neither the 
United States, nor the complainants, had provided specific evidence or arguments. We note that 
the responding party should invoke a defence in the early stages of panel proceedings because, 
once it has received the first written submission of a complaining party, it is likely to be aware of 
the defences it might invoke and the evidence needed to support them.965 Consideration of a 
defence raised for the first time at interim re view would give rise to due process concerns. 
5.380.  In the light of the above considerations, we  find that the Panel did not err, in paragraphs 
6.73 to 6.75 of the Panel Reports, in the way it addressed the United States' request, at the 
interim review stage, relating to the availability of Article XX of the GATT 1994 as an exception to 
Article III:4 of the GATT 1994 with respect to th e amended COOL measure. Consequently, the 
premise of the United States' request on appeal that we complete the legal analysis and find that the amended COOL measure would be justified under one of the exceptions set out in Article XX of 
the GATT 1994 is not fulfilled and we, therefore, do not address it. 
5.5  Article XXIII:1(b) of the GATT 1994  5.381.  Canada, Mexico, and the United States each conditionally raises an appeal under 
Article XXIII:1(b) of the GATT 1994. Specifically, if we were to reverse the Panel's finding of 
violation under Article 2.1 of the TBT Agreemen t and Article III:4 of the GATT 1994, Canada and 
Mexico request us to reverse the Panel's decision to exercise judicial economy, and to complete 
the legal analysis in respect of Canada's and Mexico's non-violation claims under Article XXIII:1(b) 
of the GATT 1994.
966  
5.382.  For its part, in the event that the conditions of Canada's and Mexico's appeals are fulfilled, 
the United States appeals the Panel's conclusion that the complainants' claims were within the 
Panel's terms of reference.967 Specifically, the United States argues that the mandate of a panel 
under Article 21.5 of the DSU to review the consistency of a measure taken to comply does not extend to non-violation claims under Article XX III:1(b) of the GATT 1994 and Article 26.1 of the 
DSU.
968  
5.383.  We have upheld the Panel's findings that the amended COOL measure is inconsistent with 
Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994. Accordingl y, we find that the 
condition upon which Canada's and Mexico's appeals under Article XXIII:1(b) of the GATT 1994 are 
premised is not satisfied and, consequently, we make no finding with respect to whether the Panel 
erred by exercising judicial economy with re spect to Canada's and Mexico's claims under 
Article XXIII:1(b). 
5.384.  The United States' appeal is premised on the condition of Canada's and Mexico's appeals 
being satisfied. We have found that the condition of Canada's and Mexico's appeals is not satisfied. Consequently, we find that the condition up on which the United States' appeal under 
Article XXIII:1(b) of the GATT 1994 is premised is not satisfied either. Accordingly, we make no 
finding with respect to whether the Panel erred in finding, in paragraph 7.663 of the Panel Reports, 
that Canada's and Mexico's claims under Article XXIII:1(b) were within the Panel's terms of 
reference. 
                                               
965 Appellate Body Report, US – Gambling , para. 271.  
966 Canada's other appellant's submission, para. 182; Mexico's other appellant's submission, para. 199. 
967 United States' appellant's submission, para. 324. 
968 United States' appellant's submission, para. 307. WT/DS384/AB/RW 
 
- CDA-169 - 
 
 6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS384/AB/RW 
6.1.  In the appeal of the Panel Report, United States – Certain Country of Origin Labelling (COOL) 
Requirements – Recourse to Article 21.5 of the DSU by Canada , WT/DS384/RW (Canada Panel 
Report), the Appellate Body makes the findings below. 
6.2.  For the reasons set out in section 5.1 of this Report, regarding the Panel's findings under 
Article 2.1 of the TBT Agreement, the Appellate Body: 
a. with respect to the Panel's finding that the amended COOL measure increases the 
recordkeeping burden entailed by the original COOL measure: 
i. finds that the Panel did not err, in paragraphs 7.87-7.113 of the Canada Panel 
Report, in its analysis of the impact of point-of-production labelling;  
ii. finds that the Panel did not err, in paragraphs 7.114-7.127 of the Canada Panel 
Report, in its analysis of the impact of the elimination of the country order flexibility; 
and  
iii. finds that the Panel did not err, in Section 7.5.4.2.4.4 of the Canada Panel Report, in 
its consideration of the increased record keeping burden entailed by the amended 
COOL measure within its analysis of whether the detrimental impact of that measure on imported livestock stems exclusively from legitimate regulatory distinctions;   
b. with respect to the Panel's findings regarding the potential for label inaccuracy under the 
amended COOL measure: 
i. finds that the Panel did not err, in paragraph 7.269 of the Canada Panel Report, in its 
consideration of the potential for label inaccuracy with respect to Labels B and C as 
prescribed by the amended COOL measure; and 
ii. finds that the Panel did not err, in Section 7.5.4.2.4.4 of the Canada Panel Report, in 
its consideration of the potential for label inaccuracy under the amended COOL 
measure within its analysis of whether the detrimental impact of that measure on 
imported livestock stems exclusively from legitimate regulatory distinctions; 
c. with respect to the Panel's findings regardin g the exemptions prescribed by the amended 
COOL measure: 
i. finds that the Panel did not err, in paragraph 7.203 of the Canada Panel Report, in 
finding that the exemptions prescribed by  the amended COOL measure are relevant 
for the analysis of whether the detrimental impact of that measure on imported 
livestock stems exclusively from legitimate regulatory distinctions; 
ii. finds that the Panel did not err, in paragraphs 7.273-7.276 of the Canada Panel 
Report, by not attributing significance to the fact that the exemptions under the 
amended COOL measure apply equally to meat derived from imported and domestic 
livestock; 
iii. finds that the Panel did not err, in paragraph 7.275 of the Canada Panel Report, in 
considering, with respect to the cost considerations that allegedly justify the 
existence of the exemptions, that cost considerations do not constitute a supervening justification for discriminatory measures; 
iv. finds that the Panel did not err, in paragraph 7.277 of the Canada Panel Report, in 
considering that the exemptions prescrib ed by the amended COOL measure support 
a conclusion that the detrimental impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions; and WT/DS384/AB/RW 
 
- CDA-170 - 
 
 v. finds that the Panel did not err, in paragraph 7.272 of the Canada Panel Report, by 
failing to evaluate the operation of the exemptions prescribed by the amended COOL 
measure in the US market; 
d. with respect to the Panel's assessment of the relevance of Label D for the analysis of 
whether the detrimental impact of the amended COOL measure on imported livestock 
stems exclusively from legitimate regulatory distinctions: 
i. finds that the Panel did not err, in paragraph 7.279 of the Canada Panel Report, in 
finding that the requirements for Label D are not compelling evidence of arbitrary or 
unjustifiable discrimination in violation of Article 2.1 of the TBT Agreement; 
e. with respect to the Panel's assessment of the relevance of Label E for the analysis of 
whether the detrimental impact of the amended COOL measure on imported livestock 
stems exclusively from legitimate regulatory distinctions: 
i. finds that the Panel did not err, in paragraph 7.280 of the Canada Panel Report, in 
finding that the requirements for Label E do not evidence the amended COOL 
measure's violation of Article 2.1 of the TBT Agreement; and 
f. with respect to the Panel's assessment of the relevance of the amended COOL measure's 
prohibition of a trace-back system for the analysis of whether the detrimental impact of 
that measure on imported livestock stems exclusively from legitimate regulatory 
distinctions:   
i. finds that the Panel did not err, in paragraph 7.281 of the Canada Panel Report, in its 
assessment of the relevance of the amended COOL measure's prohibition of a 
trace-back system for the analysis of whether the detrimental impact of that 
measure on imported livestock stems exclusively from legitimate regulatory distinctions.   
6.3.  For the reasons set out in section 5.2 of this Report, regarding the Panel's findings under 
Article 2.2 of the TBT Agreement, the Appellate Body: 
a. with respect to the sequence and order of the Panel's "necessity" analysis: 
i. finds that the Panel did not err, in paragraphs 7.301-7.303 of the Canada Panel 
Report, by failing to articulate correctly the relational component of the analysis 
under Article 2.2; 
ii. finds that the Panel did not err, in paragraphs 7.301-7.303 of the Canada Panel 
Report, by failing to describe how the relevant factors are to be weighed and 
balanced against each other under the "relational" analysis; and  
iii. finds that the Panel did not err, in paragraphs 7.297-7.299 of the Canada Panel 
Report, by failing to clarify that the "comparative" analysis does not necessarily 
prevail over the "relational" analysis; 
b. with respect to the Panel's analysis of the contribution of the amended COOL measure to 
its objective: 
i. finds that the Panel erred, in paragraph 7.356 of the Canada Panel Report, by 
excluding Labels D and E in reaching its conclusion that the amended COOL measure 
makes a "considerable but necessarily partial" contribution to its objective; WT/DS384/AB/RW 
 
- CDA-171 - 
 
 c. with respect to the interpretation and applic ation of the phrase "taking account of the 
risks non-fulfilment would create" in Article 2.2 of the TBT Agreement: 
i. finds that the Panel did not err, in paragraphs 7.488 and 7.501 of the Canada Panel 
Report, in contemplating that an alternative measure providing less, or less accurate, 
origin information to consumers for a significantly wider range of products might 
achieve an "equivalent" degree of contribution as the amended COOL measure;  
ii. finds that the Panel did not err, in paragraph 7.379 of the Canada Panel Report, by 
failing to take into account the relative importance of the values or interests pursued 
by the amended COOL measure in assessing "the risks non-fulfilment would create"; 
iii. finds that the Panel did not err, in paragraph 7.380 of the Canada Panel Report, by 
failing to take into account the design, structure, and architecture of the amended 
COOL measure in assessing "the risks non-fulfilment would create"; 
iv. finds that the Panel erred, in paragraph 7.423 of the Canada Panel Report, in 
concluding that it was unable to ascertain the gravity of the consequences of 
non-fulfilment of the amended COOL measure's objective, and finds that the Panel 
subsequently erred, in paragraphs 7.490 and 7.503 of the Canada Panel Report, in 
finding that Canada failed to make a prima facie  case that the first and second 
proposed alternative measures would make an "equivalent" degree of contribution to 
the measure's objective;  
v. consequently, reverses the Panel's overall conclusion, in paragraph 7.613 of the 
Canada Panel Report, that Canada did not make a prima facie  case that the amended 
COOL measure violates Article 2.2 of the TBT Agreement; and 
vi. finds that there are not sufficient undisputed facts on the record to complete the 
legal analysis of Canada's claims under Article 2.2 of the TBT Agreement in respect 
of the first and second proposed alternative measures; and 
d. with respect to the third and fourth proposed alternative measures: 
i. reverses the Panel's findings, in paragraphs 7.564 and 7.610 of the Canada Panel 
Report, that Canada did not make a prima facie  case that its third and fourth 
proposed alternative measures are reasonably available for purposes of its claims under Article 2.2 of the TBT Agreement. 
6.4.  For the reasons set out in section 5.3 of this Report, regarding the Panel's analysis under 
Article III:4 of the GATT 1994, the Appellate Body: 
a. finds that the Panel did not err by not attributing contextual relevance to Article IX of the 
GATT 1994 in its interpretation of Article III:4 of the GATT 1994; and 
6.5.  For the reasons set out in section 5.4 of this Report, the Appellate Body: 
a. finds that the Panel did not err, in paragraphs 6.73 to 6.75 of the Canada Panel Report, 
in the way it addressed the United States' request, at the interim review stage, relating 
to the availability of Article XX of the GATT 1994 as an exception to Article III:4 of the 
GATT 1994 with respect to the amended COOL measure. 
6.6.  For the reasons set out in section 5.5 of this Report, the Appellate Body: 
a. finds that the condition upon which Canada's appeal under Article XXIII:1(b) of the 
GATT 1994 is premised is not satisfied and, consequently, makes no finding with respect 
to whether the Panel erred by exercising judicial economy with respect to Canada's claim 
under Article XXIII:1(b); and WT /DS384/ AB/RW 
-CDA-172 -
b. finds that the condition upon which the United States' appeal under Article XXIII: 1(b) of 
the GATT 1994 is premised is not satisfied and, consequently, makes no finding with 
respect to whether the Panel erred, in paragraph 7.663 of the Canada Panel Report, in 
finding that Canada's claim under Article XXIII: 1(b) was within the Panel's terms of 
reference. 
6.7. The Appellate Body recommends that the DSB request the United States to bring its 
measures found in this Report, and in the Canada Panel Report as modified by this Report, to be 
inconsistent with the GATT 1994 and the TBT Agreement into conformity with its obligations under 
those Agreements. 
Signed in the original in Geneva this 24th day of April 2015 by: 
Q . --~ RI~ 
Presiding Member WT/DS386/AB/RW 
 
- MEX-173 - 
 
 6  FINDINGS AND CONCLUSIONS IN THE AP PELLATE BODY REPORT WT/DS386/AB/RW 
6.1.  In the appeal of the Panel Report, United States – Certain Country of Origin Labelling (COOL) 
Requirements – Recourse to Article 21.5 of the DSU by Mexico , WT/DS386/RW (Mexico Panel 
Report), the Appellate Body makes the findings below. 
6.2.  For the reasons set out in section 5.1 of this Report, regarding the Panel's findings under 
Article 2.1 of the TBT Agreement, the Appellate Body: 
a. with respect to the Panel's finding that the amended COOL measure increases the 
recordkeeping burden entailed by the original COOL measure: 
i. finds that the Panel did not err, in paragraphs 7.87-7.113 of the Mexico Panel 
Report, in its analysis of the impact of point-of-production labelling;  
ii. finds that the Panel did not err, in paragraphs 7.114-7.127 of the Mexico Panel 
Report, in its analysis of the impact of the elimination of the country order flexibility; 
and  
iii. finds that the Panel did not err, in Section 7.5.4.2.4.4 of the Mexico Panel Report, in 
its consideration of the increased record keeping burden entailed by the amended 
COOL measure within its analysis of whether the detrimental impact of that measure on imported livestock stems exclusively from legitimate regulatory distinctions;   
b. with respect to the Panel's findings regarding the potential for label inaccuracy under the 
amended COOL measure: 
i. finds that the Panel did not err, in paragraph 7.269 of the Mexico Panel Report, in its 
consideration of the potential for label inaccuracy with respect to Labels B and C as 
prescribed by the amended COOL measure; and 
ii. finds that the Panel did not err, in Section 7.5.4.2.4.4 of the Mexico Panel Report, in 
its consideration of the potential for label inaccuracy under the amended COOL 
measure within its analysis of whether the detrimental impact of that measure on 
imported livestock stems exclusively from legitimate regulatory distinctions; 
c. with respect to the Panel's findings regardin g the exemptions prescribed by the amended 
COOL measure: 
i. finds that the Panel did not err, in paragraph 7.203 of the Mexico Panel Report, in 
finding that the exemptions prescribed by  the amended COOL measure are relevant 
for the analysis of whether the detrimental impact of that measure on imported 
livestock stems exclusively from legitimate regulatory distinctions; 
ii. finds that the Panel did not err, in paragraphs 7.273-7.276 of the Mexico Panel 
Report, by not attributing significance to the fact that the exemptions under the 
amended COOL measure apply equally to meat derived from imported and domestic 
livestock; 
iii. finds that the Panel did not err, in paragraph 7.275 of the Mexico Panel Report, in 
considering, with respect to the cost considerations that allegedly justify the 
existence of the exemptions, that cost considerations do not constitute a supervening justification for discriminatory measures; 
iv. finds that the Panel did not err, in paragraph 7.277 of the Mexico Panel Report, in 
considering that the exemptions prescrib ed by the amended COOL measure support 
a conclusion that the detrimental impact of that measure on imported livestock does not stem exclusively from legitimate regulatory distinctions; and WT/DS386/AB/RW 
 
- MEX-174 - 
 
 v. finds that the Panel did not err, in paragraph 7.272 of the Mexico Panel Report, by 
failing to evaluate the operation of the exemptions prescribed by the amended COOL 
measure in the US market; and 
d. with respect to the Panel's assessment of the relevance of Label E for the analysis of 
whether the detrimental impact of the amended COOL measure on imported livestock 
stems exclusively from legitimate regulatory distinctions: 
i. finds that the Panel did not err, in paragraph 7.280 of the Mexico Panel Report, in 
finding that the requirements for Label E do not evidence the amended COOL 
measure's violation of Article 2.1 of the TBT Agreement. 
6.3.  For the reasons set out in section 5.2 of this Report, regarding the Panel's findings under 
Article 2.2 of the TBT Agreement, the Appellate Body: 
a. with respect to the sequence and order of the Panel's "necessity" analysis: 
i. finds that the Panel did not err, in paragraph 7.298 of the Mexico Panel Report, in 
stating that "a 'comparative analysis' would be redundant only in exceptional 
circumstances", and in concluding, in paragraphs 7.301-7.303 and 7.424 of the 
Mexico Panel Report, that such "exception al circumstances" must be demonstrated 
before any "overall" conclusions with respect to Article 2.2 may be drawn from the 
"relational" analysis; 
b. with respect to the Panel's analysis of the contribution of the amended COOL measure to 
its objective: 
i. finds that the Panel erred, in paragraph 7.356 of the Mexico Panel Report, by 
excluding Labels D and E in reaching its conclusion that the amended COOL measure 
makes a "considerable but necessarily partial" contribution to its objective; 
c. with respect to the interpretation and applic ation of the phrase "taking account of the 
risks non-fulfilment would create" in Article 2.2 of the TBT Agreement: 
i. finds that the Panel did not err, in paragraphs 7.488 and 7.501 of the Mexico Panel 
Report, in contemplating that an alternative measure providing less, or less accurate, 
origin information to consumers for a significantly wider range of products might 
achieve an "equivalent" degree of contribution as the amended COOL measure;  
ii. finds that the Panel did not err, in paragraph 7.379 of the Mexico Panel Report, by 
failing to take into account the relative importance of the values or interests pursued 
by the amended COOL measure in assessing "the risks non-fulfilment would create"; 
iii. finds that the Panel did not err, in paragraph 7.380 of the Mexico Panel Report, by 
failing to take into account the design, structure, and architecture of the amended 
COOL measure in assessing "the risks non-fulfilment would create"; 
iv. finds that the Panel erred, in paragraph 7.423 of the Mexico Panel Report, in 
concluding that it was unable to ascertain the gravity of the consequences of 
non-fulfilment of the amended COOL measure's objective, and finds that the Panel 
subsequently erred, in paragraphs 7.490 and 7.503 of the Mexico Panel Report, in 
finding that Mexico failed to make a prima facie  case that the first and second 
proposed alternative measures would make an "equivalent" degree of contribution to 
the measure's objective;  
v. consequently, reverses the Panel's overall conclusion, in paragraph 7.613 of the 
Mexico Panel Report, that Mexico did not make a prima facie  case that the amended 
COOL measure violates Article 2.2 of the TBT Agreement; and WT/DS386/AB/RW 
 
- MEX-175 - 
 
 vi. finds that there are not sufficient undisputed facts on the record to complete the 
legal analysis of Mexico's claims under Article 2.2 of the TBT Agreement in respect of 
the first and second proposed alternative measures; and 
d. with respect to the third and fourth proposed alternative measures: 
i. reverses the Panel's findings, in paragraphs 7.564 and 7.610 of the Mexico Panel 
Report, that Mexico did not make a prima facie  case that its third and fourth 
proposed alternative measures are reasonably available for purposes of its claims 
under Article 2.2 of the TBT Agreement. 
6.4.  For the reasons set out in section 5.3 of this Report, regarding the Panel's analysis under 
Article III:4 of the GATT 1994, the Appellate Body: 
a. finds that the Panel did not err by not attributing contextual relevance to Article IX of the 
GATT 1994 in its interpretation of Article III:4 of the GATT 1994; and 
6.5.  For the reasons set out in section 5.4 of this Report, the Appellate Body: 
a. finds that the Panel did not err, in paragraphs 6.73 to 6.75 of the Mexico Panel Report, 
in the way it addressed the United States' request, at the interim review stage, relating 
to the availability of Article XX of the GATT 1994 as an exception to Article III:4 of the 
GATT 1994 with respect to the amended COOL measure. 
6.6.  For the reasons set out in section 5.5 of this Report, the Appellate Body: 
a. finds that the condition upon which Mexico's appeal under Article XXIII:1(b) of the 
GATT 1994 is premised is not satisfied and, consequently, makes no finding with respect 
to whether the Panel erred by exercising judi cial economy with respect to Mexico's claim 
under Article XXIII:1(b); and 
b. finds that the condition upon which the United States' appeal under Article XXIII:1(b) of 
the GATT 1994 is premised is not satisfied and, consequently, makes no finding with 
respect to whether the Panel erred, in paragraph 7.663 of the Mexico Panel Report, in 
finding that Mexico's claim under Article XXIII:1(b) was within the Panel's terms of reference. 
6.7.  The Appellate Body recommends that the DSB request the United States to bring its 
measures found in this Report, and in the Mexico Panel Report as modified by this Report, to be 
inconsistent with the GATT 1994 and the TBT Agreem ent into conformity with its obligations under 
those Agreements. 
 WT /DS386/ AB/RW 
-MEX-176-
Signed in the original in Geneva this 24th day of April 2015 by: 
1" 
Ricardo Ramirez-Hernandez 
Presiding Member WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 177 - 
 
 ANNEX 1 
   
  
WT/DS384/29  
WT/DS386/28  
 
2 December 2014  
(14-6999)  Page: 1/2  
  Original: English  
 
 
UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CANADA AND MEXICO 
NOTIFICATION OF AN APPEAL  BY THE UNITED STATES 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following notification, dated 28 November 2014, from the Delegation of the United States, is 
being circulated to Members. 
 
_______________ 
  
1. Further to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and pursuant to Rule 20 of the Working Procedures for Appellate 
Review , the United States hereby notifies its decision to appeal to the Appellate Body certain 
issues of law covered in the Reports of the Panels in United States – Certain Country of Origin 
Labelling (COOL) Requirements: Recourse to Articl e 21.5 of the DSU by Canada / Recourse to 
Article 21.5 of the DSU by Mexico  (WT/DS384/RW and WT/DS386/RW) ("Panel Reports") and 
certain legal interpretations developed by the Panels.  
2. The United States seeks review by the Appellate Body of the Panels' findings and 
conclusion that amended U.S. COOL measure is inconsistent with Article 2.1 of the Agreement on 
Technical Barriers to Trade  (the "TBT Agreement") because the amended COOL measure accords 
less favorable treatment to complainants' livestock exports.
1 This conclusion is in error and is 
based on erroneous findings on issues of law and legal interpretations, including: 
(a)  the Panels' finding that the detrimental impact does not stem exclusively from 
legitimate regulatory distinctions beca use the amended COOL measure entails an 
increased recordkeeping burden and increased segregation.2  
(b)  the Panels' finding that the detrimental impact does not stem exclusively from 
legitimate regulatory distinctions because the current labels provided by the 
amended COOL measure have a potential for label inaccuracy.3 
                                               
1 See, e.g. , Panel Reports, paras. 7.284-7.285, 8.3(b) (DS384), 8.3(b) (DS386). 
2 See, e.g. , Panel Reports, paras. 7.134, 7.149-7.150, 7.220-7.221, 7.271-7.272, 7.282.  
3 See, e.g. , Panel Reports, paras. 7.243-7.244, 7.252-7.254, 7.269-7.270, 7.282. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 178 - 
 
 (c)  the Panels' finding that the detrimental impact does not stem exclusively from 
legitimate regulatory distinctions because the amended COOL measure continues to exempt a large proportion of muscle cuts.
4 
3. In the event that Canada or Mexico appeals the ultimate findings of either Panel that the 
amended U.S. COOL measure is not inconsiste nt with Article 2.2 of the TBT Agreement5, the 
United States seeks conditional review of the Panels' legal interpretation of the phrase "the risks non-fulfilment would create."
6 This analysis is based on erroneous findings on issues of law and 
legal interpretations, including: the Panels' interpre tation of what effect a finding with regard to 
"the risks non-fulfilment would create" can have as to whether any particular alternative measure 
makes a contribution to the objective equivalent to the contribution made by the challenged measure.
7  
4. The United States seeks review by the Appellate Body of the Panels' findings and 
conclusion that the amended U.S. COOL measure is inconsistent with Article III:4 of the General 
Agreement on Tariffs and Trade 1994  (the "GATT 1994").8 This conclusion is in error and is based 
on erroneous findings on issues of law and legal interpretations, including that "the amended COOL 
measure accords less favourable treatment within the meaning of Article III:4 of the GATT 1994"9 
and that the amended COOL measure would not be examined under Article XX of the GATT 1994.10 
5. The United States seeks review by the Appellate  Body of the Panels' failure to address the 
aspect of the relationship between Article 2. 1 of the TBT Agreement and Article III:4 of the 
GATT 1994 related to the availability of an ex ception under Article XX of the GATT 1994 and the 
Panels' failure to address the availability of Ar ticle XX as an exception for Article III:4 of the 
GATT 1994 with respect to the amended U.S. COOL measure.11 
6. Finally, in the event that Canada or Mexico appeals the determination by either Panel not 
to make findings or legal conclusions in relation to the non-violation claim by that complainant 
under Article XXIII:1(b) of the GATT 1994, the Un ited States seeks conditional review by the 
Appellate Body of the Panels' findings and conclusion that the non-violation claims under Article XXIII:1(b) of the GATT 1994 were within the Panels' terms of reference.
12 This conclusion is 
in error and is based on erroneous findings on issues of law and legal interpretations, including 
that "reviewing the 'consistency' of a measure taken to comply under Article 21.5 of the DSU 
extends to non-violation claims under Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the DSU." 
_______________ 
 
                                               
4 See, e.g. , Panel Reports, paras. 7.216-7.219, 7.201-7.203, 7.272-7.277, 7.282. 
5 See, e.g. , Panel Reports, paras. 8.3(c) (DS384), 8.3(c) (DS386). 
6 See, e.g. , Panel Reports, paras. 7.374-7.383.  
7 See, e.g. , Panel Reports, paras. 7.481-7.488, 7.501-7.502. 
8 See, e.g. , Panel Reports, paras. 7.625, 7.642, 7.643, 8.4 (DS384), 8.4 (DS386) . 
9 See, e.g. , Panel Reports, paras. 7.642-7.643. 
10 See, e.g. , Panel Reports, paras. 6.70, 6.75. 
11 See, e.g. , Panel Reports, paras. 6.70-6.75. 
12 See, e.g. , Panel Reports, paras. 7.647-7.663. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 179 - 
 
 ANNEX 2  
  
  
WT/DS384/30  
16 December 2014  
(14-7279)  Page: 1/2  
  Original: English  
 
 
UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CANADA  
NOTIFICATION OF AN OTHER APPEAL BY CANADA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following notification, dated 12 December 2 014, from the Delegation of Canada, is being 
circulated to Members. 
 
_______________ 
  
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (DSU) and Rule 23 of the  Working Procedures for Appellate Review , Canada hereby 
notifies its decision to appeal to the Appellate Body certain issues of law covered in the Report of 
the Panel in United States – Certain Country of Origin Labelling (COOL) Requirements – Recourse 
to Article 21.5 of the DSU by Canada  (WT/DS384/RW) (Panel Report) and certain legal 
interpretations developed by the Panel. 
 
Canada seeks review by the Appellate Body of th e Panel's legal conclusion that Canada has not 
made a prima facie  case that the amended COOL measure is more trade-restrictive than necessary 
within the meaning of Article 2.2 of the TBT Agreement.
1 This conclusion is incorrect as a matter of 
law, and is based on erroneous intermediate findings on issues of law and legal interpretation, 
including:  
a. the Panel's exclusions of Labels D and E from the scope of its analysis of the degree of 
contribution to the legitimate objectiv e achieved by the amended COOL measure
2 and its 
subsequent erroneous finding that the amended COOL measure makes a "considerable 
but necessarily partial contribution to its objective"3; 
b. the Panel's articulation and application of an incorrect legal test under Article 2.24 in that 
it failed to articulate and apply a proper relational analysis of the relevant factors and to consider its findings under the relational and comparative analyses together before 
reaching a conclusion on the claim of violation; 
                                               
1 See e.g. Panel Reports, US – COOL (Article 21.5 – Canada and Mexico) , para. 7.613. 
2 See e.g. ibid. para. 7.345. 
3 See e.g. ibid. para. 7.356. 
4 See e.g. ibid. paras. 7.303 and 7.424. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 180 - 
 
 c. the Panel's exclusion of certain relevant factors from the assessment of the "risks 
non-fulfilment would create"5 and its resulting incorrect finding that it was unable to 
ascertain the gravity of the consequences of  not fulfilling the amended COOL measure's 
objective6; and 
d. the Panel's findings that Canada failed to make a prima facie  case that the first and 
second alternative measures would make a contribution to the legitimate objective that is at least equivalent to the contribution made by the amended COOL measure
7, which 
resulted from the Panel's failure to correctly assess the "risks non-fulfilment would 
create". 
In addition, Canada seeks review by the Appellate Body of the Panel's finding under TBT Article 2.2 
that Canada has not sufficiently and adequately identified the third and fourth alternative 
measures for assessing their reasonable availability and for comparing their respective 
trade-restrictiveness and degrees of cont ribution with the amended COOL measure.8 In reaching 
this finding, the Panel erred by imposing on Canada an obligation to describe the alternative 
measures with an excessively high level of precision. In particular, Canada seeks review by the 
Appellate Body of the Panel's finding that, for the purpose of making a prima facie  case that an 
alternative measure is reasonably available, a co mplainant bears the burden of providing a cost 
estimate of the alternative measure or evidence substantiating the likely magnitude of the costs 
that would be associated with the alternative measure.9  
 Canada also requests the Appellate Body to find that the Panel failed to make an objective 
assessment of the matter at issue, including an obje ctive assessment of the facts, as required by 
Article 11 of the DSU, with respect to the above- referenced intermediate finding that the amended 
COOL measure makes a "considerable but necessarily partial contribution to its objective".
10  
 
While Canada does not take issue with the Panel's overall conclusion and most of its analysis under Article 2.1 of the TBT Agreement, Canada seeks review by the Appellate Body of: 
 
a. the Panel's legal reasoning in respect of its legitimate regulatory distinction (LRD) 
analysis under Article 2.1 of the TBT Agreemen t that caused it to exclude Labels D and E 
as well as the amended COOL measure's prohibition of trace-back from the LRD 
analysis
11; and 
b. the Panel's failure to make an objective assessment of the facts, as required by 
Article 11 of the DSU, because its exclusion of Label E from its LRD analysis also lacked 
a basis in the evidence contained in the Panel record.12  
In the event that the Appellate Body finds that th ere is no violation of either Article 2.1 of the 
TBT Agreement or Article III:4 of the GATT 1994, Ca nada also seeks review by the Appellate Body 
of the exercise of judicial economy by the Panel with regard to Canada's non-violation claim under 
Article XXIII:1(b) of the GATT 1994.13  
 
_______________ 
 
 
                                               
5 See e.g. ibid. paras. 7.374-7.383. 
6 See e.g. ibid. paras. 7.423-7.424. 
7 See e.g. ibid. paras. 7.490 and 7.503. 
8 See e.g. ibid. paras. 7.553 and 7.602. 
9 See e.g. ibid. paras. 7.556 and 7.603. 
10 See e.g. ibid. para. 7.356. 
11 See e.g. ibid. paras. 7.279, 7.280, and 7.281. 
12 See e.g. ibid. para. 7.280. 
13 See e.g. Panel Reports, US – COOL (Article 21.5 – Canada and Mexico) , para. 7.716. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 181 - 
 
 ANNEX 3 
  
  
WT/DS386/29  
16 December 2014  
(14-7280)  Page: 1/3  
  Original: English  
 
 
UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO  
NOTIFICATION OF AN OTHER APPEAL BY MEXICO 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following notification, dated 12 December 2 014, from the Delegation of Mexico, is being 
circulated to Members. 
 
_______________ 
  
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (DSU) and Rule 23(1) of the Working Procedures for Appellate Review , 
the United Mexican States (Mexico) hereby notifies its decision to appeal to the Appellate Body 
certain issues of law and certain legal interpretations developed by the Panel in United States – 
Certain Country of Origin Labelling (COOL) Requirements  – Recourse to Article 21.5 of the DSU by 
Mexico  (WT/DS386/RW) (Panel Report), and the Panel's failure to make an objective assessment 
of the matter as required by Article 11 of the DSU. 
 2. Pursuant to Rule 23(2)(c)(ii) of the Working Procedures for Appellate Review , this Notice of 
Other Appeal includes an indicative list of the paragraphs of the Panel Report containing the 
alleged errors, without prejudice to Mexico's ability to refer to other paragraphs of the Panel 
Report in the context of this appeal.  
I. Appeal of the Panel's conclusion that Mexico did not make a prima facie  case that 
the amended COOL measure is more trade restrictive than necessary within the 
meaning of Article 2.2 of the TBT Agreement and the Panel's failure to make an 
objective assessment of the matter before i t  a s  r e q u i r e d  u n d e r  A r t i c l e  1 1  o f  t h e  
DSU 
 3. Mexico seeks review by the Appellate Body of the Panel's findings that Mexico did not make 
a prima facie  case that the amended COOL measure is more trade restrictive than necessary 
within the meaning of Article 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement).
1 The Panel's conclusion is in error and is based on erroneous findings on issues 
of law, related interpretations, and the Panel's failure to make an objective assessment of the 
matter before it as required by Article 11 of the DSU. The Panel erred:  
                                               
1 Panel Reports, US – COOL (Article 21.5) , paras. 7.612-7.613; Panel Report, US – COOL (Article 21.5 – 
Mexico ), para. 8.3(c). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 a. by finding that overall conclusions under Article 2.2 may not be drawn from the 
"relational analysis" in the first step of the "necessity test"2, by improperly applying an 
"exceptional circumstances" requirement3, by failing to complete the "relational 
analysis", and by failing to make a finding as to whether the amended COOL measure is 
more trade-restrictive than necessary at the conclusion of the "relational analysis".4 
b. by failing to properly consider and take into account the design and operation of Label E 
(the ground beef label) in its assessmen t of the amended COOL measure's degree of 
contribution to the fulfilment of the legitimate objective.5 
c. by limiting its assessment of the risks that non-fulfilment of the amended COOL 
measure's objective would create to consumer interest in country of origin information, and the willingness of consumers to pay the costs of obtaining country of origin 
information on product labels.
6 
d. by failing to consider and take into account the relative importance of the interests or 
values furthered by the amended COOL measure and the design, architecture, revealing 
structure, operation and application of the measure in its assessment of the risks that 
non-fulfilment of the measure's objective would create.7 
e. by applying an erroneous approach to its assessment of the gravity of the consequences 
that would arise from non-fulfilment of the amended COOL measure's objective8, by 
failing to make an objective assessment of the matter before it as required by Article 11 of the DSU with respect to the arguments an d evidence put forward by the parties for 
the purpose of assessing the gravity
9, and by failing to make a finding on the gravity of 
the consequences that would arise from non- fulfilment of the amended COOL measure's 
objective.10 
f. by not completing the "comparative analysis" of the amended COOL measure with the 
first and second alternative measures because it was unable to determine the specific 
implications of risks of non-fulfilment of the amended COOL measure's objective11 for 
the purposes of evaluating whether the first and second alternative measures make an 
equivalent degree of contribution, taking into account the risks non-fulfilment would 
create.12  
g. by failing to undertake an assessment of whether the first and second alternative 
measures are reasonably available, less trade-restrictive and provide an equivalent 
contribution to the fulfilment of the amended COOL measure's objective.13 
                                               
2 Panel Reports, US – COOL (Article 21.5) , para. 7.298. 
3 Panel Reports, US – COOL (Article 21.5) , para. 7.298. 
4 Panel Reports, US – COOL (Article 21.5) , paras. 7.424-7.425. 
5 Panel Reports, US – COOL (Article 21.5) , paras. 7.343-7.345, 7.346-7.356 and footnote 785 to 
para. 7.347, citing data in paragraphs 7.258 and 7.262. 
6 Panel Reports, US – COOL (Article 21.5) , paras. 7.375, 7.381, 7.383, and 7.418. In this respect, the 
Panel erred in its interpretation of the Appellate Body's  reasons respecting the asse ssment of the risks that 
non-fulfilment would create under Article 2.2 in  the original proceedings. See Panel Reports, US – COOL 
(Article 21.5) , para. 7.375, citing Appellate Body Report, US – COOL , para. 478. 
7 Panel Reports, US – COOL (Article 21.5) , para. 7.379-7.380. 
8 Panel Reports, US – COOL (Article 21.5) , paras. 7.383, 7.418-7.420, 7.422-7.424. 
9 Panel Reports, US – COOL (Article 21.5) , 7.384-7.414, 7.416, 7.418-7.422. 
10 Panel Reports, US – COOL (Article 21.5) , paras. 7.423-7.424, 7.488, 7.501, and 7.611. 
11 Panel Reports, US – COOL (Article 21.5) , paras. 7.488 and 7.501. 
12 Panel Reports, US – COOL (Article 21.5) , paras. 7.488-7.491 and 7.501-7.503. 
13 Panel Reports, US – COOL (Article 21.5) , paras. 7.488, 7.491, 7.500, and 7.503. This includes the 
Panel's error in interpreting and applying Article 2.2 of  the TBT Agreement by failing to make a finding that 
Mexico's second alternative measure would provide a contribution to the fulfilment of the amended COOL 
measure's objective that would be at least equivalent to that of the amen ded COOL measure, because it would 
provide exactly the same origin information as that required under Label E (the ground beef label) of the amended COOL measure. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 183 - 
 
 h. by requiring Mexico to adduce unnecessarily precise explanations as to how the third and 
fourth alternative measures proposed by Mexico would be implemented in the United States
14 and by failing to make an objective assessment of the matter before it as 
required by Article 11 of the DSU. 
II. Appeal of the Panel's finding that Label E (the ground meat label)  is not relevant to 
the legal analysis under Article 2.1 of the TBT Agreement 
 
4. Mexico seeks review by the Appellate Body of the Panel's erroneous finding that Label E (the 
ground meat label) is not relevant to the lega l analysis under Article 2.1 of the TBT Agreement.15  
 III. Conditional appeal of the Panel's deci sion to exercise judicial economy with 
respect to Mexico's claim of non-viol ation nullification or impairment under 
Article XXIII:1(b) of the GATT 1994 
 
5. In the event that the Appellate Body overturns the Panel's findings that the COOL measure 
is inconsistent with Article 2.1 of the TBT Ag reement and Article III:4 of the GATT 1994, Mexico 
appeals the Panel's decision to exercise judicial economy with respect to Mexico's claim of 
non-violation nullification or impairment under Article XXIII:1(b) of the GATT 1994 and asks the 
Appellate Body to complete the analysis.
16 
 
_______________ 
 
 
                                               
14 Panel Reports, US – COOL (Article 21.5) , paras. 7.564, 7.601-7.602, and 7.608-7.610. See also Panel 
Reports, US – COOL (Article 21.5) , paras. 7.522, 7.525, 7.526, 7.538, 7.542, 7.551-7.553, 7.556-7.557, 
7.559-7.560, 7.562-7.563, 7.599, 7.601, 7.602 and 7.609-7.610. 
15 Panel Reports, US – COOL (Article 21.5) , paras. 7.206-7.207 and 7.280. 
16 Panel Reports, US – COOL (Article 21.5) , paras. 7.716 and 8.4. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 ANNEX 4 
   ORGANISATION MONDIALE  ORGANIZACIÓN MUNDIAL 
 DU COMMERCE  DEL COMERCIO 
 
WORLD TRADE ORGANIZATION 
 
APPELLATE BODY 
United States – Certain Country of Origin Labelling (COOL) Requirements 
 
Recourse to Article 21.5 of the DSU by Canada and Mexico  
 
AB-2014-10 
Procedural Ruling 
  
1  BACKGROUND 
 1.1.  On Friday, 28 November 2014, the United States notified the Dispute Settlement Body (DSB) of its intention to appeal certain issues of law covered in the Panel Reports in  United States – 
Certain Country of Origin Labelling (COOL) Requirem ents – Recourse to Article 21.5 of the DSU by 
Canada and Mexico (WT/DS384/RW, WT/DS386/RW) and filed a Notice of Appeal with the 
Appellate Body Secretariat. The notification was circulated and the Notice of Appeal filed in 
advance of a special meeting of the DSB scheduled for the same day to consider these Panel 
Reports. In its Notice of Appeal, the United States challenges the Panel's findings regarding Article 2.1 of the TBT Agreement and Article III:4 of  the GATT 1994. The United States also alleges 
that the Panel failed to examine the measure at issue under Article XX of the GATT 1994 and 
raises conditional challenges in respect of Arti cle 2.2 of the TBT Agreement and the Panel's terms 
of reference.  
1.2.  At the request of Canada and Mexico, the special meeting of the DSB proceeded as scheduled 
to consider these Panel Reports, notwithstandin g the filing of a Notice of Appeal by the 
United States earlier in the day. This meeting was subsequently suspended in order to facilitate informal consultations about a joint request to the Appellate Body by Canada, Mexico, and the 
United States (the "participants") to modify the time-periods for filing written submissions in this 
appeal. 
1.3.  At 3:58 p.m. on the same day, the participants filed a joint request with the Division hearing 
this appeal to modify certain time-periods for filing written submissions pursuant to Rule 16(2) of 
the Working Procedures for Appellate Review (Working Procedures). More specifically, the participants requested the Division to fix the deadlines for filing the United States' appellant's submission to 8 December 2014; the other appella nts' submissions to 15 December 2014; and the 
appellees' submissions to 12 January 2015. The part icipants jointly submitted that "exceptional 
circumstances" present in this dispute mean that strict adherence to the regular deadlines would result in a "manifest unfairness" within the mean ing of Rule 16(2) of the Working Procedures. In 
particular, the participants submitted that the time-period set out in Rule 21 would not afford the 
United States as appellant sufficient time to present its arguments. This would impede the development of arguments in subsequent submissions, thereby impeding the orderly conduct of 
the appeal. In support of their request, the participants pointed to serious resource constraints due 
to concurrent work on other pending proceedings, as well as the constraints imposed by the contemporaneous holiday period, the multiple complex issues at stake in this dispute, and the present workload of the Appellate Body. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 185 - 
 
 1.4.  By letter sent at 4:51 p.m. on the same day, the Presiding Member of the Division invited the 
third participants to provide their comments on th e joint request of the participants by 3 p.m. on 
1 December 2014. In order to offer the third participants an opportunity to comment on the joint request of the participants, and to ensure orderly procedure in the conduct of this appeal in 
accordance with Rule 16(1) of the Working Proc edures, the Division suspended the deadlines for 
the filing of any Notice of Other Appeal, and of the written submissions in this appeal, until the 
issuance of this Ruling. Brazil, the European Un ion, India, and Japan submitted comments. All of 
them considered that it is within the discretion of the Appellate Body to modify deadlines for filing 
written submissions, and no third participant expressed any objections to the extension of 
deadlines in the present case. Brazil expressed no view as to whether the request meets the conditions set out in Rule 16(2) of the Working Procedure, whereas the European Union and Japan 
submitted that the factors in this case may give rise to exceptional circumstances, without such 
factors necessarily setting a precedent for Rule 16(2) or being categorically accepted as constituting "exceptional circumstances" in future cases. India submitted that resource constraints, 
especially when experienced by developing countri es, could constitute "exceptional circumstances" 
for modifying time-periods, and that what is considered to constitute "exceptional circumstances" in this case could be relevant factors in future appeals. Japan expects that, if the request of the 
participants is granted, the time-period for the filing of third participants' submissions would be 
extended to 15 January 2015. 
2  THE JOINT REQUEST FROM CANADA, MEXICO, AND THE UNITED STATES TO EXTEND 
TIME-PERIODS FOR FILING SUBMISSIONS 
 
2.1.  Pursuant to Article 17.9 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the Appellate Body has the authority to draw up working 
procedures for appellate proceedings in consultati on with the Chair of the DSB and the Director-
General. The Working Procedures, adopted pursuant to this mandate, contain Rule 26(1), which provides that, "after the commencement of an appeal, the division shall draw up an appropriate 
working schedule for that appeal in accordance with the time-periods stipulated in these Rules". In 
drawing up an appropriate working schedule, Rule  16(2) permits us to consider requests to 
derogate from the time-periods stipulated in the Working Procedures.  
2.2.  The request before us would require derogation from: Rule 21(1), which requires an 
appellant's submission to be filed on the same day as  the date of the filing of the Notice of Appeal; 
Rule 22(1), which requires the appellees' submissions to be filed within 18 days after the date of the filing of the Notice of Appeal; and Rule 23(3) , which requires the other appellants' submissions 
to be filed within 5 days after the filing of the Notice of Appeal. We also note that, in practical 
terms, the request implicates a derogation from Rule 18 of the Working Procedures, which provides that "[n]o document is considered filed with the Appellate Body unless the document is 
received by the Secretariat within the time-perio d set out for filing in accordance with these 
Rules." Under the terms of Rule 16(2), we may consider requests to derogate from these provisions "[i]n exceptional circumstances, where strict adherence to a time-period set out in these Rules would result in a manifest unfairness". Rule 16(2) of the Working Procedures provides: 
In exceptional circumstances, where strict adherence to a time-period set out in these 
Rules would result in a manifest unfairness, a party to the dispute, a participant, a third party or a third participant may reques t that a division modify a time-period set 
out in these Rules for the filing of documents or the date set out in the working 
schedule for the oral hearing. Where such a request is granted by a division, any 
modification of time shall be notified to the parties to the dispute, participants, third 
parties and third participants in a revised working schedule.  
2.3.  In assessing the joint request of the participants, we are cognisant that the procedural rules 
of WTO dispute settlement, including the Working Procedures, are designed to promote the fair, 
prompt, and effective resolution of trade disputes.
1 As the Appellate Body has stated, the Working 
Procedures "have been drawn up pursuant to the DSU and as a means of ensuring that the dispute 
settlement mechanism achieves the aim of securing a positive solution to a dispute".2 
                                               
1 Appellate Body Report, US – FSC,  para. 166. 
2 Appellate Body Report, EC – Sardines,  para. 139. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 186 - 
 
 2.4.  We note, in general terms, that compliance with time-periods in WTO dispute settlement is 
an obligation for participants and of systemic interest to all WTO Members. This is reflected clearly in the DSU, which provides that "[t]he prompt  settlement of situations in which a Member 
considers that any benefits accruing to it … are being impaired … is essential to the effective 
functioning of the WTO".
3 The concern to ensure the prompt settlement of disputes through the 
fixing of time-periods is evident throughout the DSU, from provisions on the broader timeframes 
for the settlement of disputes4 to specific time-periods set out for particular stages of 
proceedings.5 The time-periods set out in Rules 21(1), 22(1), and 23(3), from which the 
participants' request would require derogation, are provisions aimed at facilitating the prompt settlement of disputes. Rule 16(2) of the Working Procedures subsists within this broader framework. In particular, we view the use of terms such as "exceptional circumstances", "strict 
adherence", and "manifest unfairness" in Rule 16(2) as indicative of the systemic interest of all 
Members in maintaining the integrity of the time-periods set out in WTO dispute settlement. In our view, any derogation from those time-periods pursua nt to Rule 16(2) must be clearly justified in 
the specific circumstances of a given case. 
2.5.  We observe that the WTO dispute settlement sy stem is currently experiencing a high level of 
activity. We recognise that this high level of di spute settlement activity is onerous on those WTO 
Members actively engaged in multiple, parallel proceedings. We note further that the capacity for 
Members involved in multiple, parallel proceedings to manage resource constraints could at times be limited by the fact that dispute settlement pr oceedings are initiated, and timeframes in one 
proceeding are set, independently from other proceedings. As a result, Members engaged in 
multiple, parallel proceedings can experience peak  demands on their capacity to resource their 
dispute settlement activities, especially where filing dates or hearing dates in multiple proceedings occur contemporaneously or in close sequence. In such situations, a Member's ability to engage 
effectively in disputes may be burdened to such a point where its ability to properly exercise its 
rights under the DSU may be impaired. We would expect, however, that Members engaged in multiple, parallel proceedings make adequate re sources available to engage in their dispute 
settlement activities. In this regard, we also recognize that the ability of a Member to make 
available such resources may depend on its capacities and the frequency with which it participates in WTO dispute settlement.  
2.6.  In addition, we consider that other extraneous factors, such as the year-end closure of 
government offices, may be relevant to an assessment under Rule 16(2) in a given case. For 
instance, the year-end closure of government offices could restrict the ability of personnel to make sufficient preparations for a submission or hearing. 
2.7.  At the same time, we are cognisant that modifications to the time-periods in one proceeding 
could have broader implications, especially in th e current context of increased dispute settlement 
activity. First, modifications could present organizational implications for the Appellate Body. This 
may especially be the case where several appellate proceedings are conducted in parallel, with 
Appellate Body Members serving concurrently on multiple Divisions. Second, and relatedly, modifications of the time-periods in one appellate proceeding may require consequential changes to the time-periods and conduct of other parallel or subsequent proceedings, and thus may affect 
the rights and legitimate expectations of other WTO Members to have their cases heard and 
completed within the time-periods set out in the DSU. With the foregoing considerations in mind, we turn to the particular circumstances of the participants in the present dispute. 
2.8.  We note that the United States is currently a participant in three parallel appeals, as well as 
in a number of panel proceedings, some of which could be appealed shortly. We also take note of the participation of Canada and Mexico in other concurrent proceedings. As we have considered, 
such a degree of involvement in multiple, parallel proceedings can lead to acute resource 
constraints at particular junctures. Additionally, any changes to the time-periods for one participant's filing of submissions would likely require modifications to those of other participants. We also take note of the participants' concerns regarding the concurrence of certain time-periods 
for filing written submissions in this dispute with the year-end closure of government offices.  
                                               
3 Article 3.3 of the DSU. (emphasis added) 
4 See e.g. Article 20 of the DSU. 
5 See e.g. Articles 4.7, 16.4, and 17.5 of the DSU. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 187 - 
 
 2.9.  Another element to be considered is that the request before us is made jointly by the 
participants. It stands in contrast to other instances where requests to modify time-periods have been unilateral
6 or were contested.7 While the agreement of all participants is neither necessary 
nor sufficient to the grant of a request under Rule 16(2), it does suggest that the grant of such a 
request would be unlikely to prejudice the due process rights of any of the participants.  
2.10.  A further relevant consideration is that the third participants have not raised any objection 
to the participants' request. We thus do not consider that the grant of an extension to the filing 
dates would prejudice the due process rights of third participants.  
2.11.  We are, however, cognisant that the United States' initiation of its appeal has implications 
for the participation of third participants in this dispute. In particular, pursuant to the time-period specified in Rule 24(1) of the Working Procedures, third participants must file written submissions 
within 21 days of the United States' filing of its Notice of Appeal. Within that period, third 
participants must review the appellant's, other appellants', and appellees' submissions and prepare their own submissions in response to the Pane l Reports and these submissions. We therefore 
consider, in the circumstances of this case, and taking account of the impact of the extensions for 
the participants, that this 21-day period may be insufficient to allow the third participants a meaningful opportunity to review the appellees' su bmissions and to finalize their own submissions. 
2.12.  Having considered all of the particular circ umstances of the present case and in the light of 
the above considerations as a whole, we consider that in the exceptional circumstances of this case, "strict adherence" to the regular time-periods for filing submissions set out in Rules 21, 22, 23, and 24 would result in "manifest unfairness". At the same time, we are guided by the Working 
Procedures to limit modifications to the time-periods set out in these Rules to the minimum extent 
necessary in this case. Accordingly, we have decided to modify, to the extent appropriate, in the particular circumstances of this case, the time-periods for filing written submissions by the 
participants and third participants as follows: 
Modified Dates for the Submission of Documents 
 
P r o c e s s      R u l e      D a t e  
 
Appellant's submission Rules 16 and 21(1)  5 December 2014  
Notice(s) of Other Appeal Rules 16 and 23(1)  12 December 2014 
 Other appellants' submissions Rules 16 and 23(3)  12 December 2014 
 
Appellees' submissions Rules 16, 22, and 23(4)  9 January 2015  
Third participants' submissions Rules 16 and 24(1)  12 January 2015 
 Third participants' notifications Rules 16 and 24(2)  12 January 2015  
Signed in Geneva this 2nd day of December 2014 by: 
 
__________ 
Ricardo Ramírez-Hernández 
Presiding Member 
 
____________________ 
Seung Wha Chang 
Member  
____________________ 
Peter Van den Bossche 
Member 
_______________ 
 
                                               
6 See e.g. Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , paras. 17-18. 
7 See e.g. Appellate Body Reports, China – Rare Earths , para. 1.31. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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 ANNEX 5 
   ORGANISATION MONDIALE  ORGANIZACIÓN MUNDIAL 
 DU COMMERCE  DEL COMERCIO 
 
WORLD TRADE ORGANIZATION 
 
APPELLATE BODY 
United States – Certain Country of Origin Labelling (COOL) Requirements 
 
Recourse to Article 21.5 of the DSU by Canada and Mexico  
 
AB-2014-10 
Procedural Ruling 
  
1.1.  On 11 December 2014, the Appellate Body Division hearing the above appeal received a 
letter from Australia requesting that the deadline for the filing of the third participants' submissions be extended from 12 January to 15 January 2015. We understand that Australia's 
letter was copied to the participants and third participants in this appeal. 
1.2.  Australia notes that, in its Procedural Ruling of 2 December 2014, the Division set the 
deadline for the filing of the appellees' submissi ons to Friday, 9 January, and the deadline for the 
filing of the third participants' submissions to  Monday, 12 January 2015. Australia acknowledges 
that a time-period of three days between the filing  of the appellees' submissions and the filing of 
the third participants' submissions is in line with  the standard time-periods set out in the Working 
Procedures for Appellate Review (Working Proc edures); however, Australia notes that, in the 
particular circumstances of this case, this time-period runs over a weekend, providing third 
participants with only one working day to incorporate reactions to the appellees' submissions into their third participants' submissions. Australia further explains that the challenges it faces in preparing its submission are exacerbated by the decreased staffing capacity during the peak 
summer holiday period in Australia. 
1.3.  By letter dated 12 December 2014, the Divisi on invited the participants and the other third 
participants to comment on Australia's reques t. Brazil, Colombia and New Zealand supported 
Australia's request that the deadline for the filing of the third participants' submissions be 
extended from 12 January to 15 January 2015. Canada and the United States expressed no objections to an extension of the deadline. Mexico submitted that it had no objection if the 
timetable for the subsequent stages of the appellate proceeding is not affected and if the extension 
is granted to all third participants. Japan stated that it had no specific comments on Australia's request. 
1.4.  We recall that, pursuant to a joint request by the participants to modify the time-periods for 
filing written submissions, we issued a Procedural  Ruling on 2 December 2014, extending the time-
periods for the filing of the United States' appellant's submission to 5 December, the Notices of Other Appeal and the other appellants' submissions to 12 December, and the appellees' 
submissions to 9 January. In its comments on the joint request of the participants' request, Japan 
had stated that it expected that the filing da tes for third participants' submissions would be 
adapted to correspond to standard time-periods, if the joint request of the participants was 
granted. However, no request for an extension of th e time-period for the filing of third participants' 
submission had been made. Accordingly, the deadline was set for 12 January 2014, that is, three days after the modified date for filing appellees' submissions, in keeping with standard time-periods set out in the Working Procedures.  WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 189 - 
 
 1.5.  Australia's present request would require a modification of the time-periods set out in our 
Procedural Ruling of 2 December 2014, which provided derogation from, inter alia , Rule 24 of the 
Working Procedures. This rule stipulates that any third participant's submission shall be filed within 21 days after the date of the filing of the Noti ce of Appeal. Pursuant to Rule 16(2), we may 
consider requests to derogate from this provision "[i]n exceptional circumstances, where strict 
adherence to a time-period set out in these Rules would result in a manifest unfairness".  
1.6.  In our Procedural Ruling of 2 December 2014, we noted that the procedural rules of WTO 
dispute settlement, including the Working Procedur es, are designed to promote the fair, prompt, 
and effective resolution of trade disputes
1, and that the Working Procedures "have been drawn up 
pursuant to the DSU and as a means of ensuring that the dispute settlement mechanism achieves the aim of securing a positive solution to a dispute".
2 We also recall our observation that 
compliance with time-periods in WTO dispute settlement is an obligation for participants and of 
systemic interest to all WTO Members, and that any derogation from those time-periods pursuant to Rule 16(2) must be clearly justified in the specific circumstances of a given case. 
1.7.  We note that Australia's request is based partly on similar reasons as the participants' earlier 
joint request for extending the time-periods for the filing of written submissions in this appeal, which we considered to be relevant factors in our assessment of exceptional circumstances 
pursuant to Rule 16(2). We note in this regard Australia's reference to decreased staffing capacity 
during the peak summer holiday period in Austra lia and other Southern hemisphere countries.  
1.8.  Australia also submits that the time-period for the filing of third participants' submissions 
ends on a Monday, and that this provides thir d participants with only one working day to 
incorporate reactions to the appellees' submissions filed on a Friday into their third participants' 
submissions. We do not consider this in itself to be an exceptional situation. On the contrary, this situation arises under the time-periods set out in the Working Procedures whenever the time-
period for the filing of third participants' submissions ends on a Monday. At the same time, 
because this coincides with decreased staffing capacity during the year-end closure and peak summer holiday period in Southern hemisphere countries, we consider it relevant to the 
assessment under Rule 16(2) in the specific circumstances of the present case. 
1.9.  As a further relevant consideration, we note that the participants and other third participants 
have not raised any objection to this request. Accordingly, we consider that granting an extension to the deadline for the filing of the third part icipants' submissions would not prejudice the due 
process rights of the participants. However, in order to ensure due process also with regard to the 
other third participants, we must extend any extension granted to Australia also to the other third participants.  
1.10.  In the light of all of the above elements, we consider that, in the exceptional circumstances 
of this case, "strict adherence" to the regular time-periods for the filing of the third participants' submissions pursuant to Rule 24 of the Working Procedures would result in "manifest unfairness". 
Accordingly, we have decided to extend the de adline for the filing of the third participants' 
notifications and third participants ' submissions to 15 January 2015. 
Signed in Geneva this 17th day of December 2014 by: 
 
__________ 
Ricardo Ramírez-Hernández 
Presiding Member 
____________________ 
Seung Wha Chang 
Member ____________________ 
Peter Van den Bossche 
Member 
_______________ 
                                               
1 Appellate Body Report, United States – Tax Treatment fo r "Foreign Sales Corporations" , 
WT/DS108/AB/R, para. 166. 
2 Appellate Body Report, European Communities – Trade Description of Sardines , WT/DS231/AB/R, 
para. 139. WT/DS384/AB/RW • WT/DS386/AB/RW 
 
- 190 - 
 
  ANNEX 6 
   ORGANISATION MONDIALE  ORGANIZACIÓN MUNDIAL 
 DU COMMERCE  DEL COMERCIO 
 
WORLD TRADE ORGANIZATION 
 
APPELLATE BODY 
United States – Certain Country of Origin Labelling (COOL) Requirements 
 
Recourse to Article 21.5 of the DSU by Canada and Mexico  
 
AB-2014-10 
Procedural Ruling 
  
1. On 18 December 2014, we received a joint letter from Canada, Mexico, and the 
United States in the above proceedings. In that letter, Canada and the United States request that the oral hearing in this appeal be opened to public observation. Specifically, Canada and the United States request that we authorize public  observation of the statements and answers to 
questions of the participants, as well as those of third participants who agree to make their 
statements and responses to questions public. Canada and the United States make this request on the understanding that any information that had been designated as confidential in the documents 
filed by any participant in the panel proceedings would be adequately protected in the course of 
the oral hearing. They propose that public observ ation be permitted via simultaneous closed-circuit 
television broadcasting with the option for the transmission to be turned off when issues involving 
confidential information are discussed, or if a third participant indicates that it wishes to keep its 
oral presentation confidential.  
2. For its part, Mexico does not object to allowing observation by the public of the oral hearing. 
Mexico requests that the Division reflect in its report that Mexico's position is specific to these 
proceedings, without prejudice to its systemic views on the matter. 
3. On 19 December 2014, we invited any third participant that wished to comment on this 
request to do so by 12 noon on 6 January 2015. By that deadline, only Japan had responded, 
indicating that it has no objection to this request.
1  
4. We recall that requests to allow public observation of the oral hearing have been made, and 
have been authorized, in 11 previous appeals.2 In its rulings, the Appellate Body has held that it 
has the power to authorize such requests by the participants, provided that this does not affect the 
confidentiality in the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process. We concur  with the reasons previously expressed by the 
Appellate Body, and its interpretation of Article 17. 10 of the DSU, in this regard, and consider that 
it applies equally in circumstances such as those prevailing in these appellate proceedings. 
                                               
1 In addition, Brazil and Australia re sponded in the afternoon of 6 January that they had no objection to 
this request. 
2 The first time the Appellate Body authorized, at the request of the participants, public observation of 
the oral hearing was in 2008 in United States / Canada – Continued Su spension of Obligations in the EC – 
Hormones Dispute  (WT/DS320/AB/R /  WT/DS321/AB/R); most recently the Appellate Body authorized public 
observation of the oral hearing in European Communities – Measures Prohibiting the Importation and Marketing 
of Seal Products  (WT/DS400/AB/R / WT/DS401/AB/R). WT/DS384/AB/RW • WT/DS386/AB/RW 
 
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  5. In this appeal, the participants request that  the Appellate Body allow observation by the 
public of the oral hearing by means of simultaneous closed-circuit television broadcasting, with the option for the transmission to be turned off when issues involving confidential information are discussed, or if a third participant indicates that it wishes to keep its oral presentation confidential. 
In our view, these modalities would operate to prot ect confidential information in the context of a 
hearing that is open to public observation, and would not have an adverse impact on the integrity of the adjudicative function perf ormed by the Appellate Body. We al so consider that, during public 
observation by means of simultaneous closed-circuit television broadcasting in previous appeals, 
the confidentiality of information designated as such  and the rights of those third participants that 
did not wish to have their oral statements made subject to public observation have been fully 
protected. 
6. We therefore authorize public observation of the oral hearing in this appeal on the terms set 
out below. Accordingly, pursuant to Rule 16(1) of the Working Procedures for Appellate Review, we 
adopt the following additional procedures fo r the purpose of these appellate proceedings: 
a. The oral hearing will be open to public  observation by means of simultaneous 
closed-circuit television broadcasting, shown in a separate room to which duly registered delegates of WTO Members and members of the general public will have access.  
b. Oral statements and responses to questions by the third participants that have indicated 
their wish to maintain the confidentiality of th eir submissions, as well as – at the request 
of any participant – any discussion of information that the participants designated as confidential in documents submitted to the Panel, will not be subject to public observation. 
c. Any request by a third participant wishing to maintain the confidentiality of its oral 
statements and responses to questions shou ld be received by the Appellate Body 
Secretariat no later than 5 p.m. Geneva time on Monday, 9 February 2015. 
d. An appropriate number of seats will be reserved in the separate room where the closed-
circuit television broadcast will be shown for delegates of WTO Members that are not 
participants or third participants in these proceedings. WTO delegates wishing to observe the oral hearing are requested to register in advance with the Appellate Body Secretariat. 
e. Notice of the oral hearing will be provided  to the general public on the WTO website. 
Members of the general public wishing to observe the oral hearing will be required to 
register in advance with the Appellate Body Secretariat, in accordance with the 
instructions set out in the WTO website notice. 
Signed in Geneva this 7th day of January 2015 by: 
 
______________________ 
Ricardo Ramírez-Hernández 
Presiding Member 
 
______________________ 
Seung Wha Chang 
Member  
______________________ 
Peter Van den Bossche 
Member 
 
__________