WT/DS384/RW  
WT/DS386/RW  
 
20 October 2014  
(14-5927)  Page: 1/206  
  Original: English  
 
 UNITED STATES – CERTAIN COUNTRY OF 
ORIGIN LABELLING (COOL) REQUIREMENTS 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CANADA AND MEXICO 
REPORTS OF THE PANEL 
 
 
 
   
 
  
 
  
 
   
 
  
 
  
 
   
 
  
 
  
Note by the Secretariat: 
 
These Panel Reports are in the form of a single document constituting two separate Panel Reports: WT/DS384/RW and WT/DS386/RW. The cover page, preliminary pages, sections 1 through 7, and 
page 204 of section 8, are common to the two Repo rts. The page header throughout the document 
bears the two document symbols WT/DS384/RW and WT/DS386/RW, with the following exceptions: section 8 on page CAN-205, which bears the document symbol for and contains the 
Panel's conclusions and recommendations in the Panel Report WT/DS384/RW; and section 8 on 
page MEX-206, which bears the document symbol for and contains the Panel's conclusions and recommendations in the Panel Report WT/DS386/RW . The annexes, which are a part of the Panel 
Reports, are circulated in a separate document (WT/DS384/RW/Add.1 and WT/DS386/RW/Add.1). WT/DS384/RW • WT/DS386/RW 
 
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  TABLE OF CONTENTS 
 
1   INTROD UCTION  ........................................................................................................ 18  
1.1   Complaints by Canada and Mexico .............................................................................. 18 
1.2   Panel establishm ent and comp osition .......................................................................... 18 
1.3   Panel proceedings ..................................................................................................... 18 
1.3.1   Genera l ............................................................................................................... . 18 
1.3.2   Procedures for an open substantive meeting .............................................................. 19 
1.3.3   Procedures to protect Business Confidential Information (BCI) ...................................... 19 
1.3.4   Procedures and Re ports for DS3 84 and DS386 ........................................................... 19 
1.3.5   Request for enhanc ed third-party rights .................................................................... 19 
2   FACTUAL ASPECTS ..................................................................................................... 20  
2.1   Measur e at issue ...................................................................................................... 20 
2.2   Products  at issue ...................................................................................................... 20 
3   PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIONS ................................ 20  
4   ARGUMENTS OF  THE PARTIES ................................................................................... 21  
5   ARGUMENTS OF TH E THIRD PA RTIES ........................................................................ 21  
6   INTERIM REVIEW ...................................................................................................... 21  
7   FIND INGS ................................................................................................................. 33 
7.1   Claims .................................................................................................................. .. 33 
7.2   Order of  analysis ...................................................................................................... 33 
7.3   The amende d COOL me asure ..................................................................................... 34 
7.3.1   Amended COOL Labels ........................................................................................... 35 
7.3.1.1   Definition of origin ............................................................................................... 35 
7.3.1.2   Information on labels ........................................................................................... 36 
7.3.1.3   Methods of providing origin information .................................................................. 39 
7.3.2   Coverage of the amended COOL measure .................................................................. 39 
7.3.2.1   Products at issue ................................................................................................. 39 
7.3.2.2   Exemptions ........................................................................................................ 40 
7.3.3   Flexibilities ............................................................................................................ 41 
7.3.3.1   Commingling flexibility removed ............................................................................ 41 
7.3.3.2   Country orde r flexibility  removed .......................................................................... 42 
7.3.3.3   Amended multiple countries of raising flexibility ....................................................... 43 
7.3.4   Label variations in light of the flexibilities .................................................................. 44 
7.3.5   Unchanged recordkeep ing and verifica tion ru les ......................................................... 46 
7.4   Scope of the compliance dispute ................................................................................. 46 
7.5   Article 2.1 of the TBT Agreement ................................................................................ 47 
7.5.1   Legal test ............................................................................................................ . 47 
7.5.2   Technica l regulation ............................................................................................... 47 
7.5.3   Likeness .............................................................................................................. . 49 WT/DS384/RW • WT/DS386/RW 
 
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  7.5.4   Less favourable treatment ....................................................................................... 49 
7.5.4.1   Detrimental impact .............................................................................................. 49 
7.5.4.2   Legitimate re gulatory dist inctio ns .......................................................................... 87 
7.5.4.3   Conclusion on less favourable treatment ............................................................... 108  
7.5.5   Conclusion on Articl e 2.1 of the TBT Agreement ....................................................... 108  
7.6   Article 2.2 of the TBT Agreement .............................................................................. 108  
7.6.1   Legal test ........................................................................................................... 108 
7.6.1.1   Main  factor s ..................................................................................................... 10 8 
7.6.1.2   Whether Article 2.2 entails the two-step approach advanced by Mexico ..................... 109  
7.6.1.3   Relative importance of interests or values furthered by the measure as an 
additional factor ............................................................................................................ 112 
7.6.2   The amended COOL measure's degree of contribution to a legitimate objective ............. 114  
7.6.2.1   The objective of the amended COOL  measure ....................................................... 114  
7.6.2.2   Legitima te objective .......................................................................................... 120  
7.6.2.3   Degree of  contribution ....................................................................................... 120  
7.6.3   The amended COOL meas ure's trade-rest rictiveness ................................................. 125  
7.6.4   Risks of non-fulfilment of th e amended COOL meas ure's objective .............................. 128  
7.6.4.1   Legal test an d relevant factor s ............................................................................ 129  
7.6.4.2   Consumer interest ............................................................................................. 131  
7.6.4.3   Consumers' willingness to  pay ............................................................................ 135  
7.6.4.4   Conclusions on risks of non-fulfilment of the amended COOL measure's 
objective ..................................................................................................................... . 136 
7.6.5   Comparat ive analysis ........................................................................................... 138  
7.6.5.1   Preliminary issues ............................................................................................. 139  
7.6.5.2   First alte rnative me asure ................................................................................... 147  
7.6.5.3   Second al ternative me asure ............................................................................... 152  
7.6.5.4   Third alte rnative me asure .................................................................................. 155  
7.6.5.5   Fourth alternative measure ................................................................................. 172  
7.6.6   Conclusion on Articl e 2.2 of the TBT Agreement ....................................................... 181  
7.7   Article III:4 of the GATT 1994 .................................................................................. 182  
7.7.1   Legal test ........................................................................................................... 182 
7.7.2   Judicial economy ................................................................................................. 184  
7.7.3   Likeness ............................................................................................................. 184 
7.7.4   Law, regulation, or requirement affe cting the internal sale, offering for sale, 
purchase, transportation, distribution, or use of the products at issue .................................... 185  
7.7.5   Less favourable treatment ..................................................................................... 186  
7.7.6   Conclusion on Arti cle III:4 of the GATT 1994  ........................................................... 187  
7.8   Article XXIII:1(b)  of the GA TT 1994  .......................................................................... 187  
7.8.1   Jurisdiction of Article 21.5 compliance  panels concerning non-violation claims .............. 188  
7.8.2   Judicial economy ................................................................................................. 191  
7.8.3   Legal test ........................................................................................................... 193 WT/DS384/RW • WT/DS386/RW 
 
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  7.8.4   Application of a measure ....................................................................................... 193  
7.8.5   Benefi t accruing .................................................................................................. 194  
7.8.5.1   Definition of  "benefit a ccruing " ............................................................................ 194  
7.8.5.2   Reasonable anticipation of the measure ................................................................ 197  
7.8.6   Nullification or im pairment and causation ................................................................ 202  
7.8.7   Conclusion on Arti cle XXIII:1(b) of the GATT 1994 .................................................... 203  
8   CONCLUSIONS AND RECOMMENDATIONS ............................................................... 204  
8.1   Complaint by Canada (DS384): Conclusions and recommendations ......................... CAN-205  
8.2   Complaint by Mexico (DS386 ): Conclusions and recommendations.......................... MEX-206 WT/DS384/RW • WT/DS386/RW 
 
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  LIST OF ANNEXES 
 
ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures of the Panel (DS384) as revised on 21 January 2014 A-2 
Annex A-2 Working Procedures of the Panel (DS386) as revised on 21 January 2014 A-6 
Annex A-3 Procedures for an open substantive meeting of the Panel (DS384) as revised on 
21 January 2014 A-10 
Annex A-4 Procedures for an open substantive meet ing of the Panel (DS386) as revised on 
21 January 2014 A-11 
Annex A-5 Procedures of the Panel concerning business confidential information (DS384) A-12 
Annex A-6 Procedures of the Panel concerning business confidential information (DS386) A-13 
ANNEX B 
ARGUMENTS OF THE PARTIES 
Contents Page 
Annex B-1 Integrated executive summary of the arguments of Canada B-2 
Annex B-2 Integrated executive summary of the arguments of Mexico B-14 
Annex B-3 Integrated executive summary of the arguments of the United States B-27 
ANNEX C 
ARGUMENTS OF THE THIRD PARTIES 
Contents Page 
Annex C-1 Integrated executive summary of the arguments of Brazil C-2 
Annex C-2 Integrated executive summary of the arguments of China C-4 
Annex C-3 Integrated executive summary  of the arguments of Colombia C-7 
Annex C-4 Integrated executive summary of the arguments of the European Union C-10 
Annex C-5 Integrated executive summa ry of the arguments of India C-15 
Annex C-6 Integrated executive summary of the arguments of Japan C-18 
Annex C-7 Integrated executive summary of th e arguments of the Republic of Korea C-24 
Annex C-8 Integrated executive summary of  the arguments of New Zealand C-26 
 
 WT/DS384/RW • WT/DS386/RW 
 
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  CASES CITED IN THESE REPORTS 
Short title Full case title and citation 
Australia – Ammonium  
Sulphate  Working Party Report, The Australian Subsidy on Ammonium Sulphate , 
GATT/CP.4/39, adopted 3 April 1950, BISD II, p. 188 
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R, adopted 17 December 2010, 
DSR 2010:V, p. 2175 
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 
(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 – Autos Panel Report, Canada – Certain Measures Affe cting the Automotive Industry , 
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate 
Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043 
Canada – Continued 
Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R, adopted 14 November 2008, 
DSR 2008:XIV, p. 5373 
Canada – Renewable Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Me asures Relating to the Feed-in Tariff 
Program , WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013 
Canada – Wheat Exports and 
Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/R, adopted 27 September 2004, 
upheld by Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817 
Canada – Wheat Exports and 
Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 
2004, DSR 2004:VI, p. 2739 
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) 
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 
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 – Asbestos Appellate Body Report, European Communities – Measures Affecting 
Asbestos and Asbestos -Containing Products , WT/DS135/AB/R, adopted 
5 April 2001, DSR 2001:VII, p. 3243 
EC – Asbestos Panel Report, European Communities – Measur es Affecting Asbestos and 
Asbestos-Containing Products , WT/DS135/R and Add.1, adopted 5 April 
2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 2001:VIII, p. 3305 
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 – Bananas III 
(Article 21.5 – Ecuador II)  /  EC – Bananas III (Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adopted 
11 December 2008, and Corr.1 / European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of 
the DSU by the United States , WT/DS27/AB/RW/USA and Corr.1, adopted 
22 December 2008, DSR 2008:XVIII, p. 7165 WT/DS384/RW • WT/DS386/RW 
 
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  Short title Full case title and citation 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of 
the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
p. 965  
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 – Sardines Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 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/DS231/AB/R, DSR 2002:VIII, p. 3451 
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 / 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 – Trademarks and 
Geographical Indications 
(Australia) Panel Report,  European Communities – Prot ection of Trademarks and 
Geographical Indications for Agricultur al Products and Foodstuffs, Complaint 
by Australia , WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603 
EEC – Oilseeds I  GATT Panel Report, European Economic Comm unity – Payments and 
Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins , L/6627, adopted 25 January 1990, BISD 37S, p. 86 
India – Additional Import 
Duties Appellate Body Report, India – Additional and Extr a-Additional Duties on 
Imports from the United States , WT/DS360/AB/R, adopted 17 November 
2008, DSR 2008:XX, p. 8223 
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 
p. 1827 
India – Patents (US) Appellate Body Report, India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 
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 – Film Panel Report, Japan – Measures Affecting Cons umer Photographic Film and 
Paper , WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, p. 1179 
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R, 
WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body 
Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44 
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 
Mexico – Corn Syrup 
(Article 21.5 – US) Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU  
by the United States , WT/DS132/RW, adopted 21 November 2001, upheld by 
Appellate Body Report WT/DS132/AB/RW, DSR 2001:XIII, p. 6717 
Mexico – Taxes on Soft Drinks Appellate Body Report, Mexico – Tax Measures on  Soft Drinks and Other 
Beverages , WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, p. 3 
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 WT/DS384/RW • WT/DS386/RW 
 
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  Short title Full case title and citation 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701 
Turkey – Rice Panel Report, Turkey – Measures Affectin g the Importation of Rice , 
WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, p. 2151 
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 
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 
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 
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/DS384/AB/R / WT/DS386/AB/R, 
DSR 2012:VI, p. 2745 
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R, adopted 20 March 2000, as modified by 
Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, p. 1675 
US – FSC 
(Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Ar ticle 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 
p. 4721 
US – FSC 
(Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 
p. 55 
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 – Offset Act 
(Byrd Amendment) Appellate Body Report, United States – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 
2003, DSR 2003:I, p. 375 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular G oods from Argentina – Recourse to 
Article 21.5 of the DSU by Argentina , WT/DS268/AB/RW, adopted 11 May 
2007, DSR 2007:IX, p. 3523 
US – Shrimp 
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Cert ain Softwood Lumber from Canada  
– Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, 
adopted 20 December 2005, DSR 2005:XXIII, p. 11357 
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 
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R, adopted 
13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R 
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 – 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/RW • WT/DS386/RW 
 
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  Short title Full case title and citation 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006, and Corr.1, DSR 2006:II, p. 417 
 
 WT/DS384/RW • WT/DS386/RW 
 
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  LIST OF EXHIBITS CITED IN THESE REPORTS 
CANADA 
Number Title 
CDA-1 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), p. 31367 
CDA-2 Final Rule on Mandatory Country of Origin La beling 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), p. 2658 
CDA-3 Agricultural Marketing Act of 1946, Public Law No. 107-171, 7 U.S.C. § 1638 (2012) 
CDA-4 
 Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, § 10816, 
116 Stat. 134, 533-535 
CDA-5 
 Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234, § 11002, 122 Stat. 
923, 1351-1354  
CDA-7 Proposed Rule on Mandatory Country of Origin Labeling of Beef, Lamb, Pork, Fish, 
Perishable Agricultural Commodities, and Peanuts, United States Federal Register,  Vol. 
68, No. 210 (30 October 2003), p. 61944 
CDA-8 R. Jurenas and J. L. Greene, "Country-o f-Origin Labeling for Foods and the WTO Trade 
Dispute on Meat Labeling", CRS Report for Congress, Cong ressional Research Service, 
16 September 2013 
CDA-9 Federal Meat Inspection Act, 21 U.S.C. §§ 601 et seq. (2011) 
CDA-10 Perishable Agricultural Commodities Act Amendments of 1930, 7 U.S.C. §499a (2012) 
CDA-13 Proposed Rule on Mandatory Country of Orig in Labeling of Beef, Pork, Lamb, Chicken, 
Goat Meat, Wild and Farm-Raised Fish an d Shellfish, Perishable Agricultural 
Commodities, Peanuts, pecans, Ginseng, and Macadamia Nuts, United States Federal 
Register , Vol. 78, No. 48 (12 March 2013), p. 15645 
CDA-17 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Declaration of Brad McDowell in Support of Pl aintiffs' Motion for a Preliminary Injunction, 
19 July 2013 
CDA-18 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Declaration of Martin D. Unrau in Suppor t of Plaintiffs' Motion for a Preliminary 
Injunction, 25 July 2013 
CDA-19 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Declaration of Bryan Karwal in Support of Pl aintiffs' Motion for a Preliminary Injunction, 
19 July 2013 
CDA-22 Comments submitted to USDA by the Food  Marketing Institute dated 11 April 2013 
CDA-23 Comments submitted to USDA by Amer ican Meat Institute dated 9 April 2013 
CDA-24 Comments submitted to USDA by the Nati onal Pork Producers Council dated 11 April 
2013 
CDA-25 Comments submitted to USDA by Tyson Foods, Inc. dated 11 April 2013 
CDA-28 Comments submitted to USDA by Agri Beef Co. dated 14 April 2013 
CDA-29 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Declaration of Brad McDowell in Support of Pl aintiffs' Motion for a Preliminary Injunction, 
15 August 2013 
CDA-30 Comments submitted to USDA by Southwest Meat Association dated 9 April 2013 
CDA-31 Comments submitted to USDA by Johnsonville dated 11 April 2013 
CDA-32 Comments submitted to USDA by FPL Food, LLC dated 11 April 2013 
CDA-33 Comments submitted to USDA by Premier Pork Marketing Inc. dated 2 April 2013 
CDA-34 Comments submitted to USDA by the Texas Department of Agriculture dated 11 April 
2013 
CDA-35 Comments submitted to USDA by Grocery Manufacturers Association dated 11 April 2013 
CDA-36 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Memorandum of Law in Support of Plaintiffs' Motion for a Preliminary Injunction, 25 July 
2013 
CDA-37 Comments submitted to USDA by the Na tional Cattlemen's Beef Association dated 
11 April 2013 
CDA-42 (BCI) Title is BCI 
CDA-43 (BCI) Title is BCI 
CDA-44 (BCI) Title is BCI 
CDA-45 (BCI) Title is BCI 
CDA-46 (BCI) Title is BCI 
CDA-47 (BCI) Title is BCI WT/DS384/RW • WT/DS386/RW 
 
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  Number Title 
CDA-48 (BCI) Title is BCI 
CDA-49 (BCI) Title is BCI 
CDA-50 (BCI) Title is BCI 
CDA-51 (BCI) Title is BCI 
CDA-52 (BCI) Title is BCI 
CDA-53 (BCI) Title is BCI 
CDA-54 (BCI) Title is BCI 
CDA-55 (BCI) Title is BCI 
CDA-56 (BCI) Title is BCI 
CDA-58 Comments submitted to USDA by American  Farm Bureau Federation dated 4 April 2013 
CDA-59 Comments submitted to USDA by Beef Northwest Feeders dated 4 April 2013 
CDA-60 Comments submitted to USDA by Roaring Springs Ranch dated 8 April 2013 
CDA-61 Comments submitted to USDA by Country Natural Beef dated 8 April 2013 
CDA-62 Comments submitted to USDA by West Michigan Beef Co. LLC posted 21 March 2013 
CDA-63 Comments submitted to USDA by Dallas City Packing Inc. posted 1 April 2013 
CDA-64 Comments submitted to USDA by Cactus Feeders Operating, LLC dated 11 April 2013 
CDA-65 Comments submitted to USDA by S unnycrest Inc, posted 3 April 2013 
CDA-66 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Complaint for Declaratory and Injunctive Re lief, No. 13-cv-1033-KBJ, The United States 
District Court for the District of Columbia, 8 July 2013 
CDA-67 Agri Beef Co., Agri Beef Co. History 
CDA-68 American Meat Institute, et al. v. United States Department of Agriculture, et al., 
Supplemental Declaration of Martin D. Unra u in Support of Plaintiffs' Motion for a 
Preliminary Injunction, 16 August 2013 
CDA-69 George Morris Centre, "Canadian Pork Market Review", 19 July 2013 
CDA-70 Tyson Foods, Inc., "U.S. Country of Orig in of Labeling Rules and Canadian Cattle" 
CDA-71 D. A. Sumner, "Differential Ef fects of the Original COOL Measure on Canadian Cattle and 
Hogs: Empirical Specification of the Statistical Equations and Econometric Methods, with 
an Update of the Data to Reflect Recent Impacts", 9 September 2013 
CDA-75 Cattlemen's Beef Board and National Cattlemen's Beef Association, "Modern Beef 
Production: Fact Sheet" 
CDA-76 Comments submitted to USDA by the Southeastern Livestock Network dated 11 April 
2013 
CDA-82  G. T. Tonsor, J. L. Lusk, T. C. Schroeder, and M. R. Taylor, "Mandatory Country of Origin 
Labeling: Consumer Demand Impact", Ka nsas State University, Department of 
Agricultural Economics, (Pub lication AM-GTT-2012.6) (2012) 
CDA-83 
 M. R. Taylor and G. T. Tonsor, "Revealed Demand for Country of Origin Labeling of Meat 
in the United States", Journal of Agricultural and Resource Economics  38(2), (2013), 
pp. 235-47 
CDA-84 
 G. T. Tonsor, T. C. Schroeder and J. L. Lusk, "Consumer Valuation of Alternative Meat 
Origin Labels", Journal of Agricultural Economics  (2012) 
CDA-85 J. L. Lusk, and B. C. Briggeman, "Food values", American Journal of Agriculture 
Economics , 91(1) (2009), pp. 184-196 
CDA-86 E. Golan, et. al., "Traceability in the U.S. Food Supply: Economic Theory and Industry 
Studies", Economic Research Service, USDA, Agricultural Economic Report No. 830 
CDA-89 D. J. Hayes and S. R. Meyer, "Impact of Ma ndatory Country of Origin Labelling on U.S. 
Pork Exports", Center for Agricultural and Rural Development, Iowa State University, 
(2003) 
CDA-92 J. L. Greene, "Animal Identification and Traceability: Overview and Issues", CRS Report 
for Congress, Congressional Research Service, 29 November 2010 
CDA-93 Final Rule on Traceability for Livestock Moving Interstate, Parts 71, 77, 78, and 86, 
United States Federal Register, Vol. 78, No. 6  (9 January 2013), p. 2040 
CDA-95 Ministry of Agriculture, Forestry and Fisheries of Japan, Cattle Identification and 
Traceability Systems 
CDA-96 Instituto Nacional de Carnes, "Traceability: A Uruguayan Model", 6 June 2012 
CDA-97 Marel, "Insight Meat Processing, 2012 
CDA-98 Marel, "Insight Meat Processing, 2013 
CDA-99 Harmonized Tariff Schedule of the United States, Chapter 1 Live Animals, 1 July 1991, 
1 July 2000, and 1 July 2013 
CDA-101 Tariff Act of 1930, 19 U.S.C. § 1202 (2012) 
CDA-104 M. N. González, "Sistema de trazabilidad es el mayor hito en la ganadería nacional en los 
últimos años", Presidencia 
CDA-105 Instituto Nacional de Carnes, El Futuro: Fase 2 Y Trazabilidad 
CDA-106 Sistema Electrónico de Información de la Industria Cárnica 
CDA-108 Canfax, Alberta Feeder Cattle Price Basis 
CDA-110 George Morris Centre Memo and Survey 
CDA-113 CME Group, Daily Livestock Report, Vol. 11, No. 213, 5 November 2013 
CDA-116 Canadian Cattlemen's Association, U.S. Cattle Procurement Maps 
CDA-117 Canadian Pork Council, U.S. Hog Procurement Maps WT/DS384/RW • WT/DS386/RW 
 
- 12 - 
 
  Number Title 
CDA-126 D. A. Sumner, "The magnitude of added compliance costs required for a 
non-discriminatory alternative measure to have  equivalent export losses (trade effects) 
as the original discriminatory COOL measure", 17 December 2013 
CDA-127 T. C. Schroeder and G. T. Tonsor, "Internati onal cattle ID and traceability: Competitive 
implications for the US", Food Policy , 37 (2012) 
CDA-131 Ministry of Livestock, Agriculture and Fish ery, National Meat Institute, Inter-American 
Institute for Cooperation on Agriculture, Office in Uruguay, Horizontal Technical 
Cooperation Division, "Uruguay's Experience in  Beef Cattle Traceability", December 2009 
CDA-133 USDA, Animal and Plant Health Inspection Service (APHIS), "Benefit-Cost Analysis of the 
National Animal Identification System", 14 January 2009 
CDA-134 Uruguay, Decrees from the President of the Republic, "Implementación del Sistema de 
Control Electrónico de Faena de Bovinos", 29 August 2003 
CDA-145 (BCI) Title is BCI 
CDA-148 Canfax & Canfax Research Services, Canfax Feeder Cattle Trade Report 
CDA-150 (BCI) Title is BCI 
CDA-151 (BCI) Title is BCI 
CDA-154 G. Lister, G. Tonsor, M. Brix, T. Schroder and C. Yang, "Food Values Applied to Livestock 
Products", Working Paper, 7 February 2014, accessed 25 February 2014 
CDA-157 Canfax & Canfax Research Services, Canfax Feeder Cattle Price Basis Report 
CDA-158 C. Wilson Gray, "The National Animal Identification System: Basics, Blueprint, Timelines, 
and Processes", WEMC, FS#1-04, Fall 2004, accessed 26 February 2014 
CDA-179 D. A. Sumner, Detailed results from regressions quantifying the effects of the COOL 
measure on Canadian cattle and hogs, Part I 
CDA-180 D. A. Sumner, Detailed results from regres sions quantifying the effects of the COOL 
measure on Canadian cattle and hogs, Part II 
CDA-181 D. A. Sumner, Detailed results from regressions quantifying the effects of the COOL 
measure on Canadian cattle and hogs, Part III 
CDA-189 Tariff Act of 1930, 19 U.S.C. § 1202 (2012) 
Appendix CDA-2 US Cattle Livestock Supply Market 
Appendix CDA-7  US Hog Livestock Supply Market 
 
 
 
MEXICO 
Number Title 
MEX-3 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; Final Rule, United States Federal Register,
 Vol. 78, No. 
101, (24 May 2013), p. 31367 
MEX-7 Perishable Agricultural Commodities Act of 1930, 7 U.S.C. § 499 
MEX 12 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; Final Rule, United States Federal Register,
 Vol. 74, No. 
10, (15 January 2009), p. 2658 
MEX-15-A 
MEX-15-B 
MEX-15-C  
Sample Labels 
MEX-17 (BCI) Title is BCI 
MEX-18 (BCI) Title is BCI 
MEX-19 (BCI) Title is BCI 
MEX-21 Letter from Tyson Foods, Inc. to USDA (April 11, 2013) 
MEX-22 Letter from Cargill, Incorporated to USDA 
MEX-23 Declaration of Rogers & Sons, Ltd. in suppo rt of Plaintiffs' Motion for a Preliminary 
Injunction, Case No. 13-cv-1033-KBJ (filed July 11, 2013); Declaration of Rogers & 
Sons, Ltd. in support of Plaint iff's Partial Opposition to Pr oposed Defendant-Intervenors' 
Motion to Intervene, Case No. 13-cv-1033-KBJ (August 16, 2013) 
MEX-24 Letter to USDA from Agri B eef Co., Central Valley Meat Co ., Preferred Beef Group, Walt's 
Wholesale Meats, Inc., Schenk Packing Co., Inc., Harris Ranch Beef Company, Dallas City Packing, Inc., Caviness Beef Packers,  Ltd., and Sam Kane B eef Processors, Inc. 
(April 11, 2013) 
MEX-25 Letter from National Grocers Association (NGA) to USDA (April 11, 2013) 
MEX-26 Letter from Food Marketing Institute (FMI) to USDA (April 11, 2013) 
MEX-27 Declaration of Runnells Peters Feedyard LLC in Support of Plaintiffs' Partial Opposition to 
Proposed Defendant-Intervenors' Motion to Intervene, Case No. 13-cv-1033-KBJ 
(August 16, 2013) WT/DS384/RW • WT/DS386/RW 
 
- 13 - 
 
  Number Title 
MEX-28 Declaration of Rolando Peña Hinojosa in Support of Plaintiffs' Motion for a Preliminary 
Injunction, Case No. 13-cv-1033-KBJ (August 15, 2013) 
MEX-33 Congressional Research Service, "Animal Identification and Meat Traceability" 
MEX-34 G. T. Tonsor, T. C. Schroeder and Jayson  L. Lusk, "Consumer Valuation of Alternative 
Meat Origin Labels", Journal of Agricultural Economics  (2012) 
MEX-35 M. R. Taylor and G. T. Tonsor, "Revealed Demand for Country of Origin Labeling of Meat 
in the United States", Journal of Agricultural and Resource Economics (forthcoming) 
MEX-36 USDA, "Consumers Appear Indifferent to Co untry-of-Origin Labeling for Shrimp" (June 5, 
2012) 
MEX-37 D. J. Hayes and S. R. Meyer, "Impact of Ma ndatory Country of Origin Labelling on U.S. 
Pork Exports", Center for Agricultural and Rural Development, Iowa State University, 
(2003) 
MEX-38 Harmonized Tariff Schedule of the United States (2013) (excerpt) 
MEX-41 M. B. Bowling, D. L. Pendell, D. L. Morris, Y. Yoon, K. Katoh, K. E. Belk, and G. C. Smith, 
"Review: Identification and Traceability of Cattle in Selected Countries Outside of North 
America", Professional Animal Scientist  24 (2008), pp. 287-94 
MEX-42 Ministry of Agriculture, Forestry and Fisheries of Japan, “Cattle Identification and 
Traceability Systems” 
MEX-43 Uruguay’s Presidential media publ ication, “Sistema de trazabili dad es el mayor hito en la 
ganadería nacional en los últimos años” (May 2013) 
MEX-44 Media release from BBC Mundo, “¿De dónde viene su bife? La innovación uruguaya que 
conquista mercados” (October 2012) 
MEX-48 
MEX-49 
MEX-50 
MEX-51 
MEX-52  
 
Sample Labels 
MEX-55 Declaration of Charles McVean, para. 5, Ex hibit 2b to Defendant-Intervenors' Opposition 
To Plaintiffs’ Motion For A Preliminary Injunction, Case 1:13-cv-01033-KBJ  (August 9, 2013) 
MEX-56 U.S. Country of Origin Labeling Rules and Canadian Cattle 
MEX-60 Response to Panel Qu estions About Statistics 
MEX-62 M. R. Taylor and G. T. Tonsor, "Revealed Demand for Country of Origin Labeling of Meat 
in the United States", Journal of Agricultural and Resource Economics  38(2), (2013), pp. 
235-47 
MEX-82 Final Rule, Traceability for Livestock Movi ng Interstate, United States Federal Register, 
Vol. 78, No. 6 (9 January 2013), p. 2040 
MEX-86 Proposed Rule – Traceability for livestock moving interstate, Summary of Economic 
Analysis  
MEX-87 Application of CDA-126 to Mexico 
 
 
 
UNITED STATES 
Number Title 
US-3 USDA Country of Origin Labeling Survey (July 2009) 
US-5 WTO Members with Country of Origin Regimes 
US-6 TBT Notifications of Country of Origin Measures 
US-9 Canada's Mandatory COOL Re quirements for Imported 
Products 
US-10 Scope of Third Party COOL Regulations 
US-20 
 Letter from Director-General of the GATT, Peter D. Sutherland to Ambassador Schmidt 
(Geneva, December 15,1993) 
US-27 National Meat Case Study Methodology 
US-28 Amended COOL Label photos 
US-33 Beef Imports an d Beef Consumption 
US-45 Canfax Research Services, Ca nadian Cattlemen's Association, "Economic Impacts of 
Livestock Production in Canada – A Regional  Multiplier Analysis," Suren Kulshreshtha, 
Oteng Mondongo and Allan Florizone, at 11-12 (Sept. 2012) 
US-46 Consumer Federation of America, "Lar ge Majority of Americans Strongly Support 
Requiring More Information on Origin of Fresh Meat", May 15, 2013 
US-47 Consumer Federation of America, letter dated 9 April 2013 of Chris Waldrop, Director of 
Food Policy Institute, to Julie Henderson, Director of COOL Division, USDA 
US-48 National Research Center, "Country of Orig in Labeling Poll, Final Report", 4 October 2010 
US-50 "Raising Cattle: The Stages of Beef Production," 2014 Cattlemen's Beef Board and 
National Cattlemen Beef Association WT/DS384/RW • WT/DS386/RW 
 
- 14 - 
 
  Number Title 
US-52 W. J. Umberger, "County-of-origin labeling  (CoOL) A review of relevant literature on 
Consumer Preferences, Understanding, Use an d Willingness-to-Pay for CoOL of Food and 
Meat," Final Report Food Standards Australia New Zealand, (2010), pp. 20-22 
US-55 USDA, Animal and Plant Health Inspection Service (APHIS), Regulatory Impact Analysis 
& Final Regulatory Flexibility Analysis, "Traceability for Livestock Moving Interstate," 
APHIS-2009-0091 (2012), p. 34 
US-58 J. Rude, J. Carlberg, and S. Pellow, "Integration to Fragmentation: Post-BSE Canadian 
Cattle Markets, Processing Ca pacity, and Cattle Prices", Canadian Journal of Agricultural 
Economics , 55(2) (2007), pp. 197-216 
US-59 Econometric Exhibit A in response to Panel question A 
US-62 Econometric Exhibit F in response to Panel question F 
US-63 G. W. Brester and V. Smith, "Evaluatin g the Impacts of the US Department of 
Commerce's Preliminary Imposition of Tariffs on US Imports of Canadian Live Cattle," 
Trade Research Center discu ssion paper No. 34, Montana State University, Bozeman, 
MT, (1999) 
US-64 G. W. Brester, J. M. Marsh, and V. Smit h, "The Impacts on U.S. and Canadian Slaughter 
and Feeder Cattle Prices of a U.S. Impo rt Tariff on Canadian Slaughter Cattle," Canadian 
Journal of Agricultural Economics , 50(1) (2005), pp. 51-66 
US-65 R. Barichello, T. Josling and D. Sumner, "Agricultural Trade Relations between Canada 
and the United States", Working paper 2004-03, Food and Resource Economics, 
University of British Columbia (2004) 
US-66 D. Sumner, R. Barichello, and M. Paggi, "Economic Analysis in Disputes over Trade 
Remedy and Related Measures  in Agriculture with Examples from Recent Cases", 
Working Paper No. 2004-01, Food and Resource Economics, University of British Columbia, (2004) 
US-68 "New Poll Shows Consumers Overwhelming Support Country-of-Origin Labeling on 
Food," Public Citizen Press Release (20 June 2005) 
US-69 Letter from Consumer Federation of America to USDA (Aug. 20, 2007) 
US-70 Consumers Union letter to Congress (Feb. 26, 2007) 
US-71 Comments submitted by John and Rita Lesch to USDA (Aug. 2007) 
US-72 Comments submitted by Ron Krishner to USDA (July 2007) 
US-73 Comments submitted by Jennifer Walla to USDA (July 2007) 
US-74 Letter from Ross Vincent to FSIS (Oct. 2, 2001) 
US-76 S. Pouliot and D. Sumner, "Differential Impacts of Country of Origin Labeling: COOL 
Econometric Evidence from Cattle Markets", Structure and Performance of Agriculture 
and Agri-Products Industry Network, (2012) 
US-77 R. Green, W. Hahn, and D. Rocke, "Standar d Errors for Elasticities: A Comparison of 
Bootstrap and Asymptotic  Standard Errors", Journal of Business & Economic Statistics , 
5(1) (1987) 
US-78 Revised Econometric Exhibit F (Exhibit US-62) 
US-81 J. L. Lusk and J. D. Anderson, "Effects of Country-of-Origin Labeling on Meat Producers 
and Consumers", Journal of Agricultural and Resource Economics,  29(2) (2004), 
pp. 185-205 
 
 WT/DS384/RW • WT/DS386/RW 
 
- 15 - 
 
  ABBREVIATIONS USED IN THESE REPORTS 
Abbreviation Description 
2002 Farm Bill The Farm Security and Rural Investment Act of 2002 , Pub. L. No. 107-171, 
§ 10816, 116 Stat. 134, 533-535 (Exhibit CDA-4) 
2008 Farm Bill The Food, Conservation, and Energy Act of 2008 , Pub. L. No. 110-234, § 11002, 
122 Stat. 923, 1351-1354 (Exhibit CDA-5) 
2009 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. 74, No. 10, (15 January 2009), p. 2658 
(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), p. 31367 
(Exhibits CDA-1 and MEX-3) 
AMS Agricultural Marketing Service of the United States Department of Agriculture 
amended COOL measure The COOL statute, and the 2009 Final Rule as amended by the 2013 Final Rule 
BCI Business confidential information  
BSE Bovine spongiform encephalopathy 
COOL Country of origin labelling 
COOL statute The Agricultural Marketing Act of 1946, Public Law No. 107-171, 7 U.S.C. § 
1638 (2012), as amended by the 2002 Farm Bill and the 2008 Farm Bill (Exhibit 
CDA-3) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes 
eID Electronic identification  
GATS General Agreement on Trade in Services 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Hayes and Meyer paper D. J. Hayes and S. R. Meyer, "Impact of Mandatory Country of Origin Labelling 
on U.S. Pork Exports", Center for Agri cultural and Rural Development, Iowa 
State University, (2003) (Exhibits CDA-89 and MEX-37) 
Interim final rule (AMS) Interim Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, 
Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, 
Pecans, Ginseng, and Macadamia Nu ts, 7 CFR Part 65 (1 August 2008) 
Interim final rule (FSIS) Interim Final Rule on Mandatory Country of Origin Labelling of Muscle Cuts of 
Beef (including Veal), Lamb, Chicken,  Goat, and Pork, Ground Beef, Ground 
Lamb, Ground Chicken, Ground Goat, and Ground Pork, 9 CFR Parts 317 and 
381(28 August 2008) 
Interstate Livestock 
Traceability Rule Final Rule on Traceability for Livestock Moving Interstate, Parts 71, 77, 78, and 
86, United States Federal Register, Vol. 78, No. 6  (9 January 2013), p. 2040 
(Exhibits CDA-93 and MEX-82) 
ICVI Interstate certificate of veterinary inspection 
KSU Consumer Valuation G. T. Tonsor, T. C. Schroede r and J. L. Lusk, "Consume r Valuation of Alternative 
Meat Origin Labels", Journal of Agricultural Economics,  (2012) (Exhibits CDA-84 
and MEX-34) 
KSU Revealed Demand M. R. Taylor and G. T. To nsor, "Revealed Demand for Country of Origin Labeling 
of Meat in the United States", Journal of Agricultural and Resource Economics  
38(2), (2013), pp. 235-47 (Exhibits CDA-83, MEX-35, and MEX-62) 
KSU Study Fact Sheet G. T. Tonsor, J. L. Lusk, T. C. Schroeder, and M. R. Taylor, "Mandatory Country 
of Origin Labeling: Consumer Demand  Impact", Kansas State University, 
Department of Agricultural Economic s, (Publication AM-GTT-2012.6) (2012) 
(Exhibit CDA-82) 
Mexican variant of the 
Sumner Economic Analysis Application of the Sumner Economic Analysis to Mexico (Exhibit MEX-87) 
MFN Most-favoured nation 
NAFTA North American Free Trade Agreement 
NAIS National Animal Identification System 
original COOL measure The COOL statute and the 2009 Final Rule 
PACA Perishable Agricultural Commodities Act of 1930, 7 U.S.C. § 499 
(Exhibits CDA 10 and MEX-7) 
RFID Radio frequency identification  
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures WT/DS384/RW • WT/DS386/RW 
 
- 16 - 
 
  Abbreviation Description 
Sumner Economic Analysis D. A. Sumner, "The magnitude of a dded compliance costs required for a 
non-discriminatory alternative measure to have equivalent expo rt losses (trade 
effects) as the original discriminatory COOL measure", 17 December 2013 
(Exhibit CDA-126) 
Sutherland letter Letter from Director-General of the GATT, P. D. Sutherland to Ambassador 
Schmidt (Geneva, December 15,1993) (Exhibit US-20) 
TBT Agreement Agreement on Technical Barriers to Trade 
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679 
USDA United States Depart ment of Agriculture 
Updated Sumner 
Econometric Study D. A. Sumner, "Differentia l Effects of the Original COOL Measure on Canadian 
Cattle and Hogs: Empirical Specification of the Statistical Equations and Econometric Methods, with an Update of the Data to Reflect Recent Impacts", 9 September 2013 (Exhibit CDA-71); and D. A. Sumner, Detailed results from 
regressions quantifying the effects of th e COOL measure on Canadian cattle and 
hogs, Part I (Exhibit CDA-179), Part  II (Exhibit CDA-180), and Part III 
(Exhibit CDA-181) 
WTO World Trade Organization 
WTO Agreement Marrakesh Agreement Esta blishing the World Trade Organization 
 WT/DS384/RW • WT/DS386/RW 
 
- 17 - 
 
  LIST OF TABLES 
Number Title 
Table 1 Definitions of origin an d basic labels for muscle cuts 
Table 2 Examples of possible muscle cut labels in light of flexibilities 
Table 3 Label A 
Table 4 Label B on Category B muscle cu ts of a single foreign origin 
Table 5 Label B on Category B muscle  cuts of different foreign origins 
Table 6 Label B on Category B muscle cuts of  different multiple foreign origins 
Table 7 Label C on Category C muscle  cuts of a single foreign origin 
Table 8 Label C on Category C muscle cu ts of different foreign origins 
Table 9 Label C on Category C muscle cuts  of different multiple foreign origins 
Table 10 More labels as a result of the commingling and country order flexibilities being removed 
Table 11 More labels for muscle cuts from Mexican feed er and Canadian fed ca ttle as a result of 
the commingling and country orde r flexibilities being removed 
Table 12 Change in coverage of label D 
Table 13 Application of the flexibility for multip le countries of raising to category B scenarios 
Table 14 Country of raising for category C scenarios 
LIST OF FIGURES 
Number Title 
Figure 1 Weekly Alberta-Nebraska fe d steers basis with linear trends 
Figure 2 Weekly Alberta-Nebraska fed steers  basis with non-linear trends 
 
 WT/DS384/RW • WT/DS386/RW 
 
- 18 - 
 
  1   INTRODUCTION 
1.1  Complaints by Canada and Mexico 1.1.  This compliance dispute concerns the challenges by Canada and Mexico of the measure taken 
by the United States in 2013 to comply with the Dispute Settlement Body (DSB) recommendations 
and rulings in United States – Certain Country of Origin Labelling (COOL) Requirements (DS384 
and DS386).
1 
1.2.  On 10 June 2013, Canada and Mexico reached an understanding with the United States in 
"Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding" 
(Sequencing Agreement).2 According to paragraph 2 of this Sequencing Agreement, Canada and 
Mexico were not required to hold consultations with the United States before requesting the 
establishment of a panel under Article 21.5 of  the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU). 
1.2  Panel establishment and composition 1.3.  On 19 August 2013, Canada and Mexico requ ested 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, with standard terms of reference as set out in Article 7.1 of the DSU.
3 
1.4.  At its meeting on 25 September 2013, the DSB referred this dispute to the original panel if 
possible, in accordance with Article 21.5 of the DSU. 
1.5.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter refe rred to the DSB by Canada in document 
WT/DS384/26 and by Mexico in document WT/DS386/25, and to make such findings 
as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements. 
1.6.  In accordance with Article 21.5 of the DS U, the Panel was composed on 27 September 2013 
as follows: 
Chairperson: Mr Christian Häberli 
 
 Members:  Mr Manzoor Ahmad     Mr João Magalhães  
1.7.  Australia; Brazil; Canada (for DS386); China; Colombia; the European Union; Guatemala; 
India; Japan; the Republic of Korea; Mexico (for DS384); and New Zealand reserved their rights to participate in the Panel proceedings as third parties. 
1.3  Panel proceedings 
1.3.1  General 1.8.  Taking into account the United States' letter of 10 October 2013 and after consultation with 
the parties, the Panel Working Procedures
4 and timetable were adopted on 28 October 2013. After 
further consulting the parties, the Panel revised its Working Procedures on 21 January 2014 and its timetable on 5 March 2014. 
                                               
1 See Panel Reports, US – COOL , as modified, reversed, or upheld by  the Appellate Body Reports in the 
same dispute. 
2 WT/DS384/25 and WT/DS386/24. 
3 WT/DS384/26 and WT/DS386/25. 
4 See the Panel Working Procedures (as revise d on 21 January 2014) in Annexes A-1 and A-2. WT/DS384/RW • WT/DS386/RW 
 
- 19 - 
 
  1.9.  The substantive meeting with the partie s was held on 18 and 19 February 2014. A session 
with the third parties took place on 19 February 2014. On 10 April 2014, the descriptive part of the Panel Reports was issued to the parties. The Interim Reports were issued to the parties on 27 June 2014. The Final Reports were issued to the parties on 29 July 2014. 
1.3.2  Procedures for an open substantive meeting 
1.10.  At the organizational meeting held on 18 October 2013, Canada and the United States 
requested, and the Panel agreed, that the substant ive meeting would be open to public viewing. 
Mexico did not object to open hearings for these proceedings specifically, without prejudice to its 
systemic views on open hearings. The parties proposed additional procedures for an open substantive meeting. The Panel took into account the joint proposals received from the parties, 
and adopted additional procedures for an open substantive meeting on 28 October 2013, which 
were revised on 21 January 2014. These procedures provided for public viewing by means of 
simultaneous closed-circuit television broadcasting of the substantive meeting to a separate room. Closed sessions were foreseen for the parties to address business confidential information and for 
those third parties that had requested not to make their statements public.
5 
1.3.3  Procedures to protect Busi ness Confidential Information (BCI) 
1.11.  At the organisational meeting on 18 October 2013, the parties agreed to submit proposals 
for additional procedures to protect BCI. On 28 October 2013, additional procedures to protect BCI 
were adopted, which took into account the joint proposal received from the parties.6 
1.3.4  Procedures and Reports for DS384 and DS386 1.12.  At the organizational meeting of 18 October 2013, the United States stated that the DSB 
had not established a single panel pursuant to Article 9.1 of the DSU, and expressed that the 
United States would be amenable to having two panels with harmonized procedures and 
timetables in accordance with Article 9.3 of the DSU. The United States requested that separate 
but harmonized Working Procedures be adopted for the compliance proceedings in DS384 and 
DS386. 
1.13.  After having consulted the complainants, sepa rate but substantively identical versions of the 
Working Procedures, as well as additional procedur es to protect BCI and additional procedures for 
an open substantive meeting, were adopted on 28  October 2013. In addition, on the same date, 
a single joint timetable was adopted for DS384 and DS386. 
1.14.  At the substantive meeting on 18 and 19 February 2014, the parties were asked whether 
they objected to including the Panel Reports in a single document with the understanding that, 
following the same approach as in the original dispute, the final sections on Conclusions and Recommendations would be printed on separate pages with the relevant DS symbol. The parties 
did not object to this. In light of this, the Panel did not consider further the issue raised by the 
United States under Article 9 of the DSU. 
1.3.5  Request for enhanced third-party rights 
1.15.  In its third-party written submission of 2 December 2013, the European Union requested 
certain enhanced third-party rights, namely that: 
third parties be permitted to be present throughout the hearing; third parties should 
be permitted to comment, at the invitation of the Panel, on matters arising during the 
hearing; third parties should receive copies of any questions to the parties, their 
responses and comments, and be permitted to comment thereon; and third parties 
                                               
5 See additional procedures for an open su bstantive meeting in Annexes A-3 and A-4. 
6 See additional procedures to protect BCI in Annex A-5 and A-6. WT/DS384/RW • WT/DS386/RW 
 
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  should similarly be permitted to be present at any subsequent meeting of the 
compliance Panel with the parties.7 
1.16.  After consulting the parties, on 21 Janu ary 2014 the Panel granted the following enhanced 
rights to all third parties: 
a. the right to be present during the entirety  of the substantive meeting of the Panel; 
b. the right in the substantive meeting to ask ques tions, at the invitation of the Panel, to 
the parties or the other third parties without any obligation to respond on the part of 
parties or other third parties; and 
c. access to the Panel's written questions to the parties and each party's written answers to 
questions after the substantive meeting of the Panel. 
2  FACTUAL ASPECTS 
2.1  Measure at issue 
2.1.  The claims brought by Canada and Mexico concern the United States' measure relating to the 
country of origin labelling of muscle cuts of meat (amended COOL measure). In their panel 
requests8, Canada and Mexico identified the following instruments as the subject of their claims: 
a. the Agricultural Marketing Act of 1946 (7 U.S. C. 1621 et seq.), as amended by the Farm 
Security and Rural Investment Act of 2002 (Section 10816 of Public Law 107-171) and 
the Food, Conservation, and Energy Act of  2008 (Section 11002 of Public Law 110-246); 
b. 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 (7 CFR Parts 60 and 65), 74 Fed. Reg. 2658-2707 
(15 January 2009); 
c. 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 (7 CFR Parts 60 and 65), 78 Fed. Reg. 31367-31385 
(24 May 2013); and 
d. any modifications or amendments to instruments listed in (a) through (c) above, 
including any further implementing guidance, directives, policy announcements or any 
other document issued in relation to those instruments. 
2.2  Products at issue 2.2.  As the complainants submitted in the origin al dispute, the products at issue are imported 
Canadian cattle and hogs as well as imported Mexican cattle, which are used in the United States 
to produce beef and pork, commodities covered by the amended COOL measure.
9 
3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS 
3.1.  Canada and Mexico request that the Panel 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 Articles 2.1 and 2.2 of the TBT Agreement and Article III:4 of the 
GATT 1994. Canada and Mexico also request that the Panel 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. 
                                               
7 European Union's third-party submission, 2 December 2013, section II.8. 
8 WT/DS384/26 and WT/DS386/25. 
9 Panel Reports, US – COOL , para. 7.64. See also WT/DS384/26 and WT/DS386/25. WT/DS384/RW • WT/DS386/RW 
 
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  3.2.  The United States requests that the claims made by Canada and Mexico be rejected in their 
entirety and that the complainants' claims under  Article XXIII:(1)(b) of the GATT 1994 be found to 
be outside the terms of reference of this Panel. 
4  ARGUMENTS OF THE PARTIES 
4.1.  The arguments of the parties are reflected in  their executive summaries provided to the Panel 
in accordance with paragraph 18 of the Panel Working Procedures.10 
5  ARGUMENTS OF THE THIRD PARTIES 
5.1.  The arguments of the third parties are reflec ted in their executive summaries provided to the 
Panel in accordance with paragraph 18 of the Panel Working Procedures.11 Australia and 
Guatemala did not submit written or oral statements to the Panel. 
6  INTERIM REVIEW 
6.1.  On 27 June 2014, the Panel submitted its Interim Reports to the parties. On 8 July 2014, 
Canada, Mexico, and the United States each submitted written requests for the review of precise aspects of the Interim Reports pursuant to Article 15.2 of the DSU.
12 On 15 July 2014, Canada, 
Mexico, and the United States submitted written comments on each other's requests for interim 
review. No party requested an additional meeting with the Panel on the issues identified in the written comments. 
6.2.  In accordance with Article 15.3 of the DSU, this section of the Panel Reports sets out the 
Panel's response to the requests and comments made at the interim review stage. The Panel modified aspects of its Reports in light of the parties' interim review requests and comments where it considered it appropriate to do so, as expl ained below. Section and paragraph numbers are the 
same in the Interim and Final Reports. References to footnotes in this section relate to the Interim 
Reports, except as otherwise indicated. 
6.3.  In addition to the modifications specified below, the Panel also corrected a number of 
typographical and other non-substantive errors throughout the Reports, including those specified 
by the parties. 
6.4.  In issuing its Interim Reports on 27 June 2014, the Panel requested the parties to identify 
any business confidential information which the Interim Reports or its annexes may contain, and 
which the parties wish to be redacted from the Final Reports. The parties did not identify any such information in their requests for interim review. In accordance with its additional procedures to protect BCI, on 29 July 2014 the Panel further requested the parties to confirm that the 
Final Reports and its annexes do not contain any BCI. 
6.5.  In its aforementioned communication to the parties dated 27 June 2014, the Panel also noted 
that it had received unsolicited follow-up comments by the parties on comments on the draft 
descriptive part of the Panel Reports sent to the parties on 10 April 2014.
13 The Panel invited each 
party to indicate in its requests for interim review whether its unsolicited comments on the draft 
descriptive part of the Reports should be considered by the Panel as interim review comments. In response, Canada noted that since the descriptive part had become part of the Interim Reports, 
Canada sees no reason for the Panel to consider the unsolicited follow-up communications as part 
of the interim review. Mexico did not object to the unsolicited follow-up comments on the descriptive part not being incorporated in the in terim review. At the same time, Mexico suggested 
                                               
10 See executive summaries of the parties' arguments, Annexes B1-B3. 
11 See executive summaries of the third parties' arguments, Annexes C1-C8. 
12 The Panel notes that, despite the 5.00 p.m. (Geneva time) deadline on 8 June 2014 for parties' 
interim review requests, the United States submitted the electronic copy of its interim review request at 6.53 p.m. on 8 June, and the hard copy vers ion at 10.10 a.m. the following day. 
13 In particular, on 24 April 2014 Canada and Mexico submitted unsolicited follow-up comments on the 
United States' comments of 23 April 2014. The United St ates responded to these with unsolicited follow-up 
comments on 12 May 2014. Finally, on 14 May 2014 Mexi co submitted additional unsolicited comments. 
Most of these comments concerned the elements of the measure at issue, in particular the COOL statute.  WT/DS384/RW • WT/DS386/RW 
 
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  that comments on the descriptive part be incorporated into the final report, provided that inclusion 
does not affect the date of the issuance of final report to the parties. The United States did not 
respond to the Panel's invitation. In light of the above, the Panel left the descriptive part of its Interim Reports unchanged, and did not incorporate the parties' unsolicited comments on the 
descriptive part into its interim review. 
6.6.  Canada suggested revising paragraph 7.18  to reflect that there are instances where the 
place of occurrence of a production step can be  omitted. The United States did not support 
Canada's requested insertion of the phrase "subject to certain flexibilities" and considered the 
Panel's statement to be accurate. In light of the parties' comments, the Panel added the word "generally" to paragraph 7.18 in reference to the amended COOL measure's point-of-production 
labelling. 
6.7.  Canada objected to the characterization of its position in footnote 52 (footnote 68 in the 
Final Reports) to paragraph 7.18  and contends that it did not concede the accuracy of 
reference to a "single label". Conversely, the United States asserted that the Panel did not 
mischaracterize Canada's position, and considered  the Panel to have correctly cited Canada's 
written submission. In light of the parties' comments, the Panel adjusted the latter part of footnote 52 (footnote 68 in the Final Reports) to paragraph 7.18 regarding Canada's position as to 
the establishment of a "single label". 
6.8.  Canada pointed out that the description in paragraph 7.28  of the definition of "retailer" 
under the Perishable Agricultural Commodities Act of 1930 omitted the exclusion of entities that do 
not ship, receive, or contract to be shipped or receive perishable agricultural commodities in 
quantities exceeding 2,000 pounds (one ton) in a single day. The Panel supplemented footnote 72 
(footnote 88 in the Final Reports) to paragraph 7.28 with respect to the definition of "retailer" under PACA. 
6.9.  The United States requested that the Panel delete the references to "commingled covered 
commodities" from paragraphs 7.33 and 7.34  and from footnotes 85, 90, and 257 
(footnotes 101, 206, and 275 in the Final Reports) . According to the United States, the 
commingling flexibility for meat was set forth in § 65.300(e) of the 2009 Final Rule, whereas 
§ 65.300(g) of the 2009 Final Rule "define[s]" the term "commingled covered commodities" only in regard to "perishable agricultural commodities", which exclude meat products. Canada objected to 
the United States' request. According to Canada, instead of a definition of any kind, § 65.300(g) 
sets out labelling rules; the term "commingled covered commodities" is defined in § 65.125. 
6.10.  The Panel declines the United States' reques t. The Panel notes that § 65.300(g) of the 2009 
Final Rule does not define the term "commingled covered commodities". As noted in footnote 85 
(footnote 101 in the Final Reports) to paragrap h 7.33, that term is defined in the unamended 
§ 65.125 of the 2009 Final Rule without any dist inction between different types of "covered 
commodities" as follows: "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." 
In turn, §§ 65.300(e) and (g) set forth different labelling rules for commingled meat products and commingled perishable agricultural commodities. In addition, in introducing the term "commingled covered commodities", paragraph 7.33 explains  that the amended COOL measure "defin[es] 
'covered commodities'  in relevant part  as '[m]uscle cuts of beef and pork' and '[g]round beef … 
and ground pork'." (emphasis added) As indicated in section 7.3.2.1, the Panel's review of the amended COOL measure is limited to the products at issue identified in paragraphs 2.2 and 7.26 of 
the Reports. 
6.11.  The United States commented that in s ections 7.3.3.3 (paragraphs 7.38-7.43) and 
7.3.4 (paragraph 7.44 and Table 2), as well as paragraph 7.108  the Panel "appear[s] to 
conclude that in the improbable case where an animal is imported for immediate slaughter after 
spending time in two different countries, the 2013 Final Rule would not allow similar flexibility in 
listing the country of raising as is the case under the B Label." The United States requested alteration in light of its arguments provided in response to the Panel's questions. Canada 
commented that the issue raised by the United States is addressed in paragraphs 7.245-7.254 and 
that the alteration of these sections proposed by the United States is thus unwarranted. Canada further stated that paragraph 7.108 simply summarizes the rules under the amended COOL 
measure that apply to Category C muscle cuts, and that there is no need to modify the paragraph 
as suggested by the United States.  WT/DS384/RW • WT/DS386/RW 
 
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  6.12.  The Panel declines the United States' request. Section 7.3.3.3 describes the amended 
multiple countries of raising flexibility under the amended COOL measure. Section 7.3.4 simply sets out label variations in light of the flexibilities under the original and amended COOL measures. The specific point raised by the United States regarding Label C is discussed in 
paragraphs 7.107-7.110, 7.245-7.254, and again in 7.351. In these paragraphs, the Panel outlines 
the parties' disagreement as well as the relevant provisions of the COOL statute and 2013 Final Rule. Further, the Panel examines the parties' competing interpretations, including their arguments 
provided in response to the Panel's questions, and the labelling implications for both scenarios as 
depicted in Tables 9 and 14. As the United States' position is already reflected in these paragraphs, no further changes were considered necessary. 
6.13.  Canada suggested that the description of Label B in paragraph 7.42  reflect the country 
order flexibility that existed under the 2009 Final Rule. In this respect, the United States 
suggested replacing the word "would" with "could". The Panel adjusted the relevant portion of paragraph 7.42 in light of the parties' comments. 
6.14.  In regard to paragraph 7.117  and Table 10 , Canada argued that non-commingled muscle 
cuts derived from Category C animals were not eligible for Label B ("Product of the United States, Canada") under the 2009 Final Rule. Conversely, the United States argued that the Reports 
already address Canada's request in paragraph 7.114 and footnote 268 (footnote 284 in the 
Final Reports). Although the Reports address Cana da's request in footnote 268 (footnote 284 in 
the Final Reports) to paragraph 7.114, for greater accuracy the Panel deleted the word "or" and "Product of U.S., Canada" from both paragraph 7.117 and Table 10. The Panel also made 
consequential adjustments to footnote 269 (footnote 285 in the Final Reports) and to the Note to 
Table 10. 
6.15.  Canada argued that the statement that "many operators in the United States commingled" 
in the second sentence of paragraph 7.121  s h o u l d  n o t  b e  a t t r i b u t e d  t o  C a n a d a  a s  i t  w a s  n o t  
supported by the relevant reference in footnote 271. The United States considers that the Panel did not mischaracterise Canada's position on commingling. In light of the passages referenced in 
footnote 271, the Panel split the second sentence of paragraph 7.121 into two sentences. 
In addition, the Panel adjusted the final sentence of the same paragraph accordingly. 
6.16.  Canada requested that the word "survey" in paragraph 7.124  be replaced with a less 
comprehensive term for referencing the public cons ultation process conducted by the USDA before 
adopting the 2013 Final Rule. The United States also considered the word "survey" to be 
inaccurate, and suggested replacing "survey conducted by the USDA" with "responses received to the proposed rule". The Panel has replaced the word "survey" with "comments the USDA received 
on the proposed 2013 Final Rule" in paragraph 7.124. 
6.17.  Additionally, the United States requested that a sentence in paragraph 7.124  referencing 
the American Meat Institute's comments on the proposed 2013 Final Rule be relegated to a 
footnote and adjusted so as to avoid the suggestion  that evidence on slaughter facilities processing 
"mixed-origin" livestock demonstrates commingling. According to the United States, these slaughterhouses could have processed B or C category animals without commingling. Conversely, Mexico noted that the American Meat Institute's comments use the term "mixed-origin" to refer to 
animals born in different countries and processed in the United States. Canada also objected to the 
United States' request. 
6.18.  The Panel declines the United States' request. The American Meat Institute's comments of 
April 2013 include a section entitled "The Meat Industry Utilizes the Current Rule's Practice of 
Commingling and Prohibiting that Practice Will Impose Significant Costs not Considered by AMS". Within this section, the comments state that "AMS seems to ignore the fact that commingling 
occurs regularly and that the Category B label is used in the marketplace."
14 The rest of the 
section attempts to quantify commingling and the impact of its elimination under the proposed 2013 Final Rule. In this context, immediately after the sentence stating that "[t]here are at least 
15 large cattle slaughter plants that process mixed origin livestock and at least 6 such hog 
                                               
14 Exhibit CDA-23, p. 3. WT/DS384/RW • WT/DS386/RW 
 
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  slaughter facilities", the comments address the economic impact of "the loss of commingling" 
under the proposed 2013 Final Rule.15 
6.19.  The United States suggested adjusting paragraph 7.125  to reflect more accurately its 
arguments on the percentages of commingling in th e US meat industry as presented by the USDA 
in the 2013 Final Rule. In particular, the United States suggested inserting a sentence on how the 
USDA came to its estimates. Mexico objected to this suggested new sentence, arguing that the United States has not explained why it is necessary or appropriate. 
6.20.  The Panel notes that the new sentence suggested by the United States is similar to the 
sentence in a paragraph of the United States' first written submission already referenced in 
footnote 288 (footnote 304 in the Final Reports) to paragraph 7.125. Accordingly, the Panel declines the United States' suggestion to insert this sentence. As for the existing first sentence of 
the paragraph, the Panel made editorial changes in  light of the United States' suggestions, while 
leaving footnote 288 (footnote 304 in the Final Reports) unchanged. 
6.21.  With regard to paragraphs 7.128-7.132  and Table 12 , Canada did not agree that, in 
practice, the 2013 Final Rule amended the coverage of Label D. In particular, Canada contends 
that the origin of Category D meat products under the 2009 Final Rule was determined based on the country of slaughter. Thus, according to Canada, "in practice, under the 2009 Final Rule, 
covered muscle [cut] commodities imported from Canada and derived from animals that 
underwent production steps in the United States were required to be labelled as 'Product of Canada'." Canada further contends that the United States undertook no extraterritorial verification of the life histories of animals used to produce imported muscle cut covered commodities, and that 
Canada does not maintain records that would allow retailers to demonstrate that an imported 
muscle cut commodity was derived from an animal th at underwent a production step in the United 
States. Referring to Table 12, Canada thus asserts that, in practice, "Label D applied in scenarios 
D2, D3, and D4 under the original COOL measure." The United States commented that, as the 
2009 Final Rule was written, Category D meat imported into the United States would be derived from animals that were not born, raised, or sl aughtered in the United States. However, under 
customs rules, Category D meat would receive a country of origin designation from the country 
where the meat was slaughtered (substantially transformed). 
6.22.  The Panel declines to make any modifications to paragraphs 7.128-7.132 and Table 12. 
Canada's comments concern whether the 2013 Final Rule amended the coverage of Label D "in 
practice". As noted in the Panel's findings in paragraph 7.15, Category D origin is designated 
according to substantial transformation under both the 2009 and 2013 Final Rules. The amended 
terms of coverage introduced by the 2013 Final Rule are set out in paragraphs 7.15 and 7.128.
16 
The evidence of the practical likelihood of Scen arios D2, D3, and D4 in Table 12 is addressed in 
paragraph 7.279. Although Canada's comments concern Label D coverage "in practice" under the original and amended COOL measures, Canada  does not dispute the textual amendments 
introduced by the 2013 Final Rule. Nor does Ca nada address the absence of evidence that 
Scenarios D2, D3, or D4 ever occurred "in practice" under the original COOL measure. Canada's allegation that such origin scenarios would not have been detectable, or distinguishable from Scenario D1, would only be relevant if such scenarios were shown to occur. Even if this allegation 
were to be substantiated by evidence regarding the treatment of imported muscle cuts "in 
practice", the explicit terms of the original an d of the amended COOL measures should not be 
ignored. As the Reports reflected the relevant de jure  and de facto  considerations with respect to 
Label D under the original and amended COOL me asures, the Panel did not consider any changes 
to be necessary. 
6.23.  The United States suggested that paragraph 7.135  also address the evidence submitted 
by the United States on the lack of a material impact from the 2013 Final Rule on large processors, 
such as Tyson Foods. The complainants objected to the United States' request. Canada argued 
that the evidence shows one company's slight incr ease in beef sales over a three-year period, 
measured in value, which has no direct relevance for the impact of the 2013 Final Rule. 
Both complainants noted that the evidence in question relates to Tyson Foods' annual reports for 
                                               
15 Exhibit CDA-23, p. 6. 
16 As observed by the Appellate Body, under the orig inal COOL measure, "Category D meat derives from 
animals not born, raised, or slaughte red in the United States."  Appellate Body Reports, US – COOL , para. 333. WT/DS384/RW • WT/DS386/RW 
 
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  the fiscal years ending in October 2011, Septem ber 2012, and September 2013, the last of which 
ended in September 2013, two months before the end of the six-month adjustment period under the 2013 Final Rule. Canada added that other exhibi ts cited in the Reports containing statements 
from Tyson Foods address more directly the impact of the 2013 Final Rule. 
6.24.  The Panel considers that other exhibits referenced in the Reports, including in paragraph 
7.135, in particular Exhibits CDA-25, CDA-42 (BCI), and CDA-70, more directly address the amended COOL measure's impact on the operations  of Tyson Foods than the evidence referenced 
by the United States. In fact, these exhibits di rectly reflect Tyson Foods' views about the 2013 
Final Rule before its adoption, and how Tyson Foods changed its sourcing policy following the 2013 Final Rule's entry into force. Accordingly, the Panel declines the United States' request and leaves paragraph 7.135 unchanged. 
6.25.  The United States requested supplementing the findings in sections 7.5.4.1.2.4 
(paragraphs 7.138-7.150) and 7.5. 4.2.4.1 (paragraphs 7.220-7.221)  to include certain 
arguments made in its written submissions. Canada considered that the United States' arguments 
regarding the impact of the amended COOL measur e on recordkeeping requirements were already 
addressed in the Panel's assessment. 
6.26.  The Panel declines the United States' request. Section 7.5.4.1.2.4 outlines the correlation 
between the nature of the origin claim and th e recordkeeping requirements under the amended 
COOL measure. This covers the substance of the arguments referred to by the United States in its comments, including its reference to the Appellate Body's reasoning in the original dispute. In particular, relevant Appellate Body statements are reproduced in paragraph 7.142 and further 
addressed in footnote 324 (footnote 340 in the Fina l Reports). Therefore, the alterations requested 
by the United States were not considered necessary. 
6.27.  The United States considered the Panel's reference in paragraphs 7.146-7.149  to 
"'augmentation of the records' to apparently me an the inclusion of 'additional information to a 
firm's bills of lading, invoices, or other records associated with movement of covered commodities 
from purchase to sale'." (quoting the 2009 Final Rule, p. 2699). With regard to the conclusion in 
paragraph 7.149 , the United States submitted that it "does not see the logic in equating adding 
[sic] additional information to a bill of lading to the increase in a recordkeeping 'burden'". Canada commented that the Panel's conclusion is supported by an analysis that considers a broad range of factors extending beyond the impact of additional  information added to bills of lading. Likewise, 
Mexico commented that the finding is not based exclusively on information requirements for bills 
of lading, and that the Panel cites other evidence in support of the conclusion in paragraph 7.149. 
6.28.  The Panel declines the United States' request. The only reference to additional information 
on a firm's bills of lading is found in footnote 338 (footnote 354 in the Final Reports) as part of a 
long passage cited from the USDA that eviden ces the dynamic between greater information on 
labels and more upstream records. The conclu sion in paragraph 7.149 draws heavily upon 
preceding paragraphs and the Panel's findings with respect to greater label variety and segregation 
under the amended COOL measure. 
6.29.  The United States commented that paragraph 7.148  contained a "partial quotation" from 
the 2009 Final Rule that "may misleadingly exaggera te the role of segregation as a cost driver", 
and suggested additions of the complete quotation. Canada commented that the major cost 
drivers are noted as including  segregation when firms are not using a multiple-origin label. Canada 
therefore considered that there was no need to include the additions to the excerpt from the 2009 
Final Rule set out in this paragraph. Mexico considered that the proposed expansion of the 
quotation would make the paragraph as a whole confusing, and that the United States' concern could be addressed by adding the words " inter alia ". WT/DS384/RW • WT/DS386/RW 
 
- 26 - 
 
  6.30.  The Panel cited the USDA's reference to "the major cost drivers" of the 2009 Final Rule as 
"including" scenarios of segregation without commingling. The Panel did not consider this citation to distort the USDA's statement, which is cited in combination with another statement made by the USDA to a similar effect in footnote 340 (footnote 356 in the Final Reports). In light of the parties' 
comments, the Panel added " inter alia " to paragraph 7.148 and "or products" in footnote 340 
(footnote 356 in the Final Reports). 
6.31.  The United States requested revision of paragraph 7.149  to include its argument that 
recordkeeping has not changed and that "the amended COOL measure simply implements the 
Appellate Body recommendations that the information already maintained by upstream producers, be conveyed to consumers through more detailed labelling." Canada commented that this paragraph summarizes the Panel's conclusions after assessing the arguments of the parties and 
the evidence before it. In Canada's view, the repe tition of US arguments is inappropriate in this 
context. Mexico similarly considered that the United States' arguments are already reflected, and that its request is improper for interim review as it would alter the Panel's findings by 
incorporating the United States' arguments into the Panel's conclusions. 
6.32.  The Panel declines the United States' request. Paragraph 7.149 summarizes the 
Panel's conclusions with respect to the recordke eping burden under the amended COOL measure. 
The United States' arguments are reflected in the preceding paragraphs, and relevant Appellate 
Body statements are discussed in paragraph 7.142  and footnote 324 (footnote 340 in the Final 
Reports). Inasmuch as the United States is reasserting that the recordkeeping provisions under the original and amended COOL measures are form ally identical, paragraphs 7.138-7.139 explain 
that the Panel's analysis focuses on whether in practice  the amended COOL measure requires 
greater recordkeeping under formally unchanged provisions. The Appellate Body has held that Article 21.5 compliance panels may properly address "claims against measures taken to comply 
that incorporate unchanged aspects of original measures"
17 as well as "new claims against 
inseparable aspects of a measure taken to comply, which are unchanged from the original measure".
18 Further, the Appellate Body has indica ted that, in the context of Article 21.5 
proceedings, formally identical "wording" does not necessarily amount to challenged provisions 
having identical "meaning"; rather, this latter may depend on the interaction of different aspects of 
the measure under review.19 
6.33.  The United States suggested replacing the word "confirm" in the first sentence of 
paragraph 7.162  with "assert in affidavits, but do not substantiate with specific evidence". 
The complainants objected to the United States' request. Mexico argued that the United States' is attempting to undermine the status of the eviden ce cited by the Panel. Canada pointed out that 
two pieces of evidence cited in the first sentence of paragraph 7.162 should not be qualified as 
affidavits as they are industry comments submitted to the USDA in its public comment exercise on 
the proposed 2013 Final Rule. 
6.34.  The Panel notes that in essence the firs t sentence of paragraph 7.162 consists of two 
citations from comments submitted by an industry participant to the USDA in its comments to the 
proposed 2013 Final Rule. The footnote to the second citation also references comments from another industry participant to the USDA as well as affidavits by Mexican industry participants. 
Like the original panel, the Panel in this comp liance dispute considers affidavits by industry 
participants as evidence that may be relied upon to reach or confirm findings. Accordingly, the Panel declines the United States' request and leaves the first sentence of paragraph 7.162 
unchanged. 
                                               
17 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 427. 
18 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 433. 
19 More specifically, in US – Shrimp (Article 21.5 – Malaysia) , the Appellate Body noted that "the 
wording of Section 609 ha[d] not been changed since the fi rst case" and went on to state that "[i]n addition, 
the meaning of Section 609 ha[d] not been changed" in light of a court ruling addressing other aspects of the challenged measure. A ppellate Body Report, US – Shrimp (Article 21.5 – Malaysia), para. 93. The altered 
meaning of formally identical provisions is consistent with the Appellate Body's consideration that "the relevant facts bearing upon the 'measure taken to comply' may be different from the relevant facts relating to the 
measure at issue in the original proceedings", and that "[i]t is natural, therefore, that the claims, arguments 
and factual circumstances which are pertinent to the 'measure taken to comply' will not, necessarily, be the same as those which were pertinent in the original dispute." Appellate Body Report, Canada – Aircraft 
(Article 21.5 – Brazil) , para. 41.  WT/DS384/RW • WT/DS386/RW 
 
- 27 - 
 
  6.35.  Canada pointed out that the section in the original US – COOL  panel reports referenced in 
footnote 378 (footnote 394 in the Fi nal Reports) to paragraph 7.166  focuses more on the 
incentives arising from the measure than on the legal necessity of making a choice. The Panel has left paragraph 7.166 unchanged. The relevant paragraphs of the original US – COOL panel 
reports
20 referenced in footnote 378 (footnote 394 in the Final Reports), while also addressing the 
issue of incentives, are entitled "[t]he legal necessity of making a choice" and specifically examine Appellate Body guidance related to this issue. 
6.36.  The United States requested the Panel to adjust paragraph 7.184  to reflect more 
accurately the objective of the Updated Sumner Econometric Study. The Panel has adjusted paragraph 7.184 concerning the objective of the Updated Sumner Econometric Study. At the same time, the Panel declines the United States' sugges ted addition to the last sentence of the same 
paragraph concerning how the Panel evaluates the possible impact of the different factors that 
may explain the evolution of livestock's price basis and import ratio. 
6.37.  Mexico requested additional references to its submissions in footnote 454 (footnote 470 
in the Final Reports) to paragraph 7.200 . The Panel included additional references in footnote 
454 (footnote 470 in the Final Reports)  to paragraph 7.200 to Mexico's submissions. 
6.38.  With respect to footnote 467 (footnote 483 in the Final Reports) to 
paragraph 7.203 , Mexico recalled its arguments as to the distinction between three different 
concepts, namely "detrimental impact", "relevant regulatory distinction(s)", and "facts and circumstances related to the design and application of the relevant regulatory distinction(s)". The Panel supplemented footnote 467 (footnote 483 in the Final Reports) to paragraph 7.203 in light of 
Mexico's request. 
6.39.  According to Mexico, paragraphs 7.206-7.207 and 7.280  did not fully reflect Mexico's 
argument regarding Label E. The United States countered that these paragraphs are focused on 
expressing the Panel's findings rather than summa rizing the parties' arguments. The Panel revised 
footnote 474 (footnote 490 in the Final Reports)  to paragraph 7.206 in light of the parties' 
comments to reproduce the complainants' arguments in greater detail. No further changes were 
considered necessary. 
6.40.  The United States requested supplementation of paragraph 7.229  to reflect its arguments 
that Label D "is typically, if not always, prod uced entirely within the exporting country and 
including additional steps within the label would not provide additional origin information". Canada 
commented that this paragraph sets out certain facts as well as the intended effect of the 
amended COOL measure. Canada added that the arguments of the parties regarding Label D are 
addressed elsewhere in the Reports. Mexico commented that the United States' proposed additions 
inaccurately describe its own argument on the reasons for not requiring point-of-production 
information on Label D. Mexico also questioned the United States' substantiation of its argument and considered the statement in paragraph 7.229 to  be fully accurate. The Panel added a citation 
into footnote 521 (footnote 537 in the Final Reports) to paragraph 7.229 to cross-reference 
paragraph 7.279, and inserted additional reference into footnote 611 (footnote 629 in the Final Reports) to paragraph 7.279 to the United States' arguments. 
6.41.  The United States requested that paragraph 7.240  reflect its position "regarding the 
potential that animals imported for immediate slaughter may become B label" that "such a 
situation is economically unrealistic". Canada commented that the United States' position that the situation referred to is "economically unrealistic" is without merit. Canada referred to evidence that 
some Canadian livestock exporters are sending slaughter-weight animals to the United States for 
short periods of feeding so that the animals qual ify for the Category B production stream. Mexico 
commented that the United States' proposed addition would affect the coherence of the paragraph, 
and took issue with the content of the United Stat es' proposal as seeking to have the Panel adopt 
the United States' argument as its own. 
6.42.  In light of the parties' comments, the Pane l declines to make the changes requested by the 
United States. Paragraph 7.240 sets out the relevant requirements of the amended COOL measure 
in the context of the complainants' contentions regarding the flexibility for multiple countries of 
                                               
20 Panel Reports, US – COOL , paras. 7.386-7.392. WT/DS384/RW • WT/DS386/RW 
 
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  raising. Immediately following this, the Panel describes in paragraph 7.241 the evidence and 
arguments submitted by the parties regarding the ac tual amount of time imported feeder and fed 
cattle spend in the United States, which includes reference to the evidence mentioned by Canada in its interim review comments. 
6.43.  With respect to the average figures in paragraph 7.242 , Canada pointed out that feeder 
cattle imported into the United States can spend more than 68% of their lives outside the United States. The Panel revised paragraph 7.242 by removing the phrase "as much as" and by inserting 
a footnote to explain that feeder cattle may sp end an even greater amount of time outside the 
United States. 
6.44.  Mexico requested the Panel to add a paragraph to its analysis in paragraphs 7.255-7.256  
of the appearance and placement of labels in th e context of legitimate regulatory distinctions. 
Mexico suggested that this new concluding paragraph should reflect Mexico's arguments that no 
retailers complied with the 2013 Final Rule during  the six-month adjustment period following the 
Final Rule's entry into force in May 2013, and that some retailers still do not comply with it at this 
stage. Mexico suggested that this new paragraph co nclude that "[t]he labels of those retailers do 
not provide any point of production information." Likewise, Mexico requested an adjustment to the 
Panel's analysis in paragraph 7.354  concerning the amended COOL measure's degree of 
contribution. The United States objected to Mexico's request to insert a new paragraph on an issue 
the United States considered "unrelated" to paragraphs 7.255-7.256. The United States also suggested leaving paragraph 7.354 unchanged becaus e Mexico's proposed sentence concerns the 
distinct issue of the amended COOL measure's enforcement. 
6.45.  The Panel notes that paragraph 7.8 addre ssed the entry into force of the 2013 Final Rule. 
Footnote 25 (footnote 41 in the Final Reports) to the same paragraph explains that the six-month adjustment period for the livestock and meat industry expired in November 2013. Nonetheless, for 
the sake of completeness, the Panel has inserted a footnote at the end of paragraph 7.256 
addressing Mexico's evidence of labels following the end of the six-month adjustment period. In light of this, the Panel did not consider it ne cessary to adjust paragraph 7.354 and draw any 
conclusion from the unspecified prevalence of non-compliance with the 2013 Final Rule following 
the expiration of the six-month adjustment period. 
6.46.  Mexico commented with respect to paragraph 7.258  that it had identified alternative 
sources of information for determining the share of beef products subject to the amended COOL 
measure. The Panel supplemented footnote 574 (footnote 592 in the Final Reports) to 
paragraph 7.258 to reflect Mexico's alternative sources regarding the share of beef products subject to the amended COOL measure. 
6.47.  Canada commented on the figures in footnote 579 (footnote 597 in the Final Reports) 
to paragraph 7.260  that the original panel did not make findings to suggest that the percentages 
listed in this footnote were established facts. Conversely, the United States considered that the 
footnote accurately reflects what is already on the record from the original panel proceedings. 
The Panel modified footnote 579 (footnote 597 in the Final Reports) to paragraph 7.260 in light of the parties' comments to cite the original panel reports in greater detail. 
6.48.  Canada and Mexico commented that the percentages referred to in paragraph 7.273  
include all beef that is consumed in the United States, and not just muscle cuts. Likewise, the 
United States supported revising the paragraph to refer to all "beef consumed in the United States". The Panel adjusted paragraph 7.273 in light of the parties' comments. 
6.49.  Mexico argued that paragraph 7.298  does not fully reflect Mexico's arguments, in 
particular Mexico's arguments in paragraphs 165-178 of its first written submission and in paragraphs 95-109 of its second written submission, on why the amended COOL measure falls into 
an exceptional situation where a comparative analys is of alternative measures would be redundant 
for finding a violation of Article 2.2 of the TBT Ag reement. In addition, Mexico suggested adjusting 
footnote 628 (footnote 646 in the Fi nal Reports) to paragraph 7.290  to also reference 
paragraph 179 of Mexico's first written submission and paragraph 94 of Mexico's second written 
submission. The United States objected to Mexico's requests, which – according to the 
United States – are merely re-stating Mexico's arguments already addressed by the Panel. WT/DS384/RW • WT/DS386/RW 
 
- 29 - 
 
  6.50.  The Panel declines Mexico's request concerning paragraph 7.298. Paragraphs 165-178 of 
Mexico's first written submission contain sections entitled "The Relative Importance of the Interests or Values Furthered by the Amended COOL Measure"; "The Degree of Contribution Made by the Amended COOL Measure to the Legitimate Objective"; "The Trade-Restrictiveness of the 
Amended COOL Measure"; "The Nature of the Risks at Issue and the Gravity of Consequences that 
would Arise from Non-fulfilment of the Object ive"; and "Weighing and Balancing of Relevant 
Factors Demonstrates that the Trade-Restrictiveness of the Amended COOL Measure is 
Unnecessary". In the latter section, Mexico argues that: 
[w]hen weighed and balanced in a holistic manner, it is clear from these factors that 
the trade-restrictiveness of the Amended C OOL Measure is disproportionate to the 
risks that non-fulfilment would create. The fact that the Amended COOL Measure 
might make some contribution to the objective does not outweigh the other relevant 
factors. Accordingly, the trade-restrictiveness of the Amended COOL Measure is unnecessary and it is inconsistent wi th Article 2.2 of the TBT Agreement.
21 
6.51.  This assertion by Mexico does not explain why the amended COOL measure falls into the 
exceptional situation where a comparative analysis of alternative measures would be redundant for finding a violation of Article 2.2 of the TBT Agreem ent. As regards the factors addressed by Mexico 
under the above-mentioned headers, the Panel addressed the relevance of each of these factors 
for its Article 2.2 analysis and analysed each relevant factor in turn elsewhere in its Reports. 
6.52.  Paragraphs 95-109 of Mexico's second written submission include sections carrying similar 
headers as the ones mentioned above. The key conclusion of these paragraphs
22 is almost 
identical to the one cited from Mexico's first written submission above.  
6.53.  As regards Mexico's request concerning footnote 628 (footnote 646 in the Final Reports), 
the Panel notes that paragraph 179 of Mexico's first written submission addresses how the 
comparative analysis should be conducted, not whether it is necessary in the case of the amended 
COOL measure. In turn, paragraph 94 of Mexico 's second written submission references the 
Appellate Body's analysis of the original  COOL measure's trade restrictiveness, and argues that a 
relational analysis of the amended COOL measure (including of the "relative importance" of the 
interests or values that it furthers) "will demonstrate" inconsistency with Article 2.2. As these arguments do not address why the amended COOL measure represents an exceptional situation, 
the Panel declines Mexico's request to adjust the footnote 628 (footnote 646 in the Final Reports) 
to paragraph 7.290. 
6.54.  Mexico argued that paragraph 7.318  should not refer to compliance with the 
DSB recommendations and rulings in the original dispute as the "primary" purpose of the 2013 
Final Rule. In light of Mexico's request, the Panel has replaced the word "primarily" with "in part". 
6.55.  Canada commented that the percentages of coverage in paragraph 7.347  exaggerate the 
degree to which the amended COOL measure fulfils its objectives because they include Labels D 
and E. Canada accordingly requested revising the figures to correspond to the coverage of 
Labels A-C. Mexico similarly requested revision of this paragraph to reflect the focus on Labels A-C. The United States requested modifications so that the percentages refer to overall US beef and pork consumption and adjustments to the wording of certain sentences. Canada did not 
object to the United States' requests to refer to overall US beef and pork consumption or to delete 
the words "muscle cuts" in this paragraph. Howe ver, Canada objected to the United States' 
requested revisions with respect to the degree of  contribution achieved by exempted products. 
Mexico similarly opposed the United States' requests for rephrasing certain findings in this 
paragraph. The United States opposed Canada's request to insert the statement that "Labels A-C cover, at most, between 16.3% and 24.5% of all beef consumed in the United States". Similarly, 
the United States did not support changes requested by Mexico regarding percentages for 
Labels A-D and additional language with such percentages in paragraph. 7.348. 
6.56.  In light of the parties' comments, the Panel revised paragraph 7.347 and inserted a new 
footnote explaining the beef and pork products re presented by these figures. The Panel notes that 
                                               
21 Mexico's first written submission, para. 178. 
22 Mexico's second written submission, para. 109. WT/DS384/RW • WT/DS386/RW 
 
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  the parties' data do not specify the proportion within Categories A-C that are labelled, as opposed 
to those that are exempted from coverage. Thus, although muscle cuts in Categories A-D comprise between 16.3% and 24.5% of US beef consumption,  the proportion of exempted beef products 
that are muscle cuts as opposed to ground beef cannot be precisely determined based on the data 
provided by the parties. See also paragraph 7.258 below. The Panel further notes that, given the 
United States' importation of beef muscle cuts in Category D, the share of US beef consumption of muscle cuts in Categories A-C would be lower than 24.5%.
 As a final note, these ranges hinge on a 
number of assumptions, including the share of US beef or pork consumption sold in retailers and in 
food service establishments, as well as the share of processed food sold at (i) exempted retailers, 
(ii) food service establishments, or (iii) retailers  subject to the amended COOL measure. Different 
values for these shares lead to different shares of beef or pork muscle cuts in relation to total US 
beef or pork consumption that are subject to the amended COOL measure. 
6.57.  Mexico requested additional references to paragraphs of its written submissions to be 
inserted into footnote 842 (footnote 861 in the Final Reports) to paragraph 7.373 . 
The Panel supplemented footnote 842 (footnote 861 in the Final Reports)  to paragraph 7.373 as 
requested by Mexico. 
6.58.  Canada argued that the Panel's analysis of the risks non-fulfilment would create in 
paragraphs 7.374-7.383 and 7.415-7.424  does not address Canada's arguments (i) that origin 
information is a "credence attribute"; and (ii) that there would be "no harm" from consumers not receiving information on production steps and hence "mak[ing] their purchasing decision on false food safety assumptions." 
6.59.  The Panel declines Canada's request. In paragraph 7.379, the Panel explained that 
reviewing the risks of non-fulfilment of the am ended COOL measure's objective under Article 2.2 
of the TBT Agreement does not require defining any precise relationship with the relative 
importance of the interests or values protected under Article XX of the GATT 1994. For its 
Article 2.2 analysis of the amended COOL meas ure, the Panel therefore reviewed the risks 
non-fulfilment of the amended COOL measure's obje ctive would create strictly from the viewpoint 
of the objective, i.e. providing consumer information on origin. The Panel continues to consider it 
unnecessary to address how this objective – or the consequences of its non-fulfilment –compares with other objectives or values such as food sa fety. As regards the specific issue of "credence 
attributes", the Panel notes that Canada references the USDA's analysis of possible credence 
attributes in connection with market failure arguments; at the same time, Canada also argues that 
"[t]he USDA has not explained what these 'latent attributes' might be, whether they actually exist 
or why they may be important to certain consumers."
23 In any event, the Panel does not review 
the risks non-fulfilment would create from a possible market failure perspective. As the Panel 
recalled in paragraph 7.421, "[t]here are … circ umstances in which Members may decide to adopt 
particular regulations even in the absence of a specific demand from their citizens, and may do so 
without in fact shaping consumer expectations through regulatory intervention." 
6.60.  In regard to paragraphs 7.415-7.424 , Canada argued that the Panel has an obligation to 
make a finding on the "gravity of the consequences" in the context of its analysis under Article 2.2. The United States was of the view that the Panel was very clear that, on the basis of the available 
evidence, it could not reach a conclusion on this matter. 
6.61.  In the paragraphs mentioned by Canada as well as the sections preceding these 
paragraphs, the Panel reviewed in detail the parties' evidence on the risks non-fulfilment would 
create. In light of this analysis, in paragraph 7.423 the Panel concluded that "based on th[is] 
evidence … [it] cannot ascertain the gravity of not fulfilling the amended COOL measure's objective." As explained by the Appellate Body, panels may not "make affirmative findings that 
lack a basis in the evidence contained in the panel record."
24 As a result, the Panel declines 
Canada's request. 
6.62.  Canada requested the Panel to delete from paragraph 7.469  the reference to the 
"Product of the U.S." label. The United States objected to Canada's request as Canada did not 
formally disagree with the Panel's formulation of the "Product of the U.S." label in response to 
                                               
23 See Canada's first written submission, paras. 145-146. 
24 Appellate Body Report, US – Carbon Steel , para. 142. WT/DS384/RW • WT/DS386/RW 
 
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  Panel question No. 51. Furthermore, according to the United States, to the extent Canada argues 
that the label under its first alternative measure would be identical to Label D, "Product of the U.S." is an appropriate formulation of Labels A-C under the first alternative measure. In light of Canada's request and the United States' comments, the Panel has adjusted the last sentence of 
paragraph 7.469. 
6.63.  The United States requested that paragraph 7.489  be deleted because the parties did not 
address how less origin information might reduce consumer confusion, and there is no evidence on 
the record on this matter. Conversely, Canada co nsidered that paragraph 7.489 should be kept as 
it sets out the Panel's reasoning similar to certain paragraphs in the Appellate Body Reports in the original US – COOL dispute. Mexico also objected to the United States' request, arguing that there 
is evidence on the record of labels that are difficult to understand. 
6.64.  The Panel considers paragraph 7.489 to be part of its reasoning on the first alternative 
measure's degree of contribution to the objective of providing consumer information on origin. The Panel has therefore maintained this paragraph. 
6.65.  In regard to paragraphs 7.491 and 7.503 , Canada requested that the Panel complete the 
analysis and determine that the first and second alternative measures, respectively, are reasonably available and less-trade restrictive th an the amended COOL measure. Mexico made a 
similar request in the context of paragraph 7.491  with regard to all four alternative measures. 
Specifically, in regard to the third and fourth alternative measures, Mexico requested the Panel to address the degree of contribution to the amended COOL measure's objective. The United States objected to the complainants' requests. The Unit ed States argued that the Panel addressed the 
first two alternative measures' degrees of contribu tion, and explained that the three factors of a 
comparative analysis are conjunctive. Further, according to the United States, the Panel found that the third and fourth alternative measures were not adequately identified to allow a meaningful 
Article 2.2 comparison. 
6.66.  The Panel declines the complainants' request. The Panel notes that the complainants' 
interim review requests and comments do not addr ess – let alone question – the Panel's analysis 
of the four alternative measures and its conclusion that the complainants did not make a 
prima facie case under Article 2.2 of the TBT Agreement for any of the four alternative measures. 
In particular, the complainants did not question the Panel's findings that the complainants had not persuasively demonstrated that the first two alternative measures achieve an equivalent degree of 
contribution as the amended COOL measure, specifically how increased coverage would 
compensate for less origin information provided on Labels A-C under these two alternatives. Likewise, the complainants did not call into question the Panel's findings that the complainants had 
not sufficiently explained how their third and fourth alternative measures would be implemented, 
and thus had not adequately identified these alternatives to allow a meaningful Article 2.2 comparative analysis. Finally, the complainants did not contest the conjunctive nature of the 
factors of an Article 2.2 comparative analysis, or the validity of the Appellate Body's reliance on 
the conjunctive nature of these factors in the original dispute
25 referenced by the Panel in 
paragraph 7.491. 
6.67.  Mexico requested the insertion of references into the footnotes to paragraph 7.515  to 
exhibits submitted by Mexico in connection with the NAIS and Interstate Livestock Traceability 
Rule. The United States commented that the Interstate Livestock Traceability Rule (Exhibit MEX-82) is already referenced in multiple footnotes. As for other exhibits referred to by 
Mexico (Exhibits MEX-83, MEX-84, and MEX-85), the United States commented that these are 
APHIS documents submitted by Mexico, but that Mexico has not explained why these documents (unlike the official regulation of the Interstate Livestock Traceability Final Rule) should be included. 
                                               
25 In the original dispute, the Appellate Body held that "in most cases" a comparative analysis under 
Article 2.2 "will involve a comparison of the trade-re strictiveness of, and the degree of achievement of the 
objective by, the measure at issue, with that of possible  alternative measures that may be reasonably available 
and that are less trade restrictive than the challenged measure, taking account of the risks non-fulfilment 
would create." Appellate Body Reports, US – COOL , para. 376 (original emphasis). WT/DS384/RW • WT/DS386/RW 
 
- 32 - 
 
  6.68.  As section 7.6.5.4 already provides references to the Interstate Livestock Traceability Rule 
as well as the parties' specific arguments on the third alternative measure, no further revisions to the footnotes to paragraph 7.515 were considered necessary. 
6.69.  Regarding paragraph 7.518 , Canada commented that its reference to Uruguay's trace-
back system concerned the second stage, rather th an the second pillar of the first stage, of a 
trace-back system. The United supported revision of this paragraph to reflect Canada's specific arguments. The Panel revised paragraph 7.518 in light of the parties' comments. 
6.70.  The United States requested review of section 7.7 (paragraphs 7.617-7.643)  in respect 
of the Panel's reliance on the Appellate Body's reports in EC – Seal Products . The United States 
noted that the circulation of those reports occurre d after the period for the parties to make their 
arguments and submit evidence had ended. The Un ited States referred to the Appellate Body's 
statement that "a Member's 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 treatment in Article III are qualified by the general exceptions provision of Article XX".
26 In addition, the 
United States pointed to the Appellate Body's stat ement as to the lack of "any concrete examples 
of a legitimate objective that could factor into an analysis under Article 2.1 of the TBT Agreement, but would not fall within the scope of Article XX of the GATT 1994".
27 According to the United 
States, the Panel's analysis "does not appear to take this further aspect of Article III:4, as found 
by the Appellate Body, into account". The United States opined that the Panel's analysis "would suggest 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. According to the Appellate Body's 
approach, then, there must be an Article XX ex ception that would be available for COOL." 
Asserting that "the current circumstances are extraordinary", the United States contended that "the parties were not able to shape their submissions" according to the Appellate Body's finding 
regarding a responding Member'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. The United States therefore requ ested the Panel to "address the availability of 
Article XX as an exception for Article III:4 with respect to COOL". In the view of the United States, 
the Panel's "existing analysis would support finding under Article XX", particularly in respect of reasonably available alternative measures. The United States considered that the Reports, "as currently structured, would appear at odds with [the] principle" that "a Member's right to regulate 
is not, in principle, different under Article 2.1 than under Article III:4". 
6.71.  Canada commented that "[t]he nature of the United States' request to the Panel is unclear". 
Canada noted that the United States had not in voked Article XX as a defence, and was instead 
asking the Panel to address "issues on the 'availability' of an unspecified Article XX defence". 
Canada pointed to the burden of proof associated with Article XX of the GATT 1994 and asserted that interim review is not an appropriate stage in panel proceedings for a party to make new 
arguments or submit new evidence. Further, Canada  disputed the suggestion that the findings of 
the Appellate Body in EC – Seal Products  were unforeseeable, arguing that these findings were in 
line with those in US – Clove Cigarettes  and simply upheld the panel's finding on the legal 
standard for claims under Article III:4 of the GA TT 1994. Canada also disputed the United States' 
suggestion that the Panel could "transpose findings under … the TBT Agreement to a hypothetical 
analysis under GATT Article XX". In Canada's view, the United States could have structured its defence in this case to anticipate the findings of the Appellate Body, and that in this case it simply 
chose not to raise a defence under Article XX of the GATT 1994. 
6.72.  Mexico similarly opposed the United States' request, noting that interim review is "not the 
stage for a complainant to seek a finding related to the general exceptions of the GATT 1994, 
particularly considering that this defence was not raised by the United States" in these 
proceedings. Mexico disagreed with the United States' view that the current circumstances are "extraordinary", and contended that the Appellate Body's findings in EC – Seal Products  were not 
unforeseeable. According to Mexico, the United Stat es' request is conditioned on the existence of a 
measure that is consistent with Article 2.1 of the TBT Agreement and inconsistent with Article III:4 
of the GATT 1994. Given the Panel's finding that th e amended COOL measure is inconsistent with 
                                               
26 Citing Appellat e Body Reports, EC – Seal Products , para. 5.122. 
27 Citing Appellat e Body Reports, EC – Seal Products , para. 5.128. WT/DS384/RW • WT/DS386/RW 
 
- 33 - 
 
  both Article 2.1 and Article III:4, Mexico argued that "the United States' request is based on a 
hypothetical set of circumstances that does not exist in this dispute". 
6.73.  The Panel notes that section 7.7 applie s the legal standard under Article III:4 of the 
GATT 1994 as recently clarified by the Appellate Body in EC – Seal Products . The Panel further 
notes that the United States' request is quite general. The United States does not advance or 
argue a defence under Article XX of the GATT 1994, nor does it identify any sub-paragraph of that Article as relevant to the present dispute. The United States merely requests that the Panel 
"address this aspect of the Article III:4/Article 2. 1 relationship and address the availability of 
Article XX as an exception with respect to COOL". 
6.74.  The United States' position appears to be predicated on a perceived conflict between, on the 
one hand, the Appellate Body's clarification of the relationship of national treatment under the 
GATT 1994 and the TBT Agreement and, on the othe r hand, the implications for a hypothetical 
measure found to be consistent with Article 2.1 of the TBT Agreement but in violation of Article III:4 of the GATT 1994. The Panel has 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.  Therefore, the Panel 
is not faced with the situation hypothetically  suggested by the United States. Under these 
circumstances, it is unclear how the assessment requested by the United States would be 
appropriate for securing a positive solution to the present dispute. 
6.75.  Moreover, accepting the United States' request at this stage would require examination of 
an issue for which neither the United States, nor the complainants, have provided specific evidence or argument. Indeed, at no point did the United States invoke Article XX of the 
GATT 1994 or any relevant sub-paragraph(s) thereof, or adduce arguments under Article XX at an 
appropriate stage of these proceedings. The Pane l therefore declines the United States' request 
with respect to section 7.7. 
6.76.  Mexico requested the insertion of an additional citation into footnote 1362 
(footnote 1380 in the Final Reports) to paragraph 7.648  to its written submission as to the 
treatment of the terms "conflict" and "violation" as equivalent. The Panel supplemented 
footnote 1362 (footnote 1380 in the Final Reports)  to paragraph 7.648 as requested by Mexico. 
7  FINDINGS 7.1  Claims 7.1.  Canada and Mexico claim that the amended COOL measure is inconsistent with the following 
four provisions of the covered Agreements: 
a. Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994  because it accords 
cattle and hogs imported from Canada and cattle imported from Mexico treatment less 
favourable than that accorded to US cattle and hogs; 
b. Article 2.2 of the TBT Agreement because it creates an unnecessary obstacle to 
international trade, as it is more trade restrictive than necessary to fulfil a legitimate 
objective, taking account of the risks non-fulfilment would create; and 
c. Article XXIII:1(b) of the GATT 1994  because it nullifies or impairs benefits to Canada and 
Mexico in respect of imports of cattle and, for Canada, also hogs to the US.
28 
7.2  Order of analysis 
7.2.  The parties do not suggest a particul ar order of analysis. With one exception29, their written 
submissions address the national treatment claims first (Article 2.1 of the TBT Agreement, then 
                                               
28 Canada's request for the establishment of a pane l, WT/DS384/26, pp. 2-3; Mexico's request for the 
establishment of a panel, WT/DS386/25, p. 3. 
29 Mexico's first written submission addresses its two TBT claims before its two claims under the 
GATT 1994. WT/DS384/RW • WT/DS386/RW 
 
- 34 - 
 
  Article III:4 of the GATT 1994), followed by Articl e 2.2 of the TBT Agreement, and conclude with 
the non-violation claim under Article XXIII:1(b) of the GATT 1994. 
7.3.  In general, "panels are free to structure the order of their analysis as they see fit"30 – unless, 
based on the "structure and logic"  of the provisions at issue, "there exists a mandatory sequence 
of analysis which, if not followed, would amount to an error of law" or affect the substance of the 
analysis itself.31 We do not consider, nor do the parties contend, that there is any such mandatory 
sequence of analysis in this compliance dispute. 
7.4.  The original panel noted that, given the principle of specificity, "if the [measure at issue] is a 
technical regulation, then the analysis under the TBT Agreement would precede any examination 
under the GATT 1994."32 Accordingly, the original panel – like other TBT panels33 – addressed the 
TBT claims before the GATT claims. 
7.5.  The original panel found that the original COOL measure was a "technical regulation" under 
the TBT Agreement.34 The parties agree35 that the COOL measure, in its amended form, continues 
to be a technical regulation. We agree with th e parties in this respect. As explained below36, 
the amended COOL measure meets the definition of  a technical regulation in the TBT Agreement.37 
7.6.  Accordingly, we follow the approach of the original panel38 and address the complainants' 
TBT claims before addressing their claims under Articles III:4 and XXIII:1(b) of the GATT 1994. 
Before turning to the complainants' legal claims , we provide an overview of the amended COOL 
measure and address the scope of this compliance dispute. 
7.3  The amended COOL measure 7.7.  The measures examined in the original dispute included the "COOL statute" (the Agricultural 
Marketing Act of 1946, as amended by the 2002 Fa rm Bill and the 2008 Farm Bill), and the 
regulatory provisions implementing the COOL statute in the 2009 Final Rule (AMS) (2009 Final Rule).
39 Other measures considered by the original panel have either expired or have 
been withdrawn, and are not at issue in these compliance proceedings.40 
7.8.  Following the original panel and appellate proceedings, the Agricultural Marketing Service 
(AMS) of the US Department of Agriculture (USDA) issued a final rule, effective 23 May 201341, 
                                               
30 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 126. 
31 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109. See also 
Appellate Body Report, Canada – Feed-In Tariff Program , para. 5.5; and Panel Reports, EC – Seal Products , 
para. 7.63. 
32 Panel Reports, EC – Sardines , paras. 7.15-7.16 (cited in Panel Reports, US – COOL , para. 7.73). 
33 Panel Reports, EC – Sardines ; US – Clove Cigarettes ; US – Tuna II (Mexico) ; and EC – Seal Products . 
34 Panel Reports, US – COOL , para. 7.216. In the appellate proceedings, it was not at issue whether the 
original COOL measure was a technical regulation. Appellate Body Reports, US – COOL , paras. 239 and 267. 
35 Canada's first written submission, para. 23; Me xico's first written submission, paras. 63-76; 
United States' first writ ten submission, para. 56. 
36 See section 7.5.2 below. 
37 Annex 1.1 of the TBT Agreement. 
38 See also Panel Reports, EC – Seal Products , paras. 7.61-7.70. 
39 Panel Reports, US – COOL , paras. 7.13-7.14. 
40 In addition to the COOL statute and 2009 Fi nal Rule, the original panel identified two 
Interim Final Rules (AMS and FSIS) and a letter from US Secretary of Agriculture Thomas J. Vilsack as falling 
within the scope of its terms of  reference. See Panel Reports, US – COOL , para. 7.21. The Interim Final Rules 
(AMS and FSIS) were found to have expired at the time of the original panel's establishment and the original 
panel made no findings or recommendations as  to these Interim Rules. See Panel Reports, US – COOL , 
paras. 7.22 and 7.33-7.34. As noted by the Appellat e Body, referring to a US DA letter to industry 
representatives, the United States pointed out that "the  Vilsack letter was 'withdrawn' on 5 April 2012", and "at 
the oral hearing Canada stated that it was no longer seeking specific rulings from the Appellate Body on this 
measure." Appellate Body Reports, US – COOL , para. 251. The Vilsack letter has not been challenged or raised 
in this compliance dispute. 
41 The 2013 Final Rule specifies that "[t]he effective date  of this regulation is May 23, 2013, and the rule 
is mandatory as of that date. … However, AMS understands  that it may not be feasible for all of the affected 
entities to achieve 100% compliance immediately and that some entities will need time to achieve full compliance with the amended provisions for 100% of muscle cut covered commodities. Therefore, during the 
six month period following the effect ive date of the regulation, AMS will conduct an industry education and 
 WT/DS384/RW • WT/DS386/RW 
 
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  "to make changes to the labelling provisions for muscle cut covered commodities and certain other 
modifications to the program".42 This rule (2013 Final Rule) is the only regulatory change identified 
by the parties as the United States' "measures taken to comply" with the DSB recommendations and rulings in the original dispute.
43 
7.9.  In these Reports, the COOL statute and the 2009 Final Rule in its unamended form will be 
jointly referred to as the "original COOL measur e". The COOL statute (which remains unchanged), 
and the 2009 Final Rule as amended by the 2013 Final Rule, will be jointly referred to as the 
"amended COOL measure".44 
7.3.1  Amended COOL Labels 7.3.1.1  Definition of origin 7.10.  The COOL statute defines the origin of mu scle cuts of meat as a function of the country 
(or countries) where the animal from which th ey derive is born, raised, and slaughtered.
45 Under 
the unamended provisions of the 2009 Final Rule, "rai sed" is defined as "the period of time from 
birth until slaughter or in the case of animals imported for immediate slaughter … the period of 
time from birth until date of entry into the United States".46 The term "slaughtered" is defined as 
"the point in which a livestock animal … is prepared into meat products (covered commodities) for human consumption".
47 "Born" is not explicitly defined for cattle and hogs in either the original or 
amended COOL measures.48 
7.11.  The 2009 Final Rule laid down origin labelling rules for meat based on the following five 
categories established by the COOL statute: 
a. Category A muscle cuts: United States country of origin; 
b. Category B muscle cuts: multiple countries of origin; 
c. Category C muscle cuts: import ed for immediate slaughter; 
d. Category D muscle cuts: foreign country of origin; and 
e. Category E: ground meat.49 
7.12.  As the COOL statute is unchanged, these broad statutory categories remain applicable 
under the amended COOL measure50 – subject to the more detailed requirements of the 
implementing rules discussed below. 
7.13.  Category A represents muscle cuts "[f]rom animals exclusively born, raised, and 
slaughtered in the United States".51 
                                                                                                                                               
outreach program concerning the provis ions and requirements of this rule ." 2013 Final Rule, p. 31369 
(emphasis added). 
42 See 2013 Final Rule, p. 31367. 
43 See Canada's first written submission, paras. 4 and 15-18; Mexico's first written submission, 
para. 10; and United States' first written submission, paras. 20-24. 
44 See Panel Reports, US – COOL , para. 7.13. 
45 See Appellate Body Reports, US – COOL , paras. 240 and 341. 
46 2009 Final Rule, § 65.235. 
47 2009 Final Rule, § 65.250. 
48 An unamended provision in the 2009 Final Rule only stipulates that "[ b]orn in the case of chicken 
means hatched from the egg". 2009 Final Rule, § 65.115. 
49 See COOL statute, § 1638a(a)(2)(A)-(E); Panel Reports, US – COOL , para. 7.89. 
50 According to the 2013 Final Rule, "[t]he [COOL] statute contemplates four different labeling 
categories for meat, based on where th e animal was born, raised, and/or slaughtered. This final rule preserves 
these four different labeling categories for meat and is co nsistent with labeling criteria set forth in the statutory 
scheme." 2013 Final Rule, p. 31370. 
51 2009 Final Rule, § 65.180. See also COOL statute, § 1638a(a)(2)(A). WT/DS384/RW • WT/DS386/RW 
 
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  7.14.  Categories B and C pertain to animals slaughtered in the United States but born and/or 
raised in other countries, with distinct labelling requirements for each under the original and amended COOL measures.
52 While both Categories B and C denote mixed-origin livestock53, 
Category C is specifically reserved for animals "imported into the United States for immediate 
slaughter".54 Unamended provisions of the 2009 Final Rule define the term "imported for 
immediate slaughter" as "consignment directly from  the port of entry to a recognized slaughtering 
establishment and slaughtered within 2 weeks from the date of entry".55 Thus, an animal imported 
into the United States more than two weeks prior to its US slaughter would not qualify as being 
"imported for immediate slaughter", and would fall into Category B. 
7.15.  Under the original COOL measure, Category D extended 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 ".56 The 2013 Final Rule amends this provision and now 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".57 However, under the 2013 Final Rule, 
Category D origin is still designated according to the definition used for customs purposes58, 
i.e. based on substantial transformation. For muscle cuts of meat, origin according to this 
definition is the country where the animal is slaughtered.59 
7.16.  With respect to Category E products (ground meat), unamended provisions of the 
2009 Final Rule refer to "all countries of origin contained therein or that may be reasonably 
contained therein", adding that "when a raw material from a specific origin is not in a processor's 
inventory for more than 60 days, that country shall no longer be included as a possible country of origin".
60 
7.3.1.2  Information on labels 
7.17.  The original COOL measure established labels for each of the above five categories, with 
various rules and flexibilities for the corresponding  Labels A, B, C, D, and E. The 2009 Final Rule 
provided that muscle cuts in Category A "may bear  a declaration that identifies the United States 
as the sole country of origin at retail".61 In such situation, Label A could state "Product of the 
United States" or some other variation pe rmitted under the original COOL measure.62 With respect 
to Label B, the 2009 Final Rule provided that "[f]or muscle cut covered commodities derived from 
                                               
52 See Table 1 below. 
53 As the Appellate Body held, "[b]oth Categories B and C involve meat of mixed origin, in the sense 
that they have more than on e country of origin. For each of these cate gories, at least one production step has 
taken place outside the United States, and at least one production step has taken place within the United States." See Appellate Body Reports, US – COOL , para. 244. 
54 In the COOL statute, Category B is under the he ading "multiple countries of origin" and applies to 
"meat that is derived from an animal that is – (I) not exclusively born, raised, and slaughtered in the 
United States; (II) born, raised, or slaughtered in the United States, and (III)  not imported into the 
United States for immediate slaughter" . Category C is confined exclusivel y to animals "imported for immediate 
slaughter". COOL statute, §§ 1638a(a)(2)(B) and (C). Bu t see also para. 7.17 regarding the more specific 
origin requirements for Category B animals under the 2009 Final Rule. 
55 2009 Final Rule, § 65.180. 
56 2009 Final Rule, § 65.300(f) (emphasis added). 
57 2013 Final Rule, § 65.300(f)(2) (emphasis added). 
58 2009 Final Rule, § 65.300(f) and 2013 Final Rule, § 65.300(f)(2). 
59 See Panel Reports, US – COOL , para. 7.674; and Appellate Body Reports, US – COOL , para. 241. 
The complainants explain that the United States applies a "substantial transformation" test and, for NAFTA countries, a test based on change in tariff classification to determine origin. According to the complainants, the result under both tests is to designate the place of slaughter as the country of origin. See Canada's first written submission, para. 18 and footnote 53; and Mexico's first written submission, para. 32 and footnote 30. 
60 2009 Final Rule, § 65.300(h). The USDA explained that "if a country of origin is utilized as a raw 
material source in the production of ground beef, it  must be listed on the label", subject to the 60-day 
"inventory allowance" for "when countries may no longer be listed". 2009 Final Rule, p. 2671. 
61 2009 Final Rule, § 65.300(d). See also COOL statute, § 1638a(a)(2)(A). 
62 2009 Final Rule, p. 31369. See also Panel Reports, US – COOL , para. 7.100 and §§ 65.400(a) ("[t]he 
declaration of the country of origin or a product may be in the form of a statement such as 'Product of USA, 
'Produce of the USA'") and 65.400(e) (describing acceptab le country abbreviations, including "U.S. or USA" for 
the "United States of America"). WT/DS384/RW • WT/DS386/RW 
 
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  animals that were born in Country X or (as applicable) Country Y, raised and slaughtered in the 
United States … the origin may be designated as Product of the United States, Country X, and (as applicable) Country Y".
63 In the case of Label C, when "an animal was imported into the 
United States for immediate slaughter as defined in § 65.180, the origin of the resulting meat 
products derived from that animal [had to] be designated as Product of Country X and the 
United States".64 As referenced above, Label D reflected the country of origin of imported muscle 
cuts "as declared to U.S. Customs and Border Pr otection", namely the country of slaughter based 
on the principle of substantial transformation.65 Finally, Label E required that ground meat 
products "shall list all countries of origin contained therein or that may be reasonably contained therein" based on the 60-day "inventory  allowance" under the 2009 Final Rule.
66 
7.18.  As a result of the 2013 Final Rule, the amended COOL measure imposes new labelling 
requirements for Labels A, B, and C.67 For muscle cuts from animals slaughtered in the 
United States, the amended COOL measure now generally requires Labels A, B, and C to indicate the place of occurrence of each production step (born, raised, and slaughtered).
68 
7.19.  With respect to Label D, which applies to  muscle cuts from non-US slaughtered animals, 
the 2013 Final Rule preserves the required origin label declaration of the original COOL measure, but adds a voluntary option to provide more information. Thus, Label D must continue to indicate 
the origin "as declared to U.S. Customs and Border  Protection at the time the products entered the 
United States, through retail sale (e.g., 'Product of Country X')".
69 In addition, Label D 
"may include more specific location information related to production steps (i.e., born, raised, and slaughtered) provided records to substantiate the claims are maintained".
70 
7.20.  The requirements of Label E for ground meat were not changed by the 2013 Final Rule.71 
Label E for ground meat products "shall [continue to] list all countries of origin contained therein or that may be reasonably contained therein" based on the 60-day "inventory allowance" under 
the 2009 Final Rule.
72 
7.21.  Table 1 below compares the origin definitions and examples of basic muscle cut labels under 
the 2009 and 2013 Final Rules. 
                                               
63 2009 Final Rule, § 65.300(e)(1). The COOL statute provides for Category B that retailers "may 
designate the country of origin of such covered commodit y as all of the countries in  which the animal may have 
been born, raised, or slaughtere d". COOL statute, § 1638a(a)(2)(B). 
64 2009 Final Rule, § 65.300(e)(3). The 2009 Final Rule also stipulates that the countries on Label B 
"may be listed in any order", as distinct from Label C which did not have  a similar flexibility. 
2009 Final Rule, § 65.300(e)(4) and p. 2659. See also Panel Reports, US – COOL , para. 7.697. 
65 2009 Final Rule, § 65.300(f). 
66 2009 Final Rule, § 65.300(h). 
67 2013 Final Rule, p. 31367; United States' first written submission, para. 25. 
68 See 2013 Final Rule, §§ 65.300(d) and (e), p. 31367. The United States and Mexico have stated that 
this is effectively a "single label" for these categories of meat. See United States' first written submission, para. 24; and Mexico's first written submission, para. 119. Canada contends that "[w]hether the labels are considered in the singular or the plural, it is the conten t of the labels and the incentives they create that are 
relevant." Canada's second written submission, para. 55. 
69 As the 2013 Final Rule points out, "[u]nder this final rule, these labeling requirements for imported 
muscle cut covered commodities remain unchanged." 2013 Final Rule, § 65.300(f)(2) and p. 31369. 
70 2013 Final Rule, § 65.300(f)(2). Note that the provisions for voluntarily providing such information 
previously applied to former Labels B and C. 2009 Final Rule, § 65.300(e)(4). 
71 See 2013 Final Rule, p. 31372; Canada's first written submission, para. 18; and Mexico's first written 
submission, para. 45. 
72 2009 Final Rule, § 65.300(h). WT/DS384/RW • WT/DS386/RW 
 
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  TABLE 1: DEFINITIONS OF ORIGIN AND BASIC LABELS FOR MUSCLE CUTS  2009 Final Rule 2013 Final Rule* LABEL A   
 
"United States country of or igin 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))  "The 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')." (65.300(d) (emphasis added))
 
LABEL B  
  
     
 
"For muscle cut covered commodities derived from animals that were born in Country X or (as applicable) 
Country Y, raised and slaugh tered 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 Produc t of the United States, 
Country X, and (as applicable) Country Y." (65.300(e)(1) (emphasis added))
 "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))
 
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 produc ts derived from that animal 
shall be designated as Product of Country X and the 
United States." (65.300(e)(3) (emphasis added))
 "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 (e.g., 'Born 
and Raised in Country X, Slaughtered in the United States')." (65.300(e) (emphasis added))
 
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))
 "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))
 
*The excerpts from the 2013 Final Rule in the right-hand  column replace the correspon ding provisions from the 
2009 Final Rule in the left-hand column, except for 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, p. 2668. See also 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, § 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, § 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 Panel Reports, US – COOL , para. 7.100.   Label D on the right is 
taken from the 2013 Final Rule, § 65.300(f)(2). 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/RW • WT/DS386/RW 
 
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7.3.1.3  Methods of providing origin information 
7.22.  The amended COOL measure permits the same methods for conveying origin information as 
the original COOL measure. In particular, the COOL statute sets forth that country of origin 
information "may be provided to consumers by means of a label, stamp, mark, placard, or other 
clear and visible sign on the covered commodity or  on the package, display, holding unit, or bin 
containing the commodity at the final point of sale to consumers".73 The 2009 Final Rule 
additionally provides that "[c]ountry of origin declarations can either be in the form of a placard, 
sign, label, sticker, band, twist tie, pin tag, or other format that allows consumers to identify the country of origin".
74 The declaration of country of origin in any of these forms "may be typed, 
printed, or handwritten"75 and "must be legible and placed in a conspicuous location, so as to 
render it likely to be read and understood by a customer under normal conditions of purchase".76 
7.23.  The USDA explained in the 2009 Final Rule that "[i]n order to provide the industry with as 
much flexibility as possible, this rule does no t contain specific requirements as to the exact 
placement or size of the country of origin … declaration", provided that the declaration be "legible 
and conspicuous, and allow consumers to find the country(ies) of origin … easily and read them 
without strain when making their purchases".77 The 2013 Final Rule adds with respect to labels 
and stickers that "abbreviations for the production steps are permitted as long as the information 
can be clearly understood by consumers", including the following specific examples: "'brn' as meaning 'born'"; "'raisd' as meaning 'raised'"; "'slghtrd' as meaning 'slaughtered'"; and "'hrvstd' as meaning 'harvested'"
78.79 
7.24.  Like the original COOL measure, the amended COOL measure provides that "[i]n general, 
country abbreviations are not acceptable" on meat labels.80 However, declarations of origin may 
use "country abbreviations, as permitted by Cust oms and Border Protection, such as 'U.S.' and 
'USA' for the 'United States of America'".81 
7.3.2  Coverage of the amended COOL measure 7.3.2.1  Products at issue 
7.25.  The amended COOL measure continues to a pply to a wide range of "covered commodities", 
which include muscle cuts of beef and pork as well as ground beef and pork.
82 
7.26.  As in the original dispute, the only covered products challenged in this compliance dispute 
are imported Canadian cattle and hogs and imported Mexican cattle, which are used in the 
                                               
73 COOL statute, § 1638a(c)(1). See also Panel Reports, US – COOL , para. 7.110. 
74 2009 Final Rule, § 65.400(a). See also Panel Reports, US – COOL , para. 7.110. 
75 2009 Final Rule, § 65.400(c). 
76 2009 Final Rule, § 65.400(b). See also Panel Reports, US – COOL , para. 7.111. 
77 2009 Final Rule, p. 2663. 
78 The 2009 Final Rule provided that "[f]or purposes of labeling under this part, the word harvested may 
be used in lieu of slaughtered". 2009 Final Rule, § 65.250.  The 2013 Final Rule states that "[t]he current COOL 
regulations permit the term 'harvested' to  be used in lieu of 'slaughtered.' This  final rule retains that flexibility." 
2013 Final Rule, pp. 31369-31368. 
79 2013 Final Rule, p. 31369. In explaining the allowance for such abbreviations, the USDA stated that it 
"recognizes that there is limited space to include the sp ecific location information for each production step". 
80 2009 Final Rule, § 65.400(e). 
81 2013 Final Rule, p. 31369. See also Panel Reports, US – COOL , para. 7.112. 
82 According to the COOL statute, "[i]n general [t]he term 'covered commodity' means (i) muscle cuts of 
beef, lamb, and pork ; (ii) ground beef , ground lamb, and ground pork ; (iii) farm-raised fish; (iv) wild fish; 
(v) a perishable agricultural commodity; (vi) peanuts; and (vii) meat produced from goats; (viii) chicken, in whole and in part; (ix) ginseng; (x) pecans; and (xi) macadamia nuts." COOL statute, § 1638(2)(A) (emphasis 
added). According to the 2009 Final Rule, " [c]overed commodity means: (1) Muscle cuts of beef , lamb, 
chicken, goat, and pork ; (2) Ground beef , ground lamb, ground chicken, ground goat, and ground pork ; 
(3) Perishable agricultural commodities; (4) Peanuts; (5) Macadamia nuts; (6) Pecans; and (7) Ginseng." 2009 Final Rule, § 65.135(a) (emphasis added). The 2013 Final Rule does not amend this provision of the 2009 Final Rule. WT/DS384/RW • WT/DS386/RW 
 
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  United States to produce beef and pork commodities covered by the COOL measure.83 As the 
2013 Final Rule does not modify the original COOL measure in respect of its application to meat 
and livestock, the following findings from the original dispute are equally valid for the amended COOL measure: 
[T]he COOL measure applies not only to beef and pork but also to cattle and hogs. 
Formally speaking, the category of "cover ed commodities" under the COOL measure 
includes only beef and pork, not livestock,  and the labelling requirements under the 
COOL measure apply to beef and pork only "at the final point of sale of the covered 
commodity to consumers". … [H]owever, without upstream livestock producers and processors providing the necessary information on origin as defined by the COOL measure, these retail labelling requirements are impossible to fulfil. 
The COOL measure recognizes this by creating  obligations not only for retailers of beef 
and pork but also for the broad Category of  "any person engaged in the business of 
supplying [these] to a retailer". The latter Category of upstream market participants 
"shall provide information to the retailer indicating the country of origin of the covered 
commodity". The COOL measure supports this obligation with an enforcement mechanism, including fines – again, applicable to both retailers and their suppliers.
84 
7.3.2.2  Exemptions 
7.27.  The amended COOL measure retains the or iginal COOL measure's three main exemptions 
from coverage, while slightly adjusting the first one: 
a. entities not meeting the definition of the term "retailer"; 
b. ingredients in "processed food items"; and 
c. products served in a "food service establishment".85 
7.28.  Both the original and amended COOL measures require labelling at the retail stage.86 
The original COOL measure defined "retailers" as "any person licensed as a retailer under the 
Perishable Agricultural Commodities Act of 1930" (PACA)."87 Pursuant to the terms of PACA, this 
means an entity whose invoice costs of purchases of perishable agricultural commodities are in 
excess of US $230,000 in any calendar year.88 Whereas the original COOL measure defined the 
term "retailer" as "retailer licensed under [PACA]", the 2013 Final Rule amends the definition to "any person subject to be  licensed as a retailer under [PACA]".
89 
7.29.  The COOL statute excludes from its scope an y covered commodity that is "an ingredient in a 
processed food item".90 The 2009 Final Rule defines "processed food item" as "a retail item derived 
from a covered commodity that has undergone specific processing resulting in a change in the 
                                               
83 Panel Reports, US – COOL , paras. 7.64-7.66. See also Canada 's and Mexico's requests for the 
establishment of a panel (WT/DS384/26 and WT/DS386/25). 
84 Panel Reports, US – COOL , para. 7.246 (footnote references to unchanged provisions of the COOL 
statute omitted). See also Panel Reports, US – COOL , paras. 7.67 and 7.205; Appellate Body Reports, US – 
COOL , para. 239; and section 7.3.5 below. 
85 See Panel Reports, US – COOL , paras. 7.101-7.108; Appellate Body Reports, US – COOL , para. 334. 
86 See COOL statute, §§ 1638(6) and 1638a(a)(1); 2009 Final Rule, p. 2658; and 2013 Final Rule, 
p. 31367. 
87 2009 Final Rule, § 65.240. 
88 See Panel Reports, US – COOL , para. 7.101; Canada's first written submission, footnote 39 and 
opening statement at the meeting of the Panel, footnote  14; Mexico's first writte n submission, para. 23; and 
United States' first written submission , footnote 15. In addition, a "retaile r" under PACA must have shipped, 
received, or contracted to be shipped or receive in a single day perishable agricultural commodities in a 
quantity of at least 2,000 pounds (one ton). See Exhibits CDA-10 and MEX-7, 7 U.S.C. §§ 499a(b)(6) and (11); and MEX-8, 7 C.F.R. § 46.2(x). 
89 2013 Final Rule, § 65.240 (emphasis added). The USDA explains that "[t]his change more closely 
aligns with the language contained in the PACA regulati on and clarifies that all re tailers that meet the PACA 
definition of a retailer, whether or  not they actually have a PACA li cence, are also covered by COOL". 
2013 Final Rule, p. 31368. For an analysis of any practical implications of this change, see paras. 7.224-7.225 below. 
90 COOL statute, § 1638(2)(B). WT/DS384/RW • WT/DS386/RW 
 
- 41 - 
 
  character of the covered commodity, or that has been combined with at least one other covered 
commodity or other substantive food component".91 The 2013 Final Rule does not modify these 
provisions.92 
7.30.  The COOL statute also exempts "food service establishments" from its labelling 
requirements.93 The COOL statute defines the term "food service establishment" as "a restaurant, 
cafeteria, lunch room, food stand, saloon, tavern, ba r, lounge, or other similar facility operated as 
an enterprise engaged in the business of selling food to the public".94 As noted in the original 
proceedings, the 2009 Final Rule further develops th is definition by adding that "[s]imilar food 
service facilities include salad bars, delicatessens, and other food enterprises located within retail establishments that provide ready-to-eat foods th at are consumed either on or outside of the 
retailer's premises".
95 The exemption of food service esta blishments is not amended by the 
2013 Final Rule.96 
7.3.3  Flexibilities 7.31.  The original COOL measure allowed for three main flexibilities from its general labelling 
requirements: (i) the commingling flexibility; (ii) the country order flexibility; and (iii) the multiple 
countries of raising flexibility. The 2013 Final Rule has removed the first two flexibilities, 
and amended the third one. 
7.3.3.1  Commingling flexibility removed 
7.32.  The 2009 Final Rule included flexibility with respect to the commingling of muscle cuts from 
US-slaughtered livestock. This flexibility applied specifically between Label A and Label B
97 muscle 
cuts, as well as between Label B and Label C98 muscle cuts, "commingled during a production 
day".99 
                                               
91 2009 Final Rule, § 65.220. The definition of "processed food item" further states that "[s]pecific 
processing that results in a change in the character of the covered commod ity includes cooking (e.g., frying, 
broiling, grilling, boiling, steaming, baking, roasting), cu ring (e.g., salt curing, su gar curing, drying), smoking 
(hot or cold), and restructurin g (e.g. emulsifying and extrudin g)." See also Panel Reports, US – COOL , 
paras. 7.104-7.105. 
92 See 2009 Final Rule, § 65.300(c); 2013 Final Rule, p. 31372 (responding to comments that "the 
definition of processed should be na rrowed such that more products are co vered" as being "outside the scope 
of this rulemaking"); Canada's first written submissi on, para. 18; and Mexico's first written submission, 
para. 46. 
93 COOL statute, § 1638a(b). 
94 COOL statute, § 1638(4). 
95 2009 Final Rule, § 65.140. See also Panel Reports, US – COOL , paras. 7.107-7.108. 
96 See 2009 Final Rule, § 65.300(b); 2013 Final Rule, p.  31372 (responding to comments that "[f]ood 
service establishments should be covered because 48% of  spending on food occurs at restaurants" as being 
"outside the scope of this rulemaking "); Canada's first written submission, para. 18; and Mexico's first written 
submission, para. 46. 
97 According to the original COOL measure, "[f]or muscle cut covered commodities derived from animals 
born, raised, and slaughtered in the U.S. [i.e. Label A muscle cuts] that are commingled during a production 
day with muscle cut covered commodities described in § 65.300(e)(1) [i.e. Label B muscle cuts], the origin may be designated as Product of the United States, Co untry X, and (as applicable) Country Y." 2009 Final Rule, 
§ 65.300(e)(2). 
98 According to the original COOL measure, "[f]or muscle cut covered commodities derived from animals 
that are born in Country X or Country Y, raised and slau ghtered in the United States [i.e. Label B muscle cuts], 
that are commingled during a production day with muscle cut covered commoditi es that are derived from 
animals that are imported into the United States for immediate slaughter as defined in § 65.180 [i.e. Label C muscle cuts], the origin may be designated as Produc t of the United States, Country X, and (as applicable) 
Country Y." 2009 Final Rule, § 65.300(e)(2). 
99 "As discussed in the 2009 final rule, USDA considers that commingling typically takes place in two 
different scenarios. First, muscle cut covered commod ities derived from animals bo rn, raised, and slaughtered 
in the United States that are commingled during a production day with muscle cut covered commodities 
derived from animals that were rais ed and slaughtered in the United States, and were not derived from 
animals imported for immediate slaughte r, could be designated as, for example, Product of the United States, 
Country X, and (as applicable) Country Y. Second, musc le cut covered commodities derived from animals that 
are born in Country X or Country Y, raised and slaughte red in the United States, that are commingled during a 
production day with muscle cut cove red commodities that are derived from animals that are imported into the 
 WT/DS384/RW • WT/DS386/RW 
 
- 42 - 
 
  7.33.  The original panel noted that "commingling c[ould] take place in multiple stages of the meat 
production process (e.g. processors and packers), including at the retail level."100 As to what might 
be commingled, the 2009 Final Rule referred to "commingled covered commodities"101, defining 
"covered commodities" in relevant part as "[m]us cle cuts of beef and pork" and "[g]round beef … 
and ground pork".102 In addition, as the original panel noted, the original COOL measure foresaw 
the possibility of commingling relevant types of animals.103 Both the original104 and amended COOL 
measures105 describe commingling as potentially involving animals, not just muscle cuts. 
7.34.  The 2013 Final Rule deleted the original COOL measure's provisions on the modalities of 
commingling.106 Thus, as the USDA points out, the amended COOL measure "eliminates the 
allowance for commingling of muscle cut covered commodities of different origins."107 No party 
contests that the commingling flexibility is now completely eliminated. At the same time, the 
parties continue to differ on the extent to which this eliminated commingling flexibility was actually 
used, and disagree as to the implications of commingling for this compliance dispute.108 
7.3.3.2  Country order flexibility removed 
7.35.  The 2009 Final Rule contained flexibility concerning the order of countries of origin on 
Label B.109 The countries of origin could be listed in "any order"110, so Label B for muscle cuts of, 
for example, mixed US-Canadian origin could read "Product of U.S., Canada or Product of Canada, 
U.S."111 As a result, the Appellate Body noted 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 Categories B and C meat could look the same in practice."
112 
7.36.  Under the 2009 Final Rule, this country order flexibility also applied cumulatively in regard 
to the commingling flexibility  between Label A and Label B113, as well as between Label B and 
Label C114 muscle cuts.115 Thus, the flexibility on the order of countries of origin, applied together 
                                                                                                                                               
United States for immediate slaughter,  could be designated as Product of the United States, Country X, and (as 
applicable) Country Y." 2013 Final Rule, footnote 7. See also Appellate Body Reports, US – COOL , para. 246. 
100 Panel Reports, US – COOL , para. 7.704. See Appellate Body Reports, US – COOL , para. 475. 
101 According to the original COOL measure, " [c]ommingled covered commodities  means covered 
commodities (of the same type) presente d for retail sale in a consumer package that have been prepared from 
raw material sources having different origins." 2009 Final Rule, § 65.125. 
102 2009 Final Rule, § 65.135(a)(1) and (2). See also Appellate Body Reports, US – COOL , para. 246. 
103 See Panel Reports, US – COOL , para. 7.705. 
104 As noted in the 2009 Final Rule, "[t]he Agency recognizes that the multitude of different production 
practices and possible sales transactions can influence the value determinations made throughout the supply 
chain resulting in instances of commingling of animals or covered commodities, which will have an impact when mixing occurs." 2009 Final Rule, p. 2670.  
105 2013 Final Rule, p. 31368 ("commingled livestock"); p. 31378 ("firms currently using the flexibility 
afforded by commingling livestock of more than one or igin on a single production day"); p. 31380 ("beef 
packers and processors that currently  commingle domestic and foreign-orig in cattle"; "the estimated number 
of commingled steers and heifers"; and "the estima ted number of commingled barrows and gilts"); and 
p. 31384 ("facilities that currently commingle domestic and foreign-origin cattle or hogs"). 
106 2013 Final Rule, p. 31367. Of note, the amended COOL measure does not expunge the original COOL 
measure's definition of "commingled covered commodities." See footnote 101 above. 
107 2013 Final Rule, p. 31385. 
108 See paras. 7.121-7.127 below. 
109 2009 Final Rule, § 65.300(e)(4) and pp. 2659 and 2661. 
110 2009 Final Rule, § 65.300(e)(4) and pp. 2659, 2661, and 2662. 
111 2009 Final Rule, p. 2661. 
112 Appellate Body Reports, US – COOL , para. 245 (footnote omitted). Likewise, the original panel found 
that "specific Labels B and C may look the same, provided that the countries involved in the production of the Label B and C muscle cuts in questi on are the same." Panel Reports, US – COOL , para. 7.288 
(footnotes omitted). 
113 According to the original COOL measure, "[f] or muscle cut covered commodities derived from 
animals born, raised, and slaughtered in the U.S. [i.e . Label A muscle cuts] that are commingled during a 
production day with muscle cut covered commodities described in § 65.300(e)(1) [i.e. Label B muscle cuts], the origin may be designated as Product of the Unit ed States, Country X, and (as applicable) Country Y." 
2009 Final Rule, § 65.300(e)(2). 
114 According to the original COOL measure "[f]or muscle cut covered commodities derived from animals 
that are born in Country X or Country Y, raised and slau ghtered in the United States [i.e. Label B muscle cuts], 
that are commingled during a production day with muscle cut covered commoditi es that are derived from 
animals that are imported into the United States for immediate slaughter as defined in § 65.180 [i.e. Label C 
 WT/DS384/RW • WT/DS386/RW 
 
- 43 - 
 
  with the commingling flexibilities, could result in commingled Label A, B, and C meat carrying the 
same, identical label: 
When Category A and Category B meat is commingled during a single production day, 
all of the resulting meat may be labelled as if it were Category B meat, even though a 
particular piece of meat may have been derived from a Category A animal. Further, 
when Category B and Category C meat is commingled during a single production day, all of the resulting meat may be labelled as if it were Category B meat, even though a 
particular piece of meat may have been derived from a Category C animal. In both 
cases, since the resulting meat may be labelled as if it were Category B meat, the declared countries of origin for all commingled meat may be listed in any order.
116 
7.37.  By replacing the relevant provision in the 2009 Final Rule117, the 2013 Final Rule eliminated 
the country order flexibility altogether, including as applied in combination with the now removed 
commingling flexibility. 
7.3.3.3  Amended multiple countries of raising flexibility 
7.38.  In general, the 2013 Final Rule requires Labels B and C to "specifically identify the 
production steps occurring in each country."118 At the same time, based on practical 
considerations119, it includes some flexibility: 
If an animal is raised in the United States as well as another country (or multiple 
countries), the raising occurring in the other country (or countries) may be omitted from the origin designation.
120 
7.39.  This flexibility does not apply to Label C ("if the animal was imported for immediate 
slaughter"), or "where by doing so the muscle cut covered commodity would be designated as 
having a United States country of origin."121 The parties dispute the implications of this flexibility 
and its carve-outs for the complainants' TBT claims.122 
                                                                                                                                               
muscle cuts], the origin may be designated as Produc t of the United States, Country X, and (as applicable) 
Country Y." 2009 Final Rule, § 65.300(e)(2). See also ibid. p. 2659, 2661, and 2662. 
115 According to the original COOL measure, "[i]n each case of paragraphs (e)(1), (e)(2), and (e)(4) of 
this section, the countries may be listed in any order." 2009 Final Rule, § 65.300(e) (4). As the original panel noted, "[t]he 2009 Final Rule (AMS) further provides that the labelled countries may be listed in any order when the meat is derived from animals classified as Cate gory B, or when meat fall ing under categories A and 
B, as well as B and C, is commingled during a single pr oduction day." Panel Reports, US – COOL , para. 7.97 
(footnote omitted). 
116 Appellate Body Reports, US – COOL , para. 246 (footnotes omitted). See also ibid. paras. 336-337. 
As the original panel held, "if Category A and B an imals are commingled at the slaughterhouse, the meat 
derived thereof should, in principle, use Label B. If this  Label B meat is commingled at the retail level with 
Label C meat, the resulting group can use Label B or C. Assuming that the retailer decides to use Label C for 
that group of meat, the consumer has no certainty as to the origin of meat as defined by the United States. In 
this scenario, the consumer could alternatively believe that this meat comes from any of the following: (i) 
animals born and raised in country X and slaughtered in the United States; (ii) animals born in country X and 
raised and slaughtered in the United States that were commin gled with animals born and raised in country X 
and slaughtered in the United States ; or (iii) animals born in country X and raised and slaughtered in the 
United States that simply list the country names in any order." Panel Reports, US – COOL , para. 7.705. 
117 2013 Final Rule, § 65.300(e). 
118 2013 Final Rule, § 65.300(e). 
119 According to the 2013 Final Rule, "if animals are born and raised in another country and 
subsequently further raised in the Unit ed States, only the raising that occurs in the United States needs to be 
declared on the label, as it is underst ood that an animal born in another co untry will have been raised at least 
a portion of its life in that other country. Because the co untry 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 agai n as a country in which the animal was also raised. Accordingly, under this 
final rule, the production step related to any raising occurring outside the United States may be omitted from 
the origin designation of these commodities." 2013 Final Rule, p. 31368. 
120 2013 Final Rule, § 65.300(e). 
121 2013 Final Rule, § 65.300(e). 
122 See paras. 7.233-7.244 below. WT/DS384/RW • WT/DS386/RW 
 
- 44 - 
 
  7.40.  The multiple countries of raising flexibilit y under the 2013 Final Rule resembles the flexibility 
under the 2009 Final Rule, which also applied only to Category B muscle cuts: 
[I]f animals are raised in another country and the United States, provided the animals 
are not imported for 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.123 
7.41.  According to the USDA, "it is understood that an animal born in another country will have 
been raised at least a portion of its life in that other country."124 
7.42.  The main difference between the two versions of this flexibility is that the 2013 Final Rule 
specifies that the other country or countries of raising may be "omitted"125, whereas the 
2009 Final Rule refers to the US raising "tak[ing] precedence"126 over the raising in the country of 
birth. Under the 2009 Final Rule, Label B did not need to show point-of-production information 
explicitly, although origin was based on such information. A muscle cut from a US-slaughtered animal born in Canada, and raised in Canada and the United States, could have carried a "Product 
of United States, Canada" label. US raising "taking precedence" over Canadian raising had no 
practical implication for this label. The label had to mention Canada in any event, given the place of birth.
127 Conversely, under the 2013 Final Rule, the flexibility means that for 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 'Bor n and Raised in Country X, Raised and Slaughtered 
in the United States'".128 
7.43.  The multiple countries of raising flexibility under the 2013 Final Rule also allows for omitting 
"countr ies" of raising.129 Thus, for instance, a Label B may now read "'Born in Country X, Raised 
and Slaughtered in the United States' in lieu of 'B orn and Raised in Country X, Raised in Country Y, 
Raised and Slaughtered in the United States'".130 By contrast, the corresponding flexibility in the 
2009 Final Rule covered only the "minimal raising th at occurred in the animal's country of birth."131 
In practice, this was again inconsequential for the label. Muscle cuts from an animal (i) born in Canada; (ii) raised in Canada, Mexico, and the United States; and (iii) slaughtered in the 
United States would carry a North American La bel B ("Product of the United States, Canada, 
Mexico") in any case. Although raising in the United States could take precedence over raising in Canada, the label had to mention Canada in any event, given the place of birth.
132 
7.3.4  Label variations in light of the flexibilities 
7.44.  Table 2 below compares some possible variations of the muscle cut labels under the original 
and the amended COOL measures, in light of the or iginal flexibilities as removed or amended by 
the 2013 Final Rule. 
                                               
123 2009 Final Rule, p. 2659. See also ibid. p. 2662. 
124 2013 Final Rule, p. 31368. 
125 2013 Final Rule, § 65.300(e). 
126 2009 Final Rule, p. 2659. See also ibid. p. 2662. 
127 According to the 2013 Final Rule, "the country of birth is already required to be listed in the origin 
designation." 2013 Final Rule, p. 31368. 
128 2013 Final Rule, p. 31368. 
129 2013 Final Rule, § 65.300(e) (emphasis added). 
130 2013 Final Rule, § 65.300(e). 
131 2009 Final Rule, p. 2659. See also ibid. p. 2662. 
132 According to the 2013 Final Rule, "the country of birth is already required to be listed in the origin 
designation." 2013 Final Rule, p. 31368. See paras. 7.233-7.244 below. WT/DS384/RW • WT/DS386/RW 
 
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  TABLE 2: EXAMPLES OF POSSIBLE MUSCLE CUT LABELS IN LIGHT OF FLEXIBILITIES 
 
2009 Final Rule 2013 Final Rule 
A   A+B  
commingled  
 
 
   
 
 
Other label due to flexibility 
to list countries in "any order" 
iv: 
 
 Not 
   
applicable 
B  
 
 
 
  
 
 
  
Other label due to flexibility 
to list countries in "any order" 
iv: 
 
  
 
  
  
 
 
 
  
 
Other label due to flexibility on raising 
x: 
   
 
 
  B+C 
commingled     
 
 
 
Other label due to flexibility 
to list countries in "any order" 
iv: 
 
  
 
   Not 
  
 
applicable 
C   
 
D   
Footnotes to Table 2:   i 2009 Final Rule, p. 2668. See also Panel Reports, US – COOL , para. 7.100.   ii 2013 Final Rule, 
§ 65.300(d) and p. 31368.   iii 2009 Final Rule, pp. 2659 and 2661.   iv 2009 Final Rule, § 65.300(e)(4) and pp. 2659, 2661 
and 2662.   v 2009 Final Rule, p. 2659.   vi 2009 Final Rule, § 65.300(e)(1) and p. 2661.   vii 2009 Final Rule, p. 2662.   
viii 2013 Final Rule, p. 31368.   ix 2013 Final Rule, § 65.300(e).   x 2013 Final Rule, § 65.300(e).   xi 2013 Final Rule, 
§ 65.300(e) and p. 31368.   xii 2013 Final Rule, p. 31369.   xiii 2009 Final Rule, § 65.300(e)(4) and pp. 2659, 2662 and 2670.   
xiv 2009 Final Rule, § 65.300(e)(3) and p. 2661.   xv 2013 Final Rule, § 65.300(e) and pp. 31368-31369.   xvi Panel Reports, 
US – COOL , para. 7.100.   xvii 2013 Final Rule, § 65.300(f)(2) and p. 31369. e.g. 
e.g. e.g. e.g. 
e.g. Product of the United States, Country X, and 
(as applicable) Country Y iii 
Product of the 
United States, 
Country X Product of the United States, 
Country X, and Country Y 
Product of Country X, the United States, and 
(as applicable and in any position) Country Y 
Product of the United States, Country X, and 
(as applicable) Country Y v 
Product of the 
United States, 
Countr y X vi Product of the United States, 
Country X, and … 
Countr y Y vi 
Product of Country X, the United States, and 
(as applicable and in any position) Country Y 
Product of the United States, Country X, and 
(as applicable) Country Y xiii 
Product of Country X, the United States, and 
(as applicable and in any position) Country Y Product of the U.S. i Born, Raised , and Slau ghtered in the United  States ii 
Product of Country X and 
the United States xiv 
Product of Country X xvi Product of Country X xvii Born and Raised in 
Country X, Raised and 
Slaughtered in the 
United States viii 
Born in Country X, Raised and 
Slaughtered in the United States xi Born and Raised in 
Country X, Raised in 
Country Y, Raised and 
Slaughtered in the 
United  States  ix 
Beef is from animals born in 
Canada, Raised and Slaughtered 
in the United  States  xii 
Born and Raised in Country X, Slaughtered 
in the United States xv Product of Canada , U.S. vii Product of U.S. , Canada vii Product of U.S., Canada vii 
Product of Canada , U.S. vii WT/DS384/RW • WT/DS386/RW 
 
- 46 - 
 
   
7.3.5  Unchanged recordkeeping and verification rules 
7.45.  The amended COOL measure leaves the original COOL measure's recordkeeping and 
verification rules unchanged.133 In particular, the recordkeeping and verification provisions of the 
COOL statute134 and its prohibition of traceback135 remain in effect. Further, the 2013 Final Rule 
does not amend the 2009 Final Rule's recordkeeping provisions.136 Although the parties agree that 
the amended COOL measure leaves the pre-existi ng rules on recordkeeping and verification 
unchanged137, they dispute whether the amended COOL measure entails more onerous 
recordkeeping and verification in practice.138 
7.4  Scope of the compliance dispute 7.46.  According to the United States, the complainants should not be allowed an "unfair second 
chance" to challenge unchanged aspects of the original COOL measure, or to use compliance 
proceedings to "re-raise" claims and argume nts rejected in the original proceedings.
139 
The United States identifies two aspects of the original COOL measure that "were not the subject 
of DSB recommendations and rulings and remained unchanged": (i) the ground meat rule; and 
(ii) the prohibition of a trace-back system. According to the United States, these are outside the terms of reference of this compliance Panel.
140 
7.47.  The task of a compliance panel is to "consider th[e] new measure in its totality", which 
requires "consider[ing] both the measure itself and the measure's application".141 In doing so, a 
compliance panel is "not confined to examining the 'measures taken to comply' from the perspective of the claims, arguments and factual circumstances that related to the measure that 
was the subject of the original proceedings".
142 At the same time, compliance proceedings should 
not allow a complainant to re-litigate a claim regarding unchanged aspects of an original measure.
143 Nor may a complainant use compliance claims to "re-open" issues decided in 
substance in the original proceedings.144 
7.48.  We note that the complainants' panel reques ts focus on muscle cut labels; they do not refer 
to either the ground meat rules or the trace-back prohibition.145 Accordingly, the ground meat 
                                               
133 For a description of these rules, see Panel Reports, US – COOL , paras. 7.116-7.121. 
134 According to the COOL statute: 
"(1) The Secretary may conduct an audit of any person  that prepares, stores, handles, or distributes a 
covered commodity for retail sale to verify complian ce with this subchapter (including the regulations 
promulgated under section 1638c(b) of this title). (2)(A) A person subject to an audit under paragraph (1) shall provide the Secretary with verification of 
the country of origin of covered commodities. Record s 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, may serve as such verifica tion." COOL statute, § 1638a(d)(1) and (2)(A). 
135 According to the COOL statute, "[t]he Secretary shall not use a mandatory identification system to 
verify the country of origin of a covered commodity." COOL statute, § 1638a(f)(1). 
136 2009 Final Rule, § 65.500. 
137 Canada's second written submission, para. 21; Mexico's first written su bmission, para. 45; and 
United States' first writ ten submission, para. 3. 
138 See section 7.5.4.1.2.4 below. 
139 United States' first written submission, para. 48. In addition, the United States argues that the terms 
of reference of the compliance Panel cannot include a no n-violation claim, which is addressed in section 7.8 
below. 
140 United States' response to Pane l question No. 1, paras. 2-5. 
141 Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 87. See Canada's second written 
submission, para. 7. 
142 Appellate Body Report, Canada – Aircraft (A rticle 21.5 – Brazil) , para. 41. See Mexico's second 
written submission, para. 9. 
143 Appellate Body Report, US – Upland Cotton (Art. 21.5 – Brazil) , para. 210 (citing Appellate Body 
Reports, EC – Bed Linen (Article 21.5 – India) , para. 93 and US – Shrimp (Article 21.5 – Malaysia) , para. 96. 
See United States' first written submission, footnote 121. 
144 Appellate Body Report, US – Zeroing (EC) , para. 427. See also Appellate Body Report, EC – Bed 
Linen (Article 21.5 – India) , paras. 96-98; United States' first written submission, footnote 120. 
145 See Canada's request for the establishment of a panel, pp. 2-3; and Me xico's request for the 
establishment of a panel, p. 3. WT/DS384/RW • WT/DS386/RW 
 
- 47 - 
 
  rules and the trace-back prohibition are outside our terms of reference146, and we could not 
address them as claims in these proceedings even  if the complainants had characterised them as 
such subsequent to their requests for establishing this compliance Panel. 
7.49.  The complainants confirm that they are not bringing claims  against the unchanged ground 
meat labelling scheme and the trace-back prohib ition, but rather are referencing these as 
arguments .147 Indeed, there is an important distinction to be made between claims , i.e. allegations 
of violation of the substantive provisio ns of the WTO covered agreements, and arguments , 
i.e. means whereby a party progressively develops and supports its claims.148 Our mandate is 
limited to reviewing the complainants' above-mentioned claims149 with regard to aspects of the 
amended COOL measure identified in the complain ants' panel requests. In reviewing these claims, 
however, we are not precluded from considering the complainants' arguments concerning the 
ground meat rule and the trace-back prohibition.150 
7.5  Article 2.1 of the TBT Agreement 7.5.1  Legal test 
7.50.  The complainants bring national treatmen t claims under both the TBT Agreement and the 
GATT 1994.
151 In relevant part, Article 2.1 of the TBT Agreement provides: 
Members shall ensure that in respect of tec hnical regulations, products imported from 
the territory of any Member shall be accorded treatment no less favourable than that 
accorded to like products of national origin … . 
7.51.  The parties agree152 on the three main criteria to establish a violation of national treatment 
under Article 2.1: 
a. the measure at issue is a "technical regulation" as defined in Annex 1.1 to the 
TBT Agreement; 
b. the imported and domestic products at issue are "like products"; and 
c. the measure at issue accords less favourable treatment to imported products than to like 
domestic products.153 
7.5.2  Technical regulation 
7.52.  According to the TBT Agreement, a "technical regulation" is a "[d]ocument which lays down 
product characteristics or their related processes and production methods, including the applicable 
                                               
146 Appellate Body Reports, Korea – Dairy , para. 139; and EC – Hormones , para. 156. See also 
Constitution of the Panel, Note by the Secretariat, WT/DS384/27 and WT/DS386/26. 
147 Mexico's second written submissi on, paras. 19, 20, and 71; and Cana da's second written submission, 
paras. 40 and 43-44 (emphasis added). 
148 As the Appellate Body held, claims  "must be clearly set out in the request for the establishment of 
the panel", while arguments  "do not need to be set out in detail in a panel request; rather, they may be 
developed in the submissions made to  the panel." Appellate Body Report, Dominican Republic – Import and 
Sale of Cigarettes , para. 121. See also Mexico's second written submission, para. 16. 
149 See section 7.1 above. According to the Appellat e Body, "[t]h[e] task [of a compliance panel] is 
circumscribed by the specific claims made by the comp lainant when the matter is referred by the DSB for an 
Article 21.5 proceeding. It is not part of the task of a panel under Article 21.5 to address a claim that has not 
been made." Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 87. 
150 According to the Appellate Body, "[p]anels are inhibited from addressing legal claims falling outside 
their terms of referenc e. However, nothing in the DSU limits the faculty of a panel freely to use arguments 
submitted by any of the parties … to support its own findings and conclusions on the matter under its consideration." Appe llate Body Report, EC – Hormones , para. 156. 
151 See section 7.1 above. 
152 Canada's first written submission, paras. 23-24;  Mexico's first written submission, para. 62; 
and United States' first wr itten submission, para. 55. 
153 Appellate Body Reports, US – COOL , para. 267. See also Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , para. 7.444. WT/DS384/RW • WT/DS386/RW 
 
- 48 - 
 
  administrative provisions, with which compliance is mandatory. It may also include or deal 
exclusively with terminology, symb ols, packaging, marking or labelling requirements as they apply 
to a product, process or production method."154 
7.53.  In light of this definition, the original COOL measure was found to be a "technical 
regulation" based on three well-established criteria155: 
a. compliance with the original COOL measure was mandatory; 
b. the original COOL measure applied to an id entifiable product or group of products 
(namely certain types of meat and livestock); and 
c. the original COOL measure laid down one or more product characteristics by imposing a 
country of origin labelling requirement.156 
7.54.  The complainants argue that there are no changes under the amended COOL measure to 
alter this finding.157 The United States accepts that it is "not in dispute" that the amended COOL 
measure is a technical regulation.158 
7.55.  As noted159, the statutory element of the COOL measure, the COOL statute, remains 
unchanged. Accordingly, the original panel's findings that relevant aspects of the COOL statute 
fulfil the above three requirements160 also remain valid for the amended COOL measure. 
As regards the regulatory element of the amen ded COOL measure, the 2013 Final Rule amends 
the 2009 Final Rule only partially. As explained161, the main changes introduced by the 
2013 Final Rule concern the introduction of point-of-production labelling for Category A-C muscle cuts as well as the elimination of the commingling and country order flexibilities. These changes do not affect aspects of the 2009 Final Rule examined by the original panel of relevance to the criteria 
and definition of a technical regulation.
162 
7.56.  Therefore, we find that the amended COOL measure continues to be a "technical regulation" 
as defined by the TBT Agreement. 
                                               
154 Annex 1.1 of the TBT Agreement (explanatory note omitted). 
155 Appellate Body Report, EC – Sardines , para. 176. See also Appellate Body Reports, EC – Asbestos , 
paras. 66-70; and EC – Seal Products , paras. 5.21-5.23. 
156 Panel Reports, US – COOL , paras. 7.146-7.216. This finding was not appealed. See Appellate Body 
Reports, US – COOL , para. 239 (citing Panel Reports, US – COOL , paras. 7.162, 7.207, and 7.214) and 
footnote 371. 
157 Canada's first written submission, para. 23; Me xico's first written submission, paras. 63-76. 
158 United States' first written submission, para. 56. 
159 See paras. 7.7-7.9 above. 
160 In relation to the three applicable criteria, the or iginal panel found that th e COOL statute: firstly, 
"sets out the core [COOL] requirement by using the wo rd 'shall'" (citing COOL statute, § 1638a(a)(1)) and 
"refers to the [COOL] requirement as 'the mandatory country of origin requirement'" (citing COOL statute, § 1638a(a)(2)(B)(ii)); secondly, it "explicitly defines 'covered commodity' for country of origin labelling purposes as including '(i) muscle cuts  of beef ... and pork' and '(ii) ground  beef ... and gro und pork'" (citing 
COOL statute, § 1638(2)); and thirdly, "there is no di spute among the parties that the COOL measure lays 
down a country of origin labelling requirement", and that "the obligations set out by the [original] COOL measure, including the informat ion requirement for '[a]ny person en gaged in the business of supplying a 
covered commodity to a retailer', are closely related to this essential function" (citing COOL statute, 
§ 1638a(e)). See Panel Reports, US – COOL , paras. 7.157, 7.161, 7.202, and 7.212. These findings of the 
original panel were not appealed. 
161 See section 7.3 above. 
162 For instance, the original panel found that the 2009 Final Rule "contains the word 'mandatory' in its 
very title, and consistently  refers to the essence of the COOL meas ure as 'mandatory COOL'" and sets out 
obligations and information requirem ents for the original COOL measur e for "any person engaged in the 
business of supplying a covered commodity to a retailer" (citing 2009 Final Rule, § 65.500(b)(3)). See Panel Reports, US – COOL , paras. 7.118 and 7.161. These findings of the original panel were not appealed. WT/DS384/RW • WT/DS386/RW 
 
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  7.5.3  Likeness 
7.57.  The original panel found that "Canadian cattle and US cattle, and Mexican cattle and US 
cattle, are 'like products', and that Canadian hogs and US hogs are also 'like products' for purposes of Article 2.1".
163 
7.58.  The complainants argue that there is no relevant change to the factual circumstances 
supporting this finding, and that the imported and domestic products at issue in this case continue to be "like".
164 The United States affirms that likeness is "not in dispute" in these compliance 
proceedings.165 
7.59.  Absent any factual change relevant for assessing likeness, we find that the relevant 
products continue to qualify as like products. T hus, as the original panel held, "Canadian and US 
cattle are like products; moreover, Canadian and US hogs are also like products. Further, Mexican 
cattle … and US cattle … are also like products."166 
7.5.4  Less favourable treatment 7.60.  In the context of Article 2.1, the part ies' disagreement centres on whether the amended 
COOL measure accords less favourable treatment to Canadian and Mexican products than that 
accorded to like products of the United States. 
7.61.  The parties agree
167 that less favourable treatment is concerned with "whether the technical 
regulation at issue modifies the conditions of competition in the market of the regulating Member 
to the detriment of the group of imported products vis-à-vis  the group of like domestic 
products."168 The parties also recognize that establishing such detrimental impact does not suffice 
to establish less favourable treatment under Article 2.1; it must additionally be shown that any 
such detrimental impact does not stem exclusively from legitimate regulatory distinctions.169 
7.62.  Accordingly, we first assess whether th e amended COOL measure has detrimental impact, 
and then proceed to inquire whether any such  detrimental impact stems exclusively from 
legitimate regulatory distinctions. 
7.5.4.1  Detrimental impact 7.63.  The complainants claim
170 that the amended COOL measure has maintained and, in fact, 
increased the original COOL measure's detrimental impact on the competitive opportunities of 
imported livestock in comparison with like US products.171 The United States accepts that the 
amended COOL measure was not intended to "remove [the original COOL measure's] detrimental impact on imports"
172; at the same time, it rejects the suggestion that there is any increase in 
detrimental impact. 
                                               
163 Appellate Body Reports, US – COOL , para. 256 (citing Panel Reports, US – COOL , para. 7.256). This 
finding of the original panel was not appealed. 
164 Canada's first written submission, para. 25; Me xico's first written submission, paras. 77-79. 
165 United States' first written submission, para. 56. 
166 Panel Reports, US – COOL , para. 7.256. 
167 Canada's first written submission, para. 28; Me xico's first written submission, para. 80; and 
United States' first writ ten submission, para. 57. 
168 See Appellate Body Report, US – Clove Cigarettes , para. 180. 
169 See Canada's first written submission, para. 28 ; Mexico's first written submission, para. 80; 
United States' first written submission , para. 57; Appellate  Body Reports, US – COOL , para. 271 
(citing Appellate Body Reports, US – Clove Cigarettes , para. 182; US – Tuna II (Mexico) , paras. 215-216). 
170 Canada's request for the establishm ent of a panel, p. 2; Mexico's request for the establishment of a 
panel, p. 2. 
171 See Canada's first written submission, para. 35; and Mexico's first writte n submission, para. 12. 
172 According to the United States, "to comply with the DSB recommendations and rulings, the 
United States could either remove the detrimental impact on imports or ensure that any de trimental 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 distinctio n." United States' response to Panel question No. 18 (emphasis original). WT/DS384/RW • WT/DS386/RW 
 
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  7.64.  The original panel held that "[t]he [original] COOL measure create[d] a de facto incentive in 
favour of domestic, and to the detriment of imported, livestock in the particular circumstances of the US livestock and meat market"
173, and "reduce[d] the competitive opportunities of imported 
livestock relative to domestic livestock."174 On this basis, the original panel "f[ou]nd that, in the 
context of the muscle cut labels, the COOL measure create[d] an incentive in favour of processing 
exclusively domestic livestock and a disincentive against handling imported livestock."175 
Accordingly, the original panel "also f[ou]nd that, in the context of muscle cut labels, 
the COOL measure de facto discriminate[d] against imported livestock by according less 
favourable treatment to Canadian cattle and hogs, and to Mexican cattle, especially Mexican feeder cattle, than to like domestic livestock."
176 As regards the ground meat label, the original panel 
"f[ou]nd that the complainants have not demonstrated that the ground meat label under the 
[original] COOL measure results in less favourable treatment for imported livestock."177 
7.65.  The original panel's Article 2.1 finding concerning the ground meat label was not challenged 
on appeal. Regarding the muscle cut labels, the Appellate Body upheld the original panel's finding 
that the COOL measure resulted in less favourable treatment for imported livestock than for like 
domestic livestock.178 However, the Appellate Body declared the original panel's legal analysis 
under Article 2.1 to be "incomplete", as the original panel "should have continued its examination 
[beyond assessing detrimental impact] and determined whether … the detrimental impact stems 
exclusively from a legitimate regulatory distinction".179 Thus, while the Appellate Body endorsed 
the original panel's approach180 and conclusion181 regarding the detrimental impact aspect of the 
legal test, it also determined that the detrimental impact did not stem exclusively from a 
legitimate regulatory distinction.182 Under the circumstances, the Appellate Body ultimately upheld 
the original panel's finding that the COOL measure is inconsistent with Article 2.1 of the TBT Agreement, but for different reasons.
183 
7.66.  We shall follow the original panel's approach to detrimental impact184 – focusing on the 
muscle cut labels.185 As summarized by the Appellate Body, this approach involved three main 
legal considerations: 
a. as a "starting point"186, whether the different categories of muscle cut labels under the 
COOL measure accord different treatment to imported livestock; 
b. whether the COOL measure involves segregation and, consequently, differential costs for 
imported livestock; and 
c. whether, through the compliance costs involved, the COOL measure creates any 
incentive to process domestic livestock, thus reducing the competitive opportunities of imported livestock.
187 
7.67.  In addition, the original panel examined the parties' evidence of actual trade effects – albeit 
stating that analysing actual trade effects was not indispensable for disposing of the complainants' 
                                               
173 Panel Reports, US – COOL , para. 7.398. 
174 Panel Reports, US – COOL , para. 7.381. 
175 Panel Reports, US – COOL , para. 7.420. 
176 Panel Reports, US – COOL , para. 7.420. 
177 Panel Reports, US – COOL , para. 7.437. 
178 Appellate Body Reports, US – COOL , para. 350. 
179 Appellate Body Reports, US – COOL , para. 293. 
180 The Appellate Body held that the original panel's "legal approach to assessing detrimental impact was 
correct." Appellate Body Reports, US – COOL , para. 293. 
181 The Appellate Body found that "t he [original p]anel [had] properly examined whether the [original] 
COOL measure modifie[d] the conditions of competition in the US market to the detriment of imported livestock." Appellate Body Reports, US – COOL , para. 291. See also ibid. para. 292. 
182 Appellate Body Reports, US – COOL , para. 349. 
183 Appellate Body Reports, US – COOL , para. 350. 
184 For a "Summary of the [Original] Panel's Findings" und er Article 2.1, in particular the original panel's 
approach to assessing detrimental im pact, see Appellat e Body Reports, US – COOL , paras. 257-264. 
185 In light of the parties' claims and explanations, we address detrimen tal impact only with regard to 
the muscle cut labels in this compliance dispute. See section 7.4 above. 
186 Appellate Body Reports, US – COOL , para. 258. See also Panel Reports, US – COOL , para. 7.296. 
187 See Appellate Body Reports, US – COOL , para. 257; Panel Reports, US – COOL , para. 7.279. WT/DS384/RW • WT/DS386/RW 
 
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  Article 2.1 claims. Given that the Appellate Body di d not find error in the original panel's approach 
to evidence on actual trade effects in the original dispute188, we review the extensive evidence 
submitted on the same matter in this compliance dispute. 
7.5.4.1.1  Different treatment 
7.68.  The original panel began by reviewing th e statutory definitions of the four muscle cut 
labels.189 It then addressed the commingling flexibili ty between products eligible for Labels A 
and B.190 The original panel observed that under the original COOL measure, "imported livestock is 
ineligible for the label reserved for meat from exclusively US-origin livestock, whereas in certain 
circumstances meat from domestic livestock is eligible for a label that involves imported livestock."
191 The original panel considered this difference only as "the starting point"192 of its 
analysis because " different  treatment" of imported products is "not necessarily inconsistent … as 
long as the treatment by the measure is 'no less favourable'."193 
7.69.  On appeal, the Appellate Body confirmed its earlier finding that "'[a] formal difference in 
treatment between imported and like domestic products is … neither necessary, nor sufficient, to 
show a violation' of the national treatment obligation."194 It noted that the original panel's 
statement on different treatment is not a "finding or a legal conclusion"195, but "merely … a 
passing observation regarding the extent to which the COOL measure de jure  treat[ed] imported 
livestock differently than domestic livestock."196 
7.70.  As explained197, the 2013 Final Rule removed the commingling flexibility, which allowed 
Category A products to carry Label B in certain circumstances. Thus, the basis for observing any formally different treatment of domestic and impo rted livestock under the original COOL measure 
is not maintained under the amended COOL measure. 
7.71.  We do not need to explore further the ex istence of any formally different treatment under 
the amended COOL measure. As in the original dispute, "the complainants are not contesting any 
formal difference in the treatment accord ed to domestic and imported livestock per se "; they 
claim
198 "de facto  less favourable treatment to imported livestock."199 
7.72.  In any event, any further assessment of formally different treatment could only serve as a 
starting point for our less favourable treatment analysis. It would lack any "direct… connect[ion]" 
or implication for our ultimate finding on whether or not the amended COOL measure entails de 
facto discrimination.200 
                                               
188 See also Appellate Body Reports, US – COOL , para. 264. 
189 See Panel Reports, US – COOL , paras. 7.284 and 7.286. 
190 Panel Reports, US – COOL , para. 7.295. The original panel noted the commingling flexibility between 
Label B and C products and that "Labels B and C may overla p in practice since 'the countries of origin may be 
listed in any order' on Label B." However, the original panel held that "flexibilities between Labels B and C have limited relevance for the complainants' claims under Article 2.1", and it chose to "focus … [on] the distinction between Label A, defined as 'United St ates Country of Origin' in the COOL statute, and the rest of the labels, 
which all involve livestock with an imported element." Panel Reports, US – COOL , paras. 7.288 
(footnote omitted) and 7.289. 
191 Panel Reports, US – COOL , para. 7.295. 
192 Panel Reports, US – COOL , para. 7.296 (citing Panel Report, EC – Trademarks and Geographical 
Indications (Australia) , para. 7.464). 
193 Panel Reports, US – COOL , para. 7.296 (citing Appellate Body Report, Korea – Various Measures on 
Beef, paras. 135 (emphasis original) and 136-137). 
194 Appellate Body Reports, US – COOL , para. 277 (citing Appellate Body Report, Korea – Various 
Measures on Beef , para. 137). 
195 Appellate Body Reports, US – COOL , para. 278. 
196 Appellate Body Reports, US – COOL , para. 279. 
197 See section 7.3.3.1 above. 
198 See Canada's first written submission, para. 28; and Mexico's first writte n submission, para. 81. 
199 Panel Reports, US – COOL , para. 7.297. 
200 Appellate Body Reports, US – COOL , para. 279. WT/DS384/RW • WT/DS386/RW 
 
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  7.73.  We turn to whether the amended COOL measure involves de facto201 less favourable 
treatment, including detrimental impact. In analysing this matter, we are mindful of the Appellate Body's guidance in the original dispute: 
[W]here a technical regulation does not discriminate de jure , a panel must determine 
whether the evidence and arguments adduced by the complainant in a specific case 
nevertheless demonstrate that the operation of that measure, in the relevant market, has a de facto  detrimental impact on the group of like imported products. A panel's 
analysis must take into consideration the totality of the facts and circumstances 
before it, including any implications for competitive conditions discernible from the design and structure of the measure itself, as well as all features of the particular market at issue that are relevant to the measure's operation within that market. 
In this regard, " any adverse impact on competitive opportunities for imported 
products vis-à-vis  like domestic products that is caused by a particular measure may 
potentially be relevant" to a panel's assessment of less favourable treatment under 
Article 2.1.
202 
7.5.4.1.2  Costs, segregation, and recordkeeping 7.5.4.1.2.1  Costs
203 
7.74.  The original panel started its analysis of whether there is de facto detrimental impact by 
establishing that – according to the 2009 Final Rule – the original COOL measure involved compliance costs.
204 
7.75.  Addressing the United States' arguments that "any regulation potentially involves costs"205 
and that these costs "may [be] differential for different types of market participants"206, the 
original panel pointed out that "it is not the costs of the COOL measure in itself that the complainants contest."
207 It added that "Article 2.1 is concerned with the equality of competitive 
conditions between domestic and imported produc ts", and "no competitive disadvantage shall be 
accorded to imported products as compared to like domestic products."208 According to the original 
panel, "[a] cost resulting from a (technical) regulation may qualify as a competitive disadvantage 
if it is incurred only by imported and not like domestic products."209 
7.76.  The same analytical approach applies to  the amended COOL measure and this compliance 
dispute. Like its predecessor210, the 2013 Final Rule has a dedicated section on the costs of the 
amended COOL measure.211 And, as in the 2009 Final Rule212, the USDA "recognizes that 
                                               
201 The original panel held that "it would be incongruous to interpret Article 2.1 of the TBT Agreement as 
excluding de facto  discriminatory treatment." Panel Reports, US – COOL , para. 7.301. On appeal, the 
Appellate Body confirmed that "[a]s under Article III:4, the national treatment obligation of Article 2.1 prohibits both de jure  and de facto  less favourable treatment. That is, 'a measure may be de facto  inconsistent 
with Article 2.1 even when it is origin-neutral on its face.'" Appellate Body Reports, US – COOL , para. 269 
(footnotes omitted) (citing Appellate Body Reports, US – Clove Cigarettes , para. 175; and US – Tuna II 
(Mexico) , para. 225). See also Appellate Body Reports, US – COOL , para. 286. 
202 Appellate Body Reports, US – COOL , para. 286 (footnote omitted) (citing Appellate Body Report, US 
– Tuna II (Mexico) , para. 225 (emphasis original)). 
203 In reviewing the costs of the amended COOL measure, we do not a ddress recordkeeping and 
segregation requirements un der other measures not at issue in this  compliance dispute, e.g. food safety 
measures. Further, we do not address how such other measures, whether mandatory or voluntary, 
might impact or reduce the compliance burden of the amended COOL measure. 
204 The original panel held that "costs of compliance with the requirements [of the original COOL 
measure] arise at every stage of the livestock and meat supply chain, and … these costs increase as livestock and meat move downstream in  the chain." Panel Reports, US – COOL , para. 7.310. 
205 Panel Reports, US – COOL , para. 7.311. 
206 Panel Reports, US – COOL , para. 7.312. 
207 Panel Reports, US – COOL , para. 7.311. 
208 Panel Reports, US – COOL , para. 7.313. 
209 Panel Reports, US – COOL , para. 7.313. 
210 See "Analysis of Benefits and Costs", 2009 Final Rule, pp. 2682 et seq. See also Panel Reports, US – 
COOL , paras. 7.304-7.308. 
211 See "Analysis of Benefits and Costs", 2013 Final Rule, pp. 31377 et seq . WT/DS384/RW • WT/DS386/RW 
 
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  additional costs will be borne by industry partic ipants as they comply with the requirements of 
th[e 2013 F]inal [R]ule".213 
7.77.  However, as in the original dispute, it is "not the costs of the COOL measure in itself that 
the complainants contest."214 Accordingly, we follow the original panel and turn to whether 
"the costs of the [amended] COOL measure are higher for imported than for domestic livestock". 
As explained below, this requires assessin g whether the amended COOL measure involves215 – and 
possibly increases – segregation of meat and livestock according to origin as well as the 
implications of the amended COOL measure for recordkeeping burdens. 
7.5.4.1.2.2  Segregation216 
7.78.  Given the nature and limited extent of relevant changes to the original COOL measure, the 
original panel's analysis of segregation remains generally applicable to the amended COOL 
measure. 
7.79.  Like its predecessor, the amended COOL measure "does not explicitly require segregation, 
let alone the segregation of domestic and imported livestock."217 At the same time, under the 
2013 Final Rule it remains "necessary ... to ensure label information accurately reflects the origin 
of muscle cut covered commodities in accordance with the intent of the statute."218 The 
2013 Final Rule is categorical that, as a basic requirement, " all origin designations for muscle cut 
covered commodities slaughtered in the United States must specify the production steps of birth, 
raising and slaughter of the animal  from which the meat is derived that took place in each country 
listed on the origin designation."219 
7.80.  The COOL statute continues to require th at "[a]ny person engaged in the business of 
supplying a covered commodity to a retailer … provide information to the retailer indicating the 
country of origin of the covered commodity."220 In addition, the original COOL measure's 
recordkeeping requirements and sanctions for violating these221 remain unchanged.222 
7.81.  Thus, the original panel's finding that that the original COOL measure "prescribes an 
unbroken chain of reliable country of origin information with regard to every animal and muscle cut"
223 remains valid for the amended COOL measure. In fact, the 2013 Final Rule refers to the 
                                                                                                                                               
212 According to the 2009 Final Rule, "firms and establ ishments throughout the supply chain for affected 
commodities will incur costs associated with the im plementation of COOL. This includes producers, 
intermediaries, and retailers." 2009 Final Rule, p. 2680 (cited in Panel Reports, US – COOL , para. 7.303). 
213 2013 Final Rule, p. 31375. Likewise, the USDA "recognizes that additional costs will be borne by 
industry participants." 2013 Final Rule, p. 31374. 
214 Panel Reports, US – COOL , para. 7.311. 
215 Panel Reports, US – COOL , para. 7.314. 
216 The Appellate Body "understood the [original p] anel to have used the term 'segregation' to 
encompass a broad range of ac tivities, including physically segregating an imals into different pens or fields or 
identifying each animal through the use of ear tags or other physical markings, temp orally segregating animals 
by processing livestock of different origins on different days or at diffe rent times, and se gregating animals 
completely in the sense of choosing to process only livestock of a single origin." Appellate Body Reports, US – 
COOL , para. 302 (footnotes omitted). We use the term "segregation" in the same sense in these Reports. 
217 Panel Reports, US – COOL , para. 7.315. 
218 2013 Final Rule, p. 31372. 
219 2013 Final Rule, p. 31368 (emphasis added). The 2009 Final Rule did not require Labels A-C to carry 
point-of-production origin information. 
220 COOL statute, § 1638a(e). See also Panel Reports, US – COOL , para. 7.316. 
221 Panel Reports, US – COOL , para. 7.316. 
222 See section 7.3.5 above. 
223 Panel Reports, US – COOL , para. 7.317. WT/DS384/RW • WT/DS386/RW 
 
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  need for, and existing processes224 to, "transfer information from one level of the supply chain to 
the next."225 
7.82.  The original panel's findings on how to ensure the unbroken chain of reliable country of 
origin information226 necessitated by the original COOL measure remain valid for the amended 
COOL measure. The COOL statute continues to prohibit USDA from imposing a "traceability 
program"227 through "a mandatory identification system to verify the country of origin of a covered 
commodity."228 Further, the COOL statute continues to limit the recordkeeping requirements for 
retailers and their suppliers to "records maintained in the normal conduct of the business of such 
person, including animal health papers, import or customs documents, or producer affidavits"229, 
and it continues to explicitly prohibit USDA from requiring retailers and suppliers to maintain any "additional records".
230 As summarized by the 2013 Final Rule: 
the existing COOL regulations already require retailers to maintain records and other 
documentary evidence upon which they have relied to establish a covered commodity's country or countries of origin. Similarly, any person directly or indirectly 
engaged in the business of supplying a covered commodity to a retailer, including 
wholesalers, must make available information to the buyer about the country(ies) of origin of the covered commodity. Thus, to comply with existing COOL regulations, 
wholesalers must already have distribution systems to allow for the tracking of 
COOL-related information for invoices and manifests and receiving procedures to verify the origin information received from packers and processors. This final rule does not alter those requirements … .
231 
7.83.  The original panel held that "a practical way to ensure that the chain of reliable information 
on country of origin required by the COOL meas ure remains unbroken is the segregation of meat 
and livestock according to origin as defined by the COOL measure."232 Despite the parties' 
disagreement, the original panel concluded that "for all practical purposes, the COOL measure 
necessitates segregation of meat and livestock according to origin."233 This finding was upheld on 
appeal.234 
7.84.  The same conclusion continues to apply to the amended COOL measure, which has the 
same features that led the original panel to reach its conclusion regarding segregation. In fact, the 
2013 Final Rule refers to segregation as a fact: "the [2003] regulatory impact analysis accounted for the fact that animals and products would need to be segregated to enable labeling of muscle 
cut covered commodities by country of origin."
235 
7.85.  As with the original COOL measure236, various United States entities and market participants 
have stated that the amended COOL measure will  necessarily lead to segregation in the meat 
                                               
224 For instance, the 2013 Final Rule points out that "[p]rocesses currently in place to transfer 
information from one level of the supply chain to the next  should be sufficient to accommodate the additional 
requirements of this rule." 2013 Final Rule, pp. 31376-31377. 
225 2013 Final Rule, p. 31373. Further, the 2013 Final Rule  states that it "does not lessen any existing 
flexibility in how required country of origin inform ation is currently conveyed along the supply chain." 
2013 Final Rule, p. 31375. 
226 See Panel Reports, US – COOL , para. 7.319. 
227 2009 Final Rule, p. 2679. See also Panel Reports, US – COOL , para. 7.319. 
228 COOL statute, § 1638a(f)(1). See also Panel Reports, US – COOL , para. 7.319. 
229 COOL statute, § 1638(d)(2)(A). See also Panel Reports, US – COOL , para. 7.319. 
230 COOL statute, § 1638(d)(2)(B). See also Panel Reports, US – COOL , para. 7.319. 
231 2013 Final Rule, p. 31374. See also ibid. pp. 31373 and 31382. 
232 Panel Reports, US – COOL , para. 7.320. 
233 Panel Reports, US – COOL , para. 7.327. 
234 The Appellate Body found that "the Panel did not act inconsistently with its duties under Article 11 of 
the DSU in finding that, 'for all practical purposes, the COOL measure necessitates segregation of meat and livestock according to origin, even though this segregat ion is subject to certain flexibilities'." Appellate Body 
Reports, US – COOL , para. 310. 
235 2013 Final Rule, p. 31379. Further, the 2013 Final Rule refers to "costs … of activities such as 
segregation", and notes that, "[a]s at the intermediary level, retail ers may incur additional costs for 
segregation" as a result of the removal of the commingling flexibility. 2013 Final Rule, p. 31380. 
236 Panel Reports, US – COOL , para. 7.325. WT/DS384/RW • WT/DS386/RW 
 
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  supply chain.237 Indeed, the United States itself seems to recognize that, like its predecessor, the 
amended COOL measure involves segregation.238 
7.86.  Accordingly, like the original panel239, we conclude that for all practical purposes, the 
amended COOL measure necessitates segregation of meat and livestock according to origin. 
7.5.4.1.2.3  Increased segregation under the amended COOL measure 
7.87.  The parties disagree on the amended COOL me asure's impact on segregation. In particular, 
the United States contests the complainants' argument that the amended COOL measure involves 
more segregation than the original COOL measure. 
7.88.  As noted240, the COOL measure never formally pr escribed segregation. However, the 
2013 Final Rule introduced three potentially relevant changes: 
a. point-of-production labelling, i.e. the requir ement that Labels A, B, and C show the 
country(ies) where each production step, namely birth, raising, and slaughter, has taken 
place241; 
b. the removal of the commingling242 and country order flexibilities243 of the original COOL 
measure; and 
c. the amended coverage of Label D. 
Point-of-production labelling 
7.89.  As noted244, one of the main changes under the am ended COOL measure is the requirement 
t h a t  L a b e l s  A ,  B ,  a n d  C  i n d i c a t e  t h e  c o u n t r y  o f  e a c h  p r o d u c t i o n  s t e p  ( b o r n ,  r a i s e d ,  a n d  slaughtered).
245 In the USDA's words, point-of-production labelling means that "muscle cut 
covered commodity COOL information will need to be augmented to provide the additional specific 
origin information required by th[e 2013 Final R]ule."246 More specifically, "information available to 
consumers at retail will need to be augmented to include information on the location in which the three major production steps occurred."
247 
                                               
237 See para. 7.135 below. 
238 According to the United States, "with regard to the allegation that the 2013 Final Rule 'compel[s] 
segregation,' it is clear that the only companies that will  have to change any internal procedures are those that 
were already commingling . Companies that already co mpletely segregated A, B,  and C livestock (and the 
resulting meat products) are, of cour se, unaffected by this change in the regulations." United States' first 
written submission, para. 114 (footnotes omitted, emphasis original). Further, according to the United States, "it is impossible to understand why the complaining parties allege that the 2013 Final Rule is increasing 
segregation in such a meaningful way as to affect th eir producers' market access in the United States. By 
making such arguments, the complaining parties appear to allege that the original panel was wrong to find that 
the 2009 Final Rule 'necessitated' segregation, and that, in fact, the commingling flexibility so reduced the need for segregation for the companies that purchased Canadian and Mexican livestock that it could not be 
concluded that the 2009 Final Rule 'necessitated' segregation for those companies." United States' first written submission, paras. 115-116 (emphasis original). The United  States adds that "to credit those arguments based 
on speculation of business impacts would require the compliance Panels to find that the original panel's finding that the 2009 Final Rule 'necessitated' segregation was wrong. The complainants have provided no basis for 
the compliance Panels to revisit and reverse findings ad opted in the original procee ding." United States' first 
written submission, para. 119. 
239 Panel Reports, US – COOL , para. 7.327. 
240 See para. 7.79 above. 
241 2013 Final Rule, § 65.300(d)-(e). See also section 7.3.1.2 above. 
242 See section 7.3.3.1 above. 
243 See section 7.3.3.2 above. 
244 See section 7.3.1.2 above. 
245 See 2013 Final Rule, §§ 65.300(d) and (e), p. 31367. 
246 2013 Final Rule, p. 31378. 
247 2013 Final Rule, p. 31382. WT/DS384/RW • WT/DS386/RW 
 
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  7.90.  A closer look at Labels A-C is necessary for assessing whether, in practice, "provid[ing] 
consumers with more specific information"248 on these labels increases the number of distinct 
labels. We isolate point-of-production labelling to assess whether different origin muscle cuts that could carry a uniform origin label under the original COOL measure would need to carry more, 
distinct labels under the amended COOL measure. As the original panel found, more origins and 
labels means more segregation.
249 
                                               
248 2013 Final Rule, p. 31367. 
249 In the words of the original panel, "it is evident that the more origins and the more types of muscle 
cut labels involved, the more intensive the need for segregation throughout the livestock and meat supply and distribution chain. " Panel Reports, US – COOL , para. 7.331. See also ibid. para. 7.346. The Appellate Body 
upheld this finding. Appellate Body Reports, US – COOL , para. 345. WT/DS384/RW • WT/DS386/RW 
 
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  Label A 
7.91.  As regards Label A, the definition of origin is unchanged; Label A merely needs to be more 
detailed under the amended COOL measure and state, instead of "Product of the U.S."250, 
"Born, Raised, and Slaughtered in the United States"251. Muscle cuts from exclusively US-born, 
-raised and -slaughtered livestock shall carry labels with information about these production steps; 
however, Category A muscle cuts may continue to carry a uniform Label A. 
7.92.  In brief, Label A shall be more detailed, but it may remain a uniform label. As shown in 
Table 3 below, point-of-production labelling in and of itself does not increase the number of labels 
for Category A muscle cuts, and thus does not lead to increased segregation. 
TABLE 3: LABEL A 
Category A 
origin born US 
raised  US 
slaughtered  US 
Label A original 
COOL measure   
 
 
 
amended  
COOL measure   
 
 
 
 
 
Notes to Table 3:   The first label  is taken from  the 
2009 Final Rule, p. 2668. See also Panel Reports, US – COOL , 
para. 7.100.  The second label  is taken from the 2013 Final Rule, 
§ 65.300(d).  
 
 
Label B 
7.93.  Label B may involve livestock of a single foreign origin – in addition to raising252 and 
slaughter in the United States. For instance, Label B may be used for muscle cuts derived from 
animals (i) born in Canada and (ii) raised and sl aughtered in the United States. Under the original 
COOL measure, muscle cuts from livestock "born in Country X … , raised and slaughtered in the United States"
253 ("and … not derived from animals imported for immediate slaughter"254) could be 
designated as "Product of the United States, Country X … ."255 Under the amended COOL measure, 
t h e  s a m e  t y p e  o f  m u s c l e  c u t s  w o u l d  n o w  b e  d e s i g n a t e d  " B o r n  i n  C o u n t r y  X ,  R a i s e d  a n d  
Slaughtered in the United States".256 
7.94.  Thus, like for Label A, the amended COOL measure requires more information on Label B, 
but Category B muscle cuts from livestock born in a single  foreign country, and raised and 
slaughtered in the United States may continue to carry a uniform label. As shown in Table 4 below, 
point-of-production labelling does not increase th e number of labels and, hence, segregation for 
                                               
250 See 2009 Final Rule, p. 2668; and Panel Reports, US – COOL, para. 7.100. 
251 2013 Final Rule, § 65.300(d). 
252 A distinct characteristic of Category B origin under  the 2013 Final Rule is that animals in that origin 
category need to be not only slaughte red but also raised in the United St ates. Otherwise, muscle cuts derived 
from such animals would be imported fo r immediate US slaughter, and thus qualify for Label C. This is also 
confirmed by the multiple countries of raising flexibility , applicable to Label B, and allowing for omitting the 
"other" country or countries of raising but not the United States. 2013 Final Rule, § 65.300(e). See also the 
examples of Label B taken from the amended COOL measur e in Table 2, each of which mentions US raising. 
253 2009 Final Rule, § 65300(e)(1). 
254 2009 Final Rule, § 65300(e)(1). 
255 2009 Final Rule, § 65300(e)(1). 
256 2013 Final Rule, § 65300(e). Product of 
the U.S.  
Born, Raised, and 
Slaughtered in the 
United States WT/DS384/RW • WT/DS386/RW 
 
- 58 - 
 
  Category B muscle cuts of a single foreign origin in addition to raising and slaughter in the 
United States (Scenario B1). 
7.95.  This is also applicable to Category B muscle cuts from livestock of a single foreign origin, 
born and also raised in the foreign country of birth, i.e. muscle cuts from livestock (i) born and 
raised in Country X; and (ii) raised and slaughtered in the United States. In the absence of point-
of-production labelling, these muscle cuts could also carry the "Product of the United States, Country X … "
257 label under the original COOL measure.258 Under the amended COOL measure, 
these muscle cuts could now carry the "Born in Country X, Raised and Slaughtered in the 
United States"259 label because of the multiple countries of raising flexibility.260 In light of this 
flexibility261, point-of-production labelling does not result in more segregation for Category B 
muscle cuts raised in both the foreign country of birth and in the United States. 
TABLE 4: LABEL B ON CATEGORY B MUSCLE  CUTS OF A SINGLE FOREIGN ORIGIN 
 Scenario B1 
Category B 
single foreign origin born Country X 
raised  (Country X) 
United States 
slaughtered  United States 
Label B original 
COOL measure   
 
 
 
 
amended  
COOL measure   
 
 
 
 
 
 
Notes to Table 4:    The first label  is taken from  the 
2009 Final Rule, § 65.300(e)(1).   The second label  is taken 
from the 2013 Final Rule, p. 31368, and § 65.300(e), including the multiple countries of raising flexibility. 
 
 7.96.  There is also the possibility of Category B muscle cuts being derived from livestock of 
multiple  foreign origins in addition to US raising and slaughter. For instance, the 2009 Final Rule 
addressed muscle cuts from livestock "born in Country X or (as applicable) Country Y, raised and slaughtered in the United States"
262 ("and … not derived from animals imported for immediate 
slaughter"263). 
                                               
257 2009 Final Rule, § 65300(e)(1). 
258 This would not change with the multiple countries of  raising flexibility of the original COOL measure – 
given that, despite US raising "tak[ing] precedence" over raising in the foreign country of birth, this latter country would still need to be mentioned on the label. See 2009 Final Rule, pp. 2659-2662, and section 7.3.3.3 above. 
259 2013 Final Rule, § 65300(e). 
260 According to the 2013 Final Rule, "[i]f an animal is raised in the United States as well as another 
country (or multiple countries), the raising occurring in the other country (or countries) may be omitted from 
the origin designation except if the animal was import ed for immediate slaughter … or where by doing so the 
muscle cut covered commodity would be designated as having United States country of origin." 
2013 Final Rule, § 65.300(e). See section 7.3.3.3 above. 
261 In any event, as the 2013 Final Rule explains in regard to both the original and amended forms of 
this flexibility, "it is understood that  an animal born in another country will  have been raised at least a portion 
of its life in that other country." 2013 Final Rule, p. 31368. 
262 2009 Final Rule, § 65.300(e)(1). 
263 2009 Final Rule, § 65.300(e)(1). Product of the 
United States, 
Country X 
Born in Country X, 
Raised and 
Slaughtered in the 
United States WT/DS384/RW • WT/DS386/RW 
 
- 59 - 
 
  7.97.  Under this scenario (Scenario B2), 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 slaughtered in the United States. This scenario therefore represents a combination of livestock from two different foreign countries of origin, 
which fall within Category B.
264 
7.98.  According to the 2009 Final rule, the two types of muscle cuts in this scenario could be 
designated as "Product of the United States, Country X, and … Country Y." Conversely, under the 
2013 Final Rule, these two types of muscle cuts would need to carry distinct labels to reflect their 
different countries of origin. 
7.99.  As shown in Table 5 below, segregation increases as a result of point-of-production labelling 
under this scenario (Scenario B2) – even taking into consideration the multiple countries of raising 
flexibility under the amended COOL measure.265 
TABLE 5: LABEL B ON CATEGORY B MUSCLE  CUTS OF DIFFERENT FOREIGN ORIGINS 
  Scenario B2 
Category B 
multiple 
foreign 
origins born Canada Mexico 
raised  Canada 
US Mexico 
US 
slaughtered  US US 
Label B original COOL measure 
(irrespective of country 
of raising flexibility)   
 
 
 
 
 
amended 
COOL measure 
without multiple countries 
of raising flexibility   with multiple countries 
of raising flexibility   
 
 
                                               
264 2009 Final Rule, § 65.300(e)(1). In a certain way, this was a type of commingling. Commingling was 
more closely associated with scenarios of mixing cove red commodities of different  origin categories (e.g. 
muscle cuts Category A with B, Category B with C, re spectively). See 2013 Final Rule, footnote 7; and footnote 
99 above. However, the 2009 Final Rule defines "commingled covered commodities" 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 ." 2009 Final Rule, § 65.125 (emphasis added). Arguably, this could also cover 
muscle cuts of different origins within the same origin category. 
265 See section 7.3.3.3 above. Product of the 
United States, 
Canada, and 
Mexico  
Born in 
Canada, 
Raised and 
Slaughtered in 
the U.S. Born in 
Mexico, 
Raised and 
Slaughtered 
in the U.S. Born and 
Raised in 
Canada, 
Raised and 
Slaughtered 
in the U.S. Born and 
Raised in 
Mexico, 
Raised and 
Slaughtered 
in the U.S.  WT/DS384/RW • WT/DS386/RW 
 
- 60 - 
 
  7.100.  Another multiple foreign-origin scenario (Scenario B3) might entail Category B muscle cuts 
from livestock raised in more than one foreign country in addition to being raised (and slaughtered) in the United States. This would involve livestock (i) born in Country X; (ii) raised in Country X, Country Y, and the United States; and (iii) slaughtered in the United States. Arguably, 
absent point-of-production labelling, the Label B und er this scenario could also read "Product of 
the United States, Country X, and … Country Y"
266 under the original COOL measure.267 
7.101.  As shown in Table 6 below, the same type of muscle cuts could also carry a uniform but 
more detailed Label B under the amended COOL measure (Scenarios B3a and B3b taken 
separately).268 
7.102.  The situation is different regarding Category B muscle cuts from livestock (i) born in two 
different foreign countries; (ii) raised in the same  two foreign countries and the United States; and 
(iii) slaughtered in the United States. Taking the example of a Category B muscle cut of US, 
Canadian, and Mexican origin, a uniform 'North American' label ("Product of the United States, Canada, and Mexico") could have been affixed on all of these muscle cuts under the original COOL 
measure. This is no longer possible under the amended COOL measure's point-of-production 
labelling. As shown in Table 6, distinct labels for these Category B muscle cuts would need to be affixed according to where each production step took place (Scenarios B3a and B3b taken 
together)
269 – even taking into consideration the multiple countries of raising flexibility under the 
amended COOL measure.270 
                                               
266 2009 Final Rule, § 65.300(e)(1). Again, this would be a type of intra-Category commingling in the 
manner described above. See footnote 264 above. 
267 As noted, this would not change with the multiple countries of raising flexibility of the original COOL 
measure given that, despite US raising "tak[ing] precedence " over raising in the foreig n country of birth, this 
latter country would still need to be mentioned on the label. See 2009 Final Rule, pp. 2659-2662, and section 7.3.3.3 above. 
268 This label could show each country of raising (e.g . "Born in Country X, Raised in Country X, Country 
Y and the United States, and Slaughtered in the United States") or only the United States, depending on whether the multiple countries of raising flexibility is being used on Label B. 
269 This also applies to muscle cuts from US-born and -slaughtered animals raised in both the 
United States and a foreign country. Under the origin al COOL measure, the relevant Label B would read 
"Product of the United Stat es and Country X". The same Label B could cover Category B muscle cuts involving 
the same two countries but for different  production steps, e.g. muscle cuts  born in Country X, and raised and 
slaughtered in the United States. Point-of-production labelling means that these two types of muscle cuts 
would need to carry distinct labels under the amended COOL measure. In particular, muscle cuts from US-born 
and -slaughtered animals raised in both the United St ates and a foreign country would carry the label "Born 
and Raised in the United States, Raised in Country X, Slaughtered in the United States." 2013 Final Rule, 
p. 31368. 
270 See section 7.3.3.3 above. WT/DS384/RW • WT/DS386/RW 
 
- 61 - 
 
  TABLE 6: LABEL B ON CATEGORY B MUSCLE CUTS 
OF DIFFERENT MULTIPLE FOREIGN ORIGINS 
  Scenario B3a Scenario B3b 
Category B 
multiple 
foreign 
origins born Canada Mexico 
raised  Canada 
Mexico 
US Mexico 
Canada 
US 
slaughtered  US US 
Label B original COOL measure  
(irrespective of country 
of raising flexibility)   
amended 
COOL measure 
Without multiple countries 
of raising flexibility   With multiple countries 
of raising flexibility   
 Product of the 
United States, 
Canada, and 
Mexico  
Born in Canada, 
Raised in Canada, 
Mexico and the 
U.S., and 
Slaughtered in 
the U.S. Born in Mexico, 
Raised in Mexico, 
Canada and the 
U.S., and 
Slaughtered in 
the U.S. 
Born in Canada, 
Raised and 
Slaughtered in 
the U.S.  Born in Mexico, 
Raised and 
Slaughtered in 
the U.S. WT/DS384/RW • WT/DS386/RW 
 
- 62 - 
 
   
Label C 
7.103.  Like for Label B, for Label C we address scenarios involving livestock with single and multiple foreign origins which, pursuant to the Category C definition, are imported for immediate 
slaughter into the United States. 
7.104.  For single foreign-origin Category C muscle cuts, under the amended COOL measure, 
Label C would read "Born and Raised in Country X, Slaughtered in the United States"
271 instead of 
"Product of Country X and the United States".272 Despite the more detailed information, 
Category C muscle cuts of a single foreign origin can thus continue to carry a uniform label under the amended COOL measure. As shown in Table 7 below, there is no increase in the number of labels or in segregation for single foreign-origin Category C muscle cuts as a result of point-of-
production labelling. 
TABLE 7: LABEL C ON CATEGORY C MUSCLE CUTS OF A SINGLE FOREIGN ORIGIN 
  Scenario C1 
Category C 
single foreign 
origin born Country X 
raised  Country X 
immediately  
slaughtered  US 
Label C original 
COOL measure   
 
 
 
 
amended 
COOL measure   
 
 
 
 
 
 
Notes to Table 7:    The first label  is taken from  the 
2009 Final Rule, § 65.300(e)(3).   The second label  is taken 
from the 2013 Final Rule, § 65.300(e) and pp. 31368-31369. 
 
 
7.105.  Turning to Category C muscle cuts of multiple foreign origins, muscle cuts from two different single  foreign-origin Category C animals had to carry two distinct labels under the original 
COOL measure.
273 Muscle cuts from livestock born and raised in Canada, and muscle cuts of 
livestock born and raised in Mexico (both imported for immediate slaughter in the United States) 
would carry two distinct labels under the amended COOL measure. 
                                               
271 2013 Final Rule, § 65.300(e) and pp. 31368-31369. 
272 2009 Final Rule, § 65.300(e)(3). 
273 We do not think that a single 'North American' La bel C could be affixed on the two different single-
origin Category C livestock of Scenario C2 under the original COOL measure. The original COOL measure defined "commingled covered commodit ies" 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." 
2009 Final Rule, § 65.125. Although this might cover muscle  cuts of different origins within the same origin 
category, we do not think this was possible for Catego ry C. Unlike for Label B, the original COOL measure 
determines Label C by reference to single foreign orig in as "Product of Country  X and the United States".
 
2009 Final Rule, § 65.300(e)(3). Further, the COOL statute foresees Label C of a single foreign origin by 
prescribing that labels on muscle cuts  imported for immediate slaughter "sha ll designate the origin … as (i) the 
country from which the animal was imported; and (ii) th e United States." COOL statute, § 1638a(2)(c). In any 
event, even if this type of intra-category commingl ing was possible for two different single foreign-origin 
Category C muscle cuts, point-of-p roduction labelling means that unde r the amended COOL measure, these 
two types of muscle cuts need to ca rry two different Category C labels depending on the an imal's place of 
birth. Product of Country X 
and the United States 
Born and Raised in 
Country X, 
Slaughtered in the 
United  States  WT/DS384/RW • WT/DS386/RW 
 
- 63 - 
 
  7.106.  As shown in Table 8 below, no increase in the number of labels or in segregation is 
involved in this scenario (Scenario C2) as a result of point-of-production labelling. 
TABLE 8: LABEL C ON CATEGORY C MUSCLE CUTS OF DIFFERENT FOREIGN ORIGINS 
  Scenario C2  
Category C 
single 
foreign 
origin born Canada Mexico 
raised  Canada Mexico 
immediately  
slaughtered  US US 
Label C original 
COOL measure   
amended 
COOL measure   
 
 
7.107.  Another multiple foreign-origin scenario might entail Category C muscle cuts from livestock 
(i) born and raised in a foreign country; (ii) also raised in a second foreign country; and (iii) imported for immediate slaughter to the United States. Using the same two foreign countries, 
there are four potential scenarios depending on whether the animals were born in Country X or Y, 
and in what sequence they were raised in these two countries (Scenarios C3-C6). 
7.108.  The sequence of countries of raising might be relevant because of the parties' 
disagreement on which countries of raising need to  be labelled for Category C muscle cuts from 
livestock raised in more than one country.
274 The 2013 Final Rule requires, as a general rule, that 
"Muscle Cut Covered Commodities of Multiple Countries of Origin from Animals Slaughtered in the United States" be "labelled to specifically identify the production steps occurring in each 
country".
275 Specifically, "the origin designation for muscle cut covered commodities derived from 
animals imported for immediate slaughter [i.e. Category C muscle cuts] … is required to include information as to the location of the three production steps."
276 However, under the 
2013 Final Rule, "the country of raising for animals imported for immediate slaughter … shall be 
designated as the country from which they were imported (e.g. 'Born and Raised in Country X, Slaughtered in the United States')."
277 Further, the COOL statute fore sees Category C labels listing 
a single  foreign origin by prescribing that labels on muscle cuts imported for immediate slaughter 
"shall designate the origin … as (i) the country from which the animal was imported; and (ii) the 
United States."278 
7.109.  If the 2013 Final Rule precludes countrie s other than the country of export from being 
listed as the country of raising, there are more labels and thus more segregation under the 
amended COOL measure for Scenarios C3-C6. This is illustrated in the second to bottom row of Table 9 below. 
7.110.  Alternatively, if the 2013 Final Rule permits countries of raising other than the country of 
immediate import on Label C – and provided the countries of raising do not have to be listed in strict chronological order – the label could be arranged so as to retain the same number  of distinct 
                                               
274 See paras. 7.245-7.254 below. 
275 2013 Final Rule, § 65.300(e). 
276 2013 Final Rule, pp. 31368-31369. 
277 2013 Final Rule, p. 31369. 
278 COOL statute, § 1638a(2)(c). Product of 
Canada and 
the U.S.  Product of 
Mexico and 
the U.S. 
Born and 
Raised in 
Canada, 
Slaughtered 
in the U.S. Born and 
Raised in 
Mexico, 
Slaughtered 
in the U.S. WT/DS384/RW • WT/DS386/RW 
 
- 64 - 
 
  labels as under the original COOL measure, namely two distinct labels covering the four separate 
scenarios. This is illustrated in the bottom row of Table 9 below with the potentially overlapping labels having matching backgrounds.
279 
TABLE 9: LABEL C ON CATEGORY C MUSCLE CUTS 
OF DIFFERENT MULTIPLE FOREIGN ORIGINS 
Scenarios C3 C4 C5 C6 
Category C 
multiple 
foreign 
origins born Mexico Canada Mexico Canada 
raised* Mexico 
Canada Mexico 
Canada Canada 
Mexico Canada 
Mexico 
immediately 
slaughtered US US US US 
Label C original 
COOL measure   
amended 
COOL measure 
country of raising = 
country of immediate import   
  
  if additional countries of 
raising may be shown     
* Countries listed in chronological order of raising. 
                                               
279 As noted, the parties agree that  the country order flexibility of  the original COOL measure was 
abandoned, and no party raises such a flexibility in the context of the amended COOL measure or specifically in 
regard to Scenarios C3-C6. Born and 
Raised in 
Canada, 
Slaughtered 
in the U.S. Born and 
Raised in 
Mexico, 
Slaughtered 
in the U.S.  Born in 
Canada, 
Raised in 
Mexico, 
Slaughtered 
in the U.S. Born in 
Mexico, 
Raised in 
Canada, 
Slaughtered 
in the U.S. Product of 
Canada and 
the U.S.  Product of 
Mexico and 
the U.S.  
Born and 
Raised in 
Mexico, 
Raised in 
Canada, 
Slaughtered 
in the U.S. Born and 
Raised in 
Canada, 
Raised in 
Mexico, 
Slaughtered 
in the U.S. Born and 
Raised in 
Canada, 
Raised in 
Mexico, 
Slaughtered 
in the U.S.  Born and 
Raised in 
Mexico, 
Raised in 
Canada, 
Slaughtered 
in the U.S. WT/DS384/RW • WT/DS386/RW 
 
- 65 - 
 
   
Conclusion 
7.111.  In light of the above, we conclude that point-of-production labelling, as prescribed by the 
amended COOL measure, in and of itself in creases the number of distinct labels for: 
a. Category B muscle cuts of different foreign origins (Scenario B2 – Table 5) – irrespective 
of the multiple countries of raising flexibility under the amended COOL measure; 
b. Category B muscle cuts of different, multiple foreign origins (Scenarios B3a and B3b 
taken together – Table 6) – irrespective of the multiple countries of raising flexibility 
under the amended COOL measure; and 
c. 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 (Scenarios 
C3-C6 taken together – Table 9) – if only th e country of immediate import can be shown 
as the country of raising on the label.280 
7.112.  As mentioned, under the amended COOL measure more labels still mean more 
segregation.281 As a result of the unchanged requirement for an unbroken chain of reliable country 
of origin information, segregation of the downstream product (muscle cuts) necessarily entails segregation of the upstream product (livestock).
282 The increase in the number of distinct labels 
for the above three types of muscle cuts also entails more segregation for the relevant types of 
muscle cuts and the originating livestock. 
7.113.  We also conclude that, compared with the original COOL measure, point-of-production 
labelling in and of itself does not affect the number of labels for other types of Category B and C 
muscle cuts, and for Category A muscle cuts in general. In other words, point-of-production 
labelling under the amended COOL measure does not directly increase or decrease segregation for these types of muscle cuts and the originating livestock. 
                                               
280 As we are reviewing differences in the design and structure of the original and amended COOL 
measures to assess increased segregation, we reach th ese conclusions without assessing the probabilities of 
the various hypothetical scenarios. We also disregard the abbreviation flexibilities under the original and 
amended COOL measures, as these ha ve no direct implications for un derstanding whether there is an 
increased number of distinct labels. 
281 See Panel Reports, US – COOL , paras. 7.331 and 7.346. 
282 According to the original panel, "the COOL measure requires labelling of meat based on the origin of 
an animal from which meat is derive d, and upstream stages of livestock  and meat production are directly 
relevant for determining the orig in of meat." Panel Reports, US – COOL , para. 7.315. See also ibid. 
para. 7.316. As the USDA noted in the context of the orig inal COOL measure, "[p]roducers of cattle[ and] hogs 
… while not directly covered by [the 2009 Final Rule], will nevertheless be affected because covered meat commodities are produced from livestock." 2009 Final Rule, p. 2695. WT/DS384/RW • WT/DS386/RW 
 
- 66 - 
 
  Removal of the two flexibilities und er the original COOL measure 
7.114.  In the original dispute, commingling between products eligible for Labels A and B, and 
Labels B and C, respectively, was found to have only partially mitigated the segregation necessitated by the original COOL measure.
283 The flexibility of listing countries of origin in any 
order on Category B and commingled muscle cuts had a similar effect.284 
7.115.  As shown in Table 2, these two flexibilitie s – applied cumulatively – meant that under the 
original COOL measure a uniform label could cover muscle cuts from livestock of possibly three 
different origins: 
a. muscle cuts from livestock born, raised, and slaughtered in the United States; 
b. muscle cuts from livestock raised, and slaughtered in the United States, and born 
elsewhere; and 
c. muscle cuts from livestock imported into the United States for immediate slaughter after 
being born and raised elsewhere. 
7.116.  Put differently, as a combined result of the commingling and country order flexibilities, it 
was possible to affix a uniform label on the followin g four different types of Category A, B, and C 
muscle cuts: 
a. commingled muscle cuts from Category A and B animals; 
b. muscle cuts from Category B animals; 
c. commingled muscle cuts from Category B and C animals; and 
d. muscle cuts from Category C animals; 
7.117.  This is shown in the shaded parts on the left-hand side of Table 10 below, using the 
2009 Final Rule's label example "Product of Canada, U.S.".285 
7.118.  This diverse applicability of the same, uniform label was due to the commingling and 
country order flexibilities under the original CO OL measure. As these two flexibilities are now 
removed, the four specific types of muscle cuts (shaded on the left) derived from the three 
different origins of livestock (shaded in the middle) must always carry distinct labels under the amended COOL measure, as shown (shaded on the right) in Table 10 below. 
                                               
283 Panel Reports, US – COOL , para. 7.327. See also Appellate Body Reports, US – COOL , para. 310. 
284 As the Appellate Body held, "[m]eat derived from animals born outside the United States but raised 
and slaughtered in the United States (Category B meat) mu st 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 Ca tegories B and C meat could 
look the same in practice."  Appellate Body Reports, US – COOL , para. 245. 
285 2009 Final Rule, p. 2661. As the country order flexibility did not apply to non-commingled Label C 
muscle cuts under the 2009 Final Rule, the "Product of U. S., Canada" label could not be affixed to such muscle 
cuts. See 2009 Final Rule, p. 2662 and § 65.300 (e)(4). See also Panel Reports, US – COOL, para. 7.697; 
Appellate Body Reports, US – COOL, para. 245. In any event, in light  of the country order flexibility, the 
"Product of U.S., Canada" label could be affixed to: (i) commingled Category A and B muscle cuts; (ii) Label B 
muscle cuts; and (iii) commingled  Category B and C muscle cuts. WT/DS384/RW • WT/DS386/RW 
 
- 67 - 
 
  TABLE 10: MORE LABELS AS A RESULT OF THE COMMINGLING 
AND COUNTRY ORDER FLEXIB ILITIES BEING REMOVED 
ORIGINAL COOL MEASURE  LIVESTOCK 
OF DIFFERENT 
ORIGIN 
CATEGORIES  AMENDED COOL MEASURE 
Single label 
(for shaded parts) Types of 
muscle cuts  Types of 
muscle cuts  Distinct labels 
 
    eligible for Label A, 
not commingled  
Category A 
 
US-born 
US-raised 
US-slaughtered  eligible for Label A  
 
 
 
 
 
 
 
 eligible for Labels A 
and B, commingled  
(listed in any order)  
Category B 
 
Canadian-born 
US-raised 
US-slaughtered  eligible for Label B  
eligible for Label B, 
not commingled 
(listed in any order)  
eligible for Labels B 
and C, commingled  
(listed in any order)   
Category C 
 
Canadian-born 
Canadian-raised 
and imported 
for immediate  
US slaughter 
 eligible for Label C  
eligible for label C, 
not commingled 
 
Notes to Table 10:   The first label on the left  is taken from  the 2009  Final Rule p. 2668. See also Panel Reports, US – 
COOL , para. 7.100.   The label in the shaded area on the left  is taken from the 2009 Final Rule, p. 2662.   The three 
labels on the right  follow the general provisions of the amended COOL measure.  
 
 7.119.  The same conclusion applies also to th e three main types of livestock and muscle cut 
origins in the US market – namely, exclusively US -origin (i.e. Category A) muscle cuts, and single 
foreign-origin muscle cuts of Categories B and C (i.e. muscle cuts from US-slaughtered Mexican feeder and Canadian fed cattle) – taken together. 
7.120.  Due to the commingling and country order flexibilities under the original COOL measure, 
a uniform 'North American' label ("Product of Canada, Mexico and the United States") could previously be affixed on all of these muscle cuts . Conversely, as shown in Table 11 below, absent 
the commingling and country order flexibilities, these three types of muscle cuts need to carry 
three distinct labels under the amended COOL measure. Born, Raised 
and 
Slaughtered 
in the U.S.  
Product 
of 
Canada, 
U.S. Born in 
Canada, 
Raised and 
Slaughtered 
in the U.S.  
Born and 
Raised in 
Canada, 
Slaughtered 
in the U.S. Product of 
the U.S.  WT/DS384/RW • WT/DS386/RW 
 
- 68 - 
 
  TABLE 11: MORE LABELS FOR MUSCLE CUTS FROM MEXICAN FEEDER 
AND CANADIAN FED CATTLE AS A RESULT OF THE COMMINGLING 
AND COUNTRY ORDER FLEXIB ILITIES BEING REMOVED 
  Category A Category B Category C 
 born US Mexico Canada 
raised US US Canada 
slaughtered US US US 
original COOL measure 
 
(in light of commingling and 
country order flexibilities)   
amended COOL measure 
 
(absent commingling and 
country order flexibilities) 
    
  7.121.  The parties disagree on the extent of the removed commingling flexibility. According to the 
Mexico, in practice many operators in the United States commingled.
286 According to Canada, the 
slaughterhouses that were accepting Canadian cattle and hogs under the 2009 Final Rule likely took advantage of the commingling flexibility, whereas under the amended COOL measure 
"when Canadian cattle and hogs are processed at th ese slaughterhouses, they will no longer be 
eligible for commingling.
287 Conversely, the United States contends that only few individual meat 
processors were commingling.288 The parties held inverted positions on the prevalence of 
commingling in the original dispute.289 
7.122.  The original panel reviewed evidence on the practice and extent of commingling290, 
and concluded that "[a]lthough it appears that some commingling is taking place, it is difficult to establish its precise extent."
291 Based on a letter from the American Meat Institute referenced by 
all three parties in the original dispute, the original panel added: 
even by the US meat industry's calculations, only some 5% of domestic meat might 
actually be commingled with imported meat. However, this evidence is silent on 
whether in practice less than 5% of domestic meat ends up being commingled. It does 
not specify either in what proportion such domestic meat might be commingled with 
                                               
286 Mexico's second written submission, para. 44. 
287 Canada's response to Panel question B, paras. 215-216. 
288 United States' first written submission, paras. 29-30, 115-116, and 177. 
289 In the original proceedings, the United States asserted that evidence "indisputably show[ed] 
significant use of the commingling provisions". The United  States also alleged "occurrence of commingling on a 
widespread basis". Appellate Body Reports, US – COOL , paras. 27 and 296. The comp lainants contended that 
figures provided by the United States on Label A "are too low and that those on co mmingling are exaggerated". 
Panel Reports, US – COOL , para. 7.370. Mexico asserted that United States did "not clearly demonstrate [the 
occurrence] of commingling" and that the original "[p]anel's conclusion that the evidence did not provide compelling proof of the occurrence or extent of commingling is, therefore, 'entirely reasonable'". 
Appellate Body Reports, US – COOL , para. 298. 
290 See Panel Reports, US – COOL , paras. 7.364-7.368. The Appellate Body rejected the United States' 
appeal against the original panel's review of the evid ence on commingling. According to the Appellate Body, 
"[b]ased on the Article 11 standard articulated above,  we do not believe that the Panel's determinations 
regarding segregation and commingling evince a failure to assess the facts objectively." Appellate Body Reports, US – COOL , para. 310. 
291 Panel Reports, US – COOL , para. 7.364. Born in 
Mexico, 
Raised and 
Slaughtered 
in the U.S.  Born and 
Raised in 
Canada, 
Slaughtered 
in the U.S.  Product of Canada, Mexico 
and the United States 
Born, Raised 
and 
Slaughtered 
in the U.S. WT/DS384/RW • WT/DS386/RW 
 
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  imported meat, i.e. the quantities and shar e of non-US origin meat involved in any 
commingling.292 
7.123.  In general, the complainants rely on witness statements to seek to prove that the 
elimination of the commingling flexibility "ha[s] significant impact on [processors'] plants"293 and 
"almost certainly … [leads] to distinct breaks in production".294 However, the complainants do not 
submit a list of identified enterprises that co mmingle or the extent of commingling by these 
entities. When asked to provide the number or share of commingling operators, Canada refers to a 
potential range of commingling calculated by the USDA295, and to cattle and hog procurement 
maps that do not provide direct data on the extent of commingling.296 Mexico has no official 
statistics on commingling.297 Instead, Mexico relies on statements illustrating the refusal of certain 
US producers to process imported meat298, reduced demand for Mexican cattle299, and other 
negative effects allegedly associated with the elimination of commingling.300 These statements do 
not specify the actual use of commingling or the extent thereof. 
7.124.  The United States relies on the comments the USDA received on the proposed 2013 Final 
Rule concerning the actual extent of commingling, according to which only three beef processors 
and no pork processors confirmed that they commingled.301 Conversely, in its comments on the 
proposed 2013 Final Rule, the American Meat Institute stated that there were at least fifteen large 
cattle slaughter plants and at least six hog slaughte r facilities in the United States that processed 
mixed origin livestock.302 Similarly, Mexico submits a statement of nine meat processors, "many" 
of which claim having practised commingling.303 While these statements show the existence of 
commingling, they do not quantify its extent in the US market. 
7.125.  As regards the actual extent of commingling under the amended COOL measure, 
the United States relies on estimates made by the USDA in the 2013 Final Rule, which conclude that the extent of commingling in the US meat industry is between 5% and 20%, and that actual 
commingling likely fell closer to the lower end of 5%.
304 Canada also relies on the USDA estimates 
of 5% and 20%.305 According to Mexico, the removal of commingling affected 18-21% of beef 
products sold in the US.306 
7.126.  Based on the above, like the original panel307, we conclude that it appears that some 
commingling was taking place before the amended COOL measure both for cattle and hogs and resulting muscle cuts, but it is difficult to establish its precise extent. In light of the parties' arguments, we can only conclude that the use of the commingling flexibility did not exceed the 
rough estimate of 20% in the livestock and meat industry. However, we are unable to establish 
the share of commingling with any more specificity. 
                                               
292 Panel Reports, US – COOL , para. 7.365. 
293 Exhibit MEX-21, p. 3. 
294 Exhibit CDA-23, p. 5. 
295 Canada's response to Panel question B, para. 215; 2013 Final Rule, p. 31368. 
296 See Exhibits CDA-116 and CDA-117. The maps provided by Canada demonstrate changes in policies 
of certain cattle and hog facilities with respect to thei r acceptance of Category B and C cattle. However, these 
data do not allow the Panel to identify the exact extent of commingling either in the mentioned facilities, or in 
the US meat industry in general. In response to the Panel's request for cl arification, Canada admits that the 
described slaughterhouses only "likely" took advantag e of commingling. See Canada's response to Panel 
question B. 
297 Mexico's response to Panel question B, para. 211. 
298 Mexico's response to Panel question B, para. 211. See also Exhibit MEX-56. 
299 Mexico's response to Panel question B, para. 212. See also Exhibit MEX-24. 
300 Mexico's response to Panel question B, paras. 213-217. 
301 United States' first written submission, para. 29 (citing Exhibit CDA-13, p. 15648). 
302 Exhibit CDA-23, p. 6. 
303 Mexico's second written submissi on, para. 44 (citing Exhibit MEX-24). 
304 United States' first written submission, para. 31. In the original proceedings, the United States 
contended that "approximately 22 percent of beef sold and 4 percent of the pork sold in the United States is 
derived from commingled livestock or  meat." Appellate Body Reports, US – COOL , para. 27. 
305 Canada's response to Panel question B, para. 215. 
306 Mexico's first written submission, para. 137. 
307 Panel Reports, US – COOL , para. 7.364. As noted above, "any implications for competitive conditions 
discernible from the design and structure of the measur e itself … may potentially be relevant" for assessing 
less favourable treatment under Article 2.1. Appellate Body Reports, US – COOL , para. 286. WT/DS384/RW • WT/DS386/RW 
 
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  7.127.  As to the country order flexibility, the parties do not address its extent. Absent arguments 
and evidence, we cannot determine its extent either. In any event, we need not do so.308 For the 
purpose of comparing the design and structure of the original and amended COOL measures, 
it suffices to conclude that both the commingling and country order flexibilities were clearly 
available possibilities under the original COOL me asure, and that these have now been eliminated. 
Having removed these flexibilities, the amended COOL measure leads to increased segregation for US-slaughtered livestock and resulting muscle cuts.
309 
Amended coverage of Label D 
7.128.  The 2013 Final Rule changed the coverage of Category D. As explained310, under the 
2009 Final Rule, Category D extended 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 ".
311 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".
312 
7.129.  The complainants do not challenge the amended COOL measure as regards imported 
muscle cuts from foreign-slaughtered livestock (Category D). As Canada explains, it "has not 
challenged the WTO-consistency of Label D under the COOL measure"313, and "does not make 
claims of inconsistency of the provision of the amended COOL measure pertaining to the labelling of muscle cuts of foreign origin imported into the United States (referred to as Label D)."
314 
Likewise, "Mexico is not challenging Label D."315 
7.130.  For the sake of completeness and in light of the parties' arguments316, we nonetheless 
briefly review whether the amended coverage of Label D may lead to an increase in the number of distinct labels. 
7.131.  The change in coverage of Label D means that, under the amended COOL measure, 
Label D can cover muscle cuts from livestock of  possibly four different origins depending on 
whether – prior to foreign slaughter – birth and/or raising took place in the foreign country and/or 
the United States, namely: 
a. livestock born, raised, and slaughtered outside the United States (Scenario D1); 
b. livestock born outside the United States, raised in the United States, and slaughtered 
elsewhere (Scenario D2); 
c. livestock born in the United States, and raised and slaughtered elsewhere (Scenario D3); 
and 
d. livestock born and raised in the United States, and slaughtered elsewhere (Scenario D4). 
7.132.  However, because Label D continues to indicate only the place of slaughter
317, this change 
does not entail any increase in the number of labels, as shown in Table 12 below. Although muscle 
                                               
308 Appellate Body Reports, US – COOL , para. 286 (footnote omitted) (citing Appellate Body Report, US 
– Tuna II (Mexico) , para. 225) (emphasis original). 
309 As regards label accuracy, see section 7.5.4.2.4.3 below. 
310 See para. 7.15 above. 
311 2009 Final Rule, § 65.300(f) (emphasis added). 
312 2013 Final Rule, § 65.300(f)(2) (emphasis added). 
313 Canada's comments on the United Stat es' response to Panel question No. 78. 
314 Canada's response to Panel question No. 47. 
315 Mexico's response to Panel question No. 47. 
316 See United States' response to Panel question No. 3; Canada's response to Panel question No. 3 and 
comments on the United States' re sponse to Panel question No. 3. 
317 Unamended, the COOL statute describes Category D muscle cuts as those "derived from an animal 
that is not born, raised, or slaughtered in the United States", and requires design ating "a country other than 
the United States as the country of origin of such commodity." COOL statute, § 1638a(2)(D). As noted above, the 2013 Final Rule leaves the definition of Category D muscle cuts unchanged, maintaining the direct link to 
 WT/DS384/RW • WT/DS386/RW 
 
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  cuts from livestock of three of the above four di fferent origins were not covered by Label D under 
the 2009 Final Rule (Scenarios D2-D4)318, under the 2013 Final Rule all four categories can use the 
same label as that permitted under the original COOL measure. 
TABLE 12: CHANGE IN COVERAGE OF LABEL D 
 Scenarios D1 D2 D3 D4 
 born Country X Country X US US 
raised Country X US Country X US 
slaughtered Country X Country X Country X Country X 
Label D original 
COOL measure  
 
not 
  
applicable 
amended 
COOL measure 
 
 
Conclusion on segregation 
7.133.  We have reviewed the design and structure319 of the amended COOL measure with respect 
to the need for segregation. Like the original panel320, we have concluded that for all practical 
purposes, the amended COOL measure necessitates segregation of meat and livestock according 
to origin.321 
7.134.  We have also reviewed the changes in the COOL measure's design and structure322 to 
compare the amended COOL measure's impact on segregation with that of the original COOL 
measure. In light of this, we have concluded323 that: 
a. point-of-production labelling in and of itself: 
i. increases the need for segregating Category B muscle cuts and livestock under two 
scenarios, namely muscle cuts of different single and different multiple foreign 
origins; 
ii. increases the need for segregating Category C muscle cuts of different multiple 
foreign origins – provided that only the country of immediate import can be shown as 
the country of raising on the label; 
iii. does not affect the need for segregation under other scenarios of Category B and C 
muscle cuts and livestock, or for Category A muscle cuts and livestock; and 
b. the amended COOL measure's removal of the commingling and country order flexibilities 
increases the need for segregation. 
                                                                                                                                               
where the originating livestock was slaughtered (substan tial transformation). 2009 Final Rule, § 65.300(f); and 
2013 Final Rule, § 65.300(f)(2). See also Panel Reports, US – COOL , para. 7.674; and Appellate Body Reports, 
US – COOL , para. 241. 
318 This also applies to the voluntary option for Label D to show not only the country of slaughter 
(substantial transformation) but also the countries of th e other two production steps. Muscle cuts in Scenarios 
D1 and D4 would also carry four distinct voluntary augmented Labels D. See 2013 Final Rule, § 65.300(2). 
319 See Appellate Body Reports, US – COOL , para. 286. 
320 Panel Reports, US – COOL , para. 7.327. 
321 See para. 7.86 above. 
322 Appellate Body Reports, US – COOL , para. 286. 
323 See paras. 7.111 and 7.127 above. Product of 
Countr y X 
Product of 
Country X WT/DS384/RW • WT/DS386/RW 
 
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  7.135.  Various statements from individual industry participants324 and groups325 confirm that the 
amended COOL measure involves increased segregat ion throughout both the beef and pork muscle 
cuts supply chains, i.e. cattle and hogs as well as muscle cuts derived therefrom. 
7.136.  Accordingly, we find that the amended COOL measure involves segregation, as did its 
predecessor. Indeed, as compared with the original COOL measure, for all practical purposes, the 
amended COOL measure necessitates increased  segregation of livestock and the resulting muscle 
cuts of meat according to origin in order to meet the information requirements on origin labels. 
7.137.  Like the original panel, we do not consider that segregation – or increased segregation for 
that matter – per se  would constitute detrimental impact und er Article 2.1 of the TBT Agreement, 
let alone a violation of Article 2.1.326 We need to address whether segregation "'modifies the 
conditions of competition  … to the disadvantage of the imported  product' by imposing higher costs 
on imported than on domestic livestock."327 Before doing so, however, we first assess the impact 
of the amended COOL measure on recordkeeping, which is closely linked to the need for segregation and its cost implications. 
7.5.4.1.2.4  Recordkeeping 
7.138.  The parties dispute the impact of th e amended COOL measure on recordkeeping. 
In particular, the complainants argue that the revised labels and elimination of commingling under 
the amended COOL measure result in increased recordkeeping and verification burdens as 
compared to the original COOL measure.
328 The United States counters that the 2013 Final Rule 
makes no changes to the recordkeeping provisions contained in the original COOL measure, which require accurate records irrespective of the origin of the products.
329 
7.139.  The provisions regarding recordkeeping an d verification are formally identical under the 
original and amended COOL measures.330 We examine whether in practice  the amended COOL 
measure requires greater recordkeeping as compared to the original COOL measure. 
7.140.  The recordkeeping requirements of the original COOL measure established an audit 
verification system imposing certain recordkeeping requirements for producers along the livestock and meat production chain.
331 In particular, the COOL statute grants authority to the Secretary of 
Agriculture to "conduct an audit of any person that prepares, stores, handles, or distributes a 
covered commodity for retail sale to verify compliance".332 Persons subject to audit under this 
provision must be able to make country of origin records available to the USDA for the purposes of origin verification.
333 Further, "[a]ny person engaged in the business of supplying a covered 
commodity to a retailer shall provide information to the retailer indicating the country of origin of 
the covered commodity."334 
                                               
324 See Exhibits CDA-25, CDA-28, CDA-29, CDA-31, CDA-32, MEX-21, MEX-22, MEX-23, and MEX-28. In 
particular, for instance, Tyson, a major US processo r, explains how the amended COOL measure leads to 
"additional segregation at several of [its] plants and lead to significant costs not included in the [USDA's] 
proposal [for the 2013 Final Rule]." Exhibits CDA-25 and MEX-21. Further, AgriBeef explains the ways in which segregating the fabrication runs would lead to  increased segregation costs. Exhibit CDA-28. 
325 See Exhibits CDA-22, CDA-23, CDA-24, CDA-30, CDA-33, CDA-35, CDA-36, CDA-37, CDA-65, and 
MEX-26. 
326 Panel Reports, US – COOL , para. 7.328, citing that the "separation [of imported and domestic 
products], in and of itself , does not necessarily compel the conclusi on that the treatment thus accorded to 
imported [products] is less favourable than the treatm ent accorded to domestic [p roducts]." Appellate Body 
Report, Korea – Various Measures on Beef , para. 144 (emphasis original).  
327 Panel Reports, US – COOL , para. 7.328 (footnote omitted) (citing Appellate Body Report, Korea – 
Various Measures on Beef , para. 144 (emphasis original)). See also Panel Reports, US – COOL , para. 7.239. 
328 See Canada's first written submission, paras. 42- 44 and second written submission, paras. 23-24; 
Mexico's first written submission, paras. 100-101 and second written submission, para. 43. 
329 United States' first written submission, para. 117. 
330 See section 7.3.5 above. 
331 See Panel Reports, US – COOL , para. 7.117. 
332 COOL statute, § 1638a(d)(1). 
333 See COOL statute, § 1638a(d)(2)(A); and 2009 Final Rule, § 65.500(a)(2). 
334 COOL statute, § 1638a(e). WT/DS384/RW • WT/DS386/RW 
 
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  7.141.  According to the 2009 Final Rule, "[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 the immediate previous so urce (if applicable) and immediate subsequent 
recipient of a covered commodity for a period of 1 year from the date of the transaction."335 
7.142.  As explained in the original dispute, th ese recordkeeping requirements necessarily entail 
information that "can only be obtained from the upstream livestock and meat supply chain".336 
The 2009 Final Rule's explicit application to such upstream suppliers meant that: 
the [original] COOL measure prescribes an unbroken chain  of reliable country of origin 
information with regard to every animal and muscle cut . In other words, to comply 
with the COOL measure, livestock and meat processors need to possess, at each and every stage of the supply and distribution  chain, the kind of origin information 
required by the various COOL labels for which each animal or portion of meat is 
eligible, and they need to transmit such information to the next processing stage.
337 
7.143.  Under the amended COOL measure, the information that needs to be obtained and 
maintained upstream continues to be closely tied to the "origin claim" that is made with respect to 
a covered commodity. This is based on the unchanged requirement that "suppliers and retailers … shall make available … records … that verify an origin claim".
338 The "origin claim"339 is therefore a 
key determinant of the "records" and informatio n that are required under the amended COOL 
measure for both retailers  and suppliers.340 
7.144.  In this vein, the USDA's assertion that in practice "no additional recordkeeping is required 
by [the 2013 Final Rule]"341 is called into question by its earlier recognition that recordkeeping 
burdens for various stages in the production chain are correlated to the nature of the origin claim 
and the requisite accuracy of supporting inform ation. To take one example, in 2009 the USDA 
"recognize[d] that animal production cycles vary greatly and depending upon which records are 
used for origin verification, retention of documents should be commensurate with the claim being 
affirmed through an affidavit or other means of declaration."342 For intermediary suppliers, the 
                                               
335 2009 Final Rule, § 65.500(b)(3) (emphasis added). See also Panel Reports, US – COOL , para. 7.118. 
336 Panel Reports, US – COOL , para. 7.316; Appellate Body Reports, US – COOL , para. 249. 
337 Panel Reports, US – COOL , para. 7.317 (emphasis added). These implications were explicitly 
acknowledged in the USDA's cost-benefit analysis of the 2009 Final Rule. According to the USDA, "[t]h[e] [2009 Final R]ule directly regulates the activities of retailers (as defined by the law) and their suppliers. Retailers are required by the rule to  provide country of origin informat ion for the covered commodities that 
they sell, and firms that supply covered commodities to these retailers must provide them with this information. In addition, virtually all other firms in th e supply chain for the covered commodities are potentially 
affected by the rule because country of origin informatio n will need to be maintained and transferred along the 
entire supply chain." 2009 Final Rule, p. 2684. See also 2009 Final Rule, p. 2697 ("producers, handlers, manufacturers, wholesalers, importers,  and retailers of covered commodities" listed as part of "description of 
recordkeepers"); Panel Reports, US – COOL , para. 7.318; and Appellate Body Reports, US – COOL , para. 249. 
338 2009 Final Rule, § 65.500(a)(2). 
339 To be precise, the "origin claim" referenced in the COOL recordkeeping requ irements is initiated by 
the "slaughter facility". 2009 Final Rule, § 65.500(b)(1). The USDA explains that its "authority to audit ends at 
the slaughter facility as the slaughter facility is the first handler of the covered commodity" and that 
"as initiators of origin claims, packers must have records to substantiate those claims". 2009 Final Rule, p. 2674. The origin claim also serves as the basis for symmetry between the information to be provided by retailers and transmitted by suppliers. See 2009 Final Ru le, p. 2660 ("upon request by USDA representatives, 
suppliers and retailers shall make avai lable to USDA representatives, records maintained in the normal course 
of business that verify an origin … claim"). 
340 In its Article 2.1 analysis, the Appellate Body relied upon the original panel's finding that "livestock 
and meat processors need to possess, at each and every st age of the supply and distribution chain, the kind of 
origin information required by the various COOL labels". Appellate Body Reports, US – COOL , paras. 339 and 
342, footnote 665. In a subsequent reference to the original COOL measure's recordkeeping, the 
Appellate Body mentioned labels having "less detail than the information regarding the countries in which the livestock were born, raised, and slaughtered, which upstre am producers and processors are required to be able 
to identify in their records and transmit to  their customers." Appe llate Body Reports, US – COOL , para. 346. 
We do not understand this to contradict the original panel's factual finding that recordkeeping concerned "the 
kind of origin information required by the various COOL labels", as relied upon by the Appellate Body. Nor does 
it disturb the reasoning set forth based on the "origin claim" under the amended COOL measure. 
341 2013 Final Rule, p. 31376. 
342 2009 Final Rule, p. 2675. WT/DS384/RW • WT/DS386/RW 
 
- 74 - 
 
  USDA anticipated that the transmission of information from "distribution centers" to retailers 
"likely will require modification of existing recordkeeping processes to ensure that the information passed from suppliers to retail stores permits accurate product labeling and permits compliance and enforcement reviews."
343 In short, suppliers' recordkeeping burden and obligations are 
explicitly tied to the "information needed to correctly label the covered commodities".344 
7.145.  This is consistent with the USDA's identi fication of two types of costs in relation to 
recordkeeping under the original COOL measure, namely "initial costs" and "maintenance costs".345 
First, "initial or start-up costs" were considered to consist of "some additional incremental costs to 
record, maintain, and transfer country of origin … information to substantiate required claims 
made at retail ".346 Second, "[i]n addition to these one-time costs to modify recordkeeping 
systems, enterprises will incur additional recordkeeping costs associated with storing and 
maintaining records".347 For livestock in particular, it was anticipated under the original COOL 
measure that "all producers of … livestock (in the case of the covered meat commodities) will establish recordkeeping systems sufficient to substantiate country of origin claims ".
348 Further, it 
was recognised that the nature of livestock production was such that both initial349 as well as 
maintenance350 costs of recordkeeping would be greater for these types of operations. 
7.146.  As shown above351, an "origin claim" under the original COOL measure could consist of a 
muscle cut being a "product of" the country(ies) of origin involved. In addition, 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 ".
352 The 2013 Final Rule now mandates such information 
on all covered US-slaughtered muscle cuts, and maintains the provision for voluntary specific 
information on production steps only for Category D imported muscle cuts ("provided records to substantiate the claims are maintained").
353 This implies that the augmented origin claims with 
specific information related to production steps on Labels A-C, as mandated under the amended 
COOL measure, entail corresponding augmentation  of the records kept by livestock and meat 
producers to substantiate such claims.354 
                                               
343 2009 Final Rule, p. 2685. 
344 According to the 2009 Final Rule, "[t]he rule re quires retailers to provide country of origin 
information for all of the covered commodities that they sell. It also requires all firms that supply covered 
commodities to these retailers to provide the retailer s with the information need ed to correctly label the 
covered commodities . In addition, all other firm s in the supply chain for the covered commodities are 
potentially affected by the rule be cause country of origin informatio n will need to be maintained and 
transferred along the entire supply chain." 2009 Final Rule, p. 2693 (emphasis added). 
345 See 2009 Final Rule, pp. 2697-2698, Table 9. 
346 2009 Final Rule, p. 2698 (emphasis added). Further, "[e]xamples of initial or start-up costs would be 
any additional or recordkeeping burden needed to reco rd the required country of origin … information and 
transfer this information to handlers , processors, wholesalers,  or retailers via records used in the normal 
course of business". Ibid. 
347 2009 Final Rule, p. 2699. 
348 2009 Final Rule, p. 2698 (emphasis added). 
349 According to the 2009 Final Rule, "[i]n particular, it is believed that livestock backgrounders, 
stockers, and feeders will face a greater burden in establishing recordkeeping systems. These types of 
operations will need to track country of origin informat ion for animals brought into the operation as well as for 
animals sold from the operation via reco rds used in the normal course of business, increasing the burden of 
substantiating country of origin claims." 2009 Final Rule, p. 2698. 
350 According to the 2009 Final Rule, "it is expected that … livestock producers will incur higher costs to 
maintain country of origin … information. … [L]ivestoc k can and often do move through several geographically 
dispersed operations prior to sale for processing or sl aughter. Cattle, for example,  typically change ownership 
between 2 to 3 times before they are slaughtered and processed." 2009 Final Rule, p. 2699. 
351 See Table 1 above. 
352 2009 Final Rule, § 65.500(e)(4) and p. 2662 (emphasis added). 
353 See 2013 Final Rule, § 65.300(f)(2) and p. 31369. 
354 The USDA acknowledges that "all affected retailer s and packers will have to change their labelling 
practices to conform to [the 2013 Final Rule], regardless of the origin of the animal from which their muscle cut covered commodities are derived." 2013 Final Rule, pp. 31373-31374. Further, the dynamic between greater information on labels and more upstream record s was highlighted by the USDA in its discussion of 
intermediaries' obligations resulting from the 2009 Final Rule. According to the 2009 Final Rule, "[t]he recordkeeping burden on handlers, proc essors, wholesalers, and retailers is expected to be more complex than 
the burden most producers face. These operations will n eed to maintain country of origin … information on the 
covered commodities purc hased and subsequently furnish that information to the next participant in the supply 
 WT/DS384/RW • WT/DS386/RW 
 
- 75 - 
 
  7.147.  Further, it follows from the foregoing an alysis of increased segregation under the amended 
COOL measure that the revised labels create a greater variety of scenarios that must be verifiable by retailer and supplier records. We concluded above that point-of-production in and of itself increased the number of distinct labels for various production-step scenarios of Category B and 
Category C muscle cuts.
355 Just as the creation of more labels necessitates more segregation 
under the amended COOL measure, different "origin claims" require distinct substantiation for the segregated animals and meat. This is particularly evident in the case of the removal of 
commingling and country order flexibility. Tables 10 and 11 illustrate various scenarios for which, 
under the original COOL measure, animals and meat with different production-step origins could be consolidated under a unified "origin claim". Suppliers and retailers availing themselves of such a general "origin claim" would have a recordkeeping burden and obligation commensurate with the 
substantiation of that general claim. The greater diversity of labels resulting from the elimination 
of commingling and country-order flexibility creates a multiplicity of scenarios for which distinct and commensurate substantiating records are now required. 
7.148.  The USDA also referred to "the major cost drivers" of the 2009 Final Rule as including 
inter alia "when livestock or other covered commodities are segregated in the production or 
marketing process when firms are not using a multiple-origin label ".
356 As a direct result of the 
2013 Final Rule, "the flexibilities afforded by the use of multiple-origin labels"357 under the original 
COOL measure are no longer available. A "mixed origin label"358 under the amended COOL 
measure must now be understood to represent a greater diversity of mutually exclusive labels according to the possible variations of production steps.
359 Consequently, what was originally 
considered a "major cost driver" is now the prec ise situation mandated by the revised labels and 
removed flexibilities under the amended COOL measure. 
7.149.  In sum, the increase in the number of distinct labels and in segregation logically entails a 
higher recordkeeping burden. Although origin  claims may be substantiated by documents 
maintained in the normal course of business, to the extent that origin claims become more diverse, they entail more burdensome recordkeep ing. As products that could be covered by a 
uniform origin claim are now covered by more, distinct origin claims, the one set of normal 
business documentation to substantiate the previously uniform origin claim is now necessarily replaced with distinct sets of normal business documentation to substantiate the diverse origin claims. This logically leads to higher recordke eping burdens and costs, as also confirmed by 
statements of industry participants.
360 
7.150.  In light of the above, we find that, compared with the original COOL measure, the 
amended COOL measure entails an increased recordkeeping burden in practice for US-slaughtered 
livestock and the resulting muscle cuts of meat. 
                                                                                                                                               
chain. This will require adding additional information to  a firm's bills of lading, invoices, or other records 
associated with movement of covered commodities from purchase to sale." 2009 Final Rule, p. 2699. 
355 See para. 7.111 above. 
356 2009 Final Rule, p. 2689 (emphasis added). In this connection, we also note the USDA's 
acknowledgement that "[p]rocessors ha ndling only domestic origin products  or products from a single country 
of origin may have lower implementation costs compared with processors handling products from multiple origins, although such costs would likely be mitigated in those cases where firms are only using covered 
commodities which are multiple-origin labeled ." 2009 Final Rule, p. 2685 (emphasis added). 
357 2009 Final Rule, p. 2691. 
358 See, e.g. 2013 Final Rule, p. 31374. 
359 See 2013 Final Rule, p. 31377 (indicating that th e amended COOL measure "no longer allows a 
single mixed origin label" due to the eliminatio n of commingling). See also Table 10 (showing one 
multiple-origin label under the original COOL measure potentially spanning three distinct labels under the amended COOL measure). 
360 See Exhibits CDA-22, CDA-25, CDA-28, CDA-29, CDA-30, CDA-32, CDA-33, CDA-34, CDA-35, 
CDA-36, CDA-37, MEX-21, and MEX-26. In particular, the Food Marketing Institute explains how putting more 
detailed origin information on the labels will be more costly. See Exhibits CDA-22 and MEX-26. Tyson, AgriBeef, FPL Food, and the National Grocers' Associat ion also elaborate on how the amended COOL measure 
will increase the recordkeeping burden. See Exhi bits CDA-25; CDA-28; CDA-32; MEX-21 and MEX-25, 
respectively. WT/DS384/RW • WT/DS386/RW 
 
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  7.5.4.1.3  Incentives for handling domestic  products and effects on the competitive 
opportunities of imported products 
7.151.  The original panel noted that segregation "does not necessarily impose differential 
implementation costs on imported and domestic products."361 At the same time, the original panel 
concluded that more segregation entails more costs: 
[I]t is evident that the more origins and the more types of muscle cut labels involved, 
the more intensive the need for segregatio n throughout the livestock and meat supply 
and distribution chain. In turn, more intensive segregation leads to higher compliance 
costs with the COOL measure.362 
7.152.  Given the Appellate Body's endorsement of this conclusion363,  w e  s e e  n o  r e a s o n  t o  f i n d  
otherwise in the context of these compliance proceedings. 
7.153.  To assess whether segregation involves differential implementation costs for imports, 
the original panel compared five business scenarios based on whether the livestock being processed has domestic or imported origin(s): 
"(a) processing domestic and imported livestock and meat irrespective of origin and 
solely according to price and quality; 
(b) processing meat from exclusively domestic livestock; 
(c) processing meat from exclusively imported livestock; 
(d) processing exclusively domestic and exclusively imported livestock at different 
times; or 
(e) processing both domestic and imported meat by commingling the two on the 
same production day."
364 
7.154.  The original panel concluded that "[t]he relatively less costly business scenarios are the 
ones that involve processing meat from either exclusively domestic or exclusively foreign livestock 
at all times" because, "as a direct result of the [original] COOL measure, business scenarios 
involving more than one origin or muscle cut label result in generally higher costs than scenarios involving only one origin."
365 
7.155.  In essence, this continues to apply in the context of this compliance dispute. Under the 
amended COOL measure, the first four business scenarios compared by the original panel remain valid. The fifth scenario involving commingling is no longer available. In any event, it was also found to be more costly than single-origin scenarios.
366 As regards the relative costs of the 
remaining four scenarios, various industry participants indicated that different stages of the supply 
chain would move to a single-origin category approa ch in light of the increased costs of processing 
products of multiple origin under the amended COOL measure.367 
                                               
361 According to the original panel, "[t]he segregation involved in the COOL measure does not 
necessarily impose differential implementation costs on imported and domestic products. If imported and 
domestic livestock are being processed, in principle, these need to be equally segregated from each other 
according to origin. In principle, the resulting impl ementation costs are the same for both imported and 
domestic products."  Panel Reports, US – COOL , para. 7.330. 
362 Panel Reports, US – COOL , para. 7.331. 
363 See Appellate Body Reports, US – COOL , paras. 261, 287, and 345. 
364 Panel Reports, US – COOL , 7.333 and 7.335-7.344. 
365 Panel Reports, US – COOL , para. 7.347. 
366 The original panel found that "[c]ommingling migh t reduce [segregation and other compliance] costs 
at specific stages, but overall it still involves higher costs than processing single origin livestock only." Panel Reports, US – COOL , para. 7.346. 
367 See Exhibits CDA-17, CDA-25, CDA-28, CDA-29, MEX-22, MEX-24, and MEX-25. WT/DS384/RW • WT/DS386/RW 
 
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  7.156.   Comparing the two single-origin scenarios, the original panel concluded that "it seems 
logical that the scenario of processing exclusively domestic livestock and meat is in general less costly and more viable than processing exclusively imported livestock."
368 In particular, the original 
panel considered that: 
[l]ivestock imports have been and remain small compared to overall US livestock 
production and demand, and US livestock demand cannot be fulfilled with exclusively foreign livestock. And even if it could be, in light of the evidence before us, it appears 
that this scenario would in all likelihood involve more than one foreign origin, and thus 
in general more segregation and higher compliance costs than processing exclusively domestic livestock, which by definition has one single origin.
369 
7.157.  We see no significant change in the relati ve share of US and imported livestock and meat 
in the US market. The United States explains th at the market has not changed in this regard.370 
Accordingly, the original panel's logic continues to apply: processing exclusively domestic livestock and meat remains the least costly and most viable business scenario under the amended COOL 
measure. As the original panel held: 
overall, the least costly way of complying with the COOL measure is to rely on 
exclusively domestic livestock. Thus, in general, business scenarios involving imported 
livestock, including the scenario involving exclusively imported products, are overall 
more costly than the exclusively Label A approach.
371 
7.158.  This is confirmed by statements from US industry participants of different sizes. AB Foods, 
a US packing plant processing approximately 1% of the United States' annual beef production372 
noted that the segregation costs resulting from the amended COOL measure would place his 
company at a competitive disadvantage to packers in parts of the country, such as the Midwest, 
where there is a more consistent supply of US cattle.373 Likewise, Tyson, a major US processor 
stated with regard to the amended COOL measure: 
[e]ven if a retail customer would be willing to accept 'B' or 'C' label products, there 
are not enough 'B' or 'C' livestock in any region to allow any Tyson plant (or, we 
believe, any other processor) to dedicate itself to 'B' or 'C' livestock, which would be 
the only way to avoid the segregation costs described above and remain viable.374 
7.159.  Reviewing how compliance costs are borne in the supply chain, the original panel noted 
that "under the COOL measure and all other things being equal, either consumers pay more or 
livestock producers receive less for the livestock they sell to processors."375 The original panel 
added that "[a]s the 2009 Final Rule … explains, at least some of the compliance costs of the COOL measure will arise at the level of suppliers of covered commodities." The USDA estimates 
that the costs of the amended COOL measure will also arise in the supply chain: 
[T]he Agency agrees that there will be a dditional costs associated with th[e 2013 
F]inal [R]ule, although only those muscle cut covered commodities subject to COOL 
requirements will be affected by the changes in this final rule. Those costs will be 
incurred by processors and retailers as they adjust to the loss of commingling 
flexibility and to the new labeling requirements in this final rule.
376 
                                               
368 Panel Reports, US – COOL , para. 7.349. 
369 Panel Reports, US – COOL , para. 7.349 (footnote omitted). 
370 According to the United States, "the market forces  found to exist during the original dispute – i.e., 
the vast majority of beef sold at retail is produced  from animals born, raised an d slaughtered in the U.S. – 
have … not changed in the interim ti me period." United States' response to Panel question No. 18 (footnote 
omitted). 
371 Panel Reports, US – COOL , para. 7.350. 
372 See Exhibit CDA-67. 
373 See Exhibit CDA-17. 
374 Exhibits CDA-25 and MEX-21. 
375 Panel Reports, US – COOL , para. 7.352. 
376 2013 Final Rule, p. 31372. WT/DS384/RW • WT/DS386/RW 
 
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  7.160.  Further, according to the original panel,  "the additional costs [of the COOL measure] 
cannot be fully passed on to consumers."377 The original panel took into account "the lack of 
[consumer] interest in a voluntary COOL regime"378, as noted by the USDA at the time.379 
Referencing previous disputes380, the original panel concluded that: 
the COOL measure creates an incentive for participants to process domestic rather 
than imported livestock because, under the COOL measure, processing meat from exclusively domestic livestock is less costly than other business scenarios. Passing on 
these costs at least in part to imported livestock in turn creates a reduction in the 
competitive opportunities of imported livestock, relative to domestic livestock.
381 
7.161.  This continues to apply in the context of the amended COOL measure. Although in the 
2013 Final Rule the USDA does not address a voluntary COOL regime, or consumer interest in such 
a regime382, the USDA explains that "the expected be nefits from implementing mandatory COOL 
requirements [under the amended COOL measure]  remain difficult to quantify and that the 
incremental economic benefits of this final rule will be comparatively small relative to those 
afforded by the current COOL requirements."383 The USDA adds that "[t]he availability of COOL 
information does not imply that there will necessarily be any change in aggregate consumer demand or in demand for products  of one origin versus others."
384 
7.162.  US industry participants confirm that "the costs [of the amended COOL measure] will be 
staggering and impossible to pass to the customer or consumer"385 "since there are no benefits 
derived for the consumer for which the consumer will pay a premium."386 Likewise, McVean 
Trading and Investments, an investment manage ment company specializing in agricultural 
products, and a trader of US cattle futures, notes that: 
[t]he situation in the U.S. beef industry re flects the fact that there are a large number 
of cattle producers and a very small number of packers who control a significant share 
of the overall kill capacity and an increasingly concentrated retail sector for meat 
products. The result is that the cattle producers are price takers largely as they have little or no market power. … The structure of the cattle and beef industries is such that 
                                               
377 Panel Reports, US – COOL , para. 7.353. 
378 Panel Reports, US – COOL , para. 7.354. 
379 Panel Reports, US – COOL , para. 7.354 (citing 2009 Final Rule, p. 2682). 
380 Panel Reports, US – COOL , para. 7.358. 
381 Panel Reports, US – COOL , para. 7.357. 
382 See 2013 Final Rule, p. 31372. 
383 2013 Final Rule, p. 31376. The USDA explains in the 2013 Final Rule that it could not quantify the 
benefits of point-of-production labell ing: "information on the production steps in each country may embody 
latent (hidden or unobservable) attributes, which may be important to individual  consumers and result in 
additional but hard to measure benefit increases. The Agency, however, has not been able to quantify this benefit, as singling out the value of those additional latent attributes and the resultant consumer benefit increases would require complicated modeling techniques that none of the available studies utilized." 
2013 Final Rule, p. 31377. Further, the USDA "observes th at the comments it has received on the proposed 
rule reinforce the Agency’s conclusion that the ex pected benefits from implem enting the final rule’s 
amendments to the existing COOL labeling requirements are difficult to quantify, as no commenters provided 
quantified assessments of the benefits. Moreover, the co mments received do not alter the Agency’s conclusion 
that the incremental economic benefits from the labeling of  production steps will be positive, but likely will be 
comparatively small relative to those already afforded by the 2009 COOL final rule." 2013 Final Rule, p. 31377. 
384 2013 Final Rule, p. 31376. Further, according to th e USDA, "an empirical finding of no change in 
demand … may … imply that the economic benefits are positive but too small to be measurable in a general-population study." Ibid. The USDA refe rences also a study in the context of  shrimp on the USDA website, which 
concludes that "price is a more important determinant of buyer behavior than COOL, a finding consistent with various consumer surveys." Consum ers Appear Indifferent to Country-of-Origin Labeling for Shrimp 
<http://www.ers.usda.gov/amber-waves/2012-june/consumers-appear-indifferent.aspx>. 2013 Final Rule, p. 31376, footnote 3. The USDA adds that "[c]omments re ceived on the 2009 final rule and previous requests 
for comments elicited no evidence of significant barriers to the provision of this information other than private 
costs to firms and low expected return s. Thus, from the point of view of society, such evidence suggests that 
market mechanisms could ensure that the optimal level of country of origin information would be provided to the degree valued by consumers." 2013 Final Rule, p. 31377. 
385 Exhibit CDA-28. See also Exhibits CDA-30, MEX-19, MEX-23, and MEX-27. 
386 Exhibit CDA-28. WT/DS384/RW • WT/DS386/RW 
 
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  there is no likelihood that any additional costs will not be passed back upstream to 
cattle producers.387 
7.163.  Based on the points summarized above, th e original panel "preliminarily conclude[d] that 
the [original] COOL measure creates an incentive to  use domestic livestock – and a disincentive to 
handle imported livestock – by imposing higher segregation costs on imported livestock than on 
domestic livestock. Consequently, the COOL measure affects competitive conditions in the US market to the detriment of imported livestock."
388 
7.164.  As a factor confirming the incentive in favour of domestic livestock, the original panel took 
into account "the relative use of the muscle cut labels under the COOL measure".389 It found that, 
"despite commingling, the use of Label A affects t h e  v a s t  m a j o r i t y  o f  m e a t  l a b e l l e d  u n d e r  t h e  
COOL requirement"390, and noted that "the complainants do not contest the US argument that the 
use of category C and D labels remains 'small'."391 
7.165.  The parties do not submit specific data on the shares of the four muscle cut labels under 
the amended COOL measure. However, the United States points out that "the market forces found 
to exist during the original dispute – i.e., the vast majority of beef sold at retail is produced from 
animals born, raised and slaughtered in the U.S. – have … not changed in the interim time period" 
since the 2009 Final Rule.392 Further, all parties agree that the use of Label A will remain 
predominant under the amended COOL measure.393 In fact, with the removal of the commingling 
flexibility, the totality of Category A muscle cuts will need to carry a Label A. 
7.166.  The original panel also concluded that, due to the incentive in favour of domestic livestock, 
the original COOL measure created a legal necessity of making a choice for private actors in favour 
of domestic livestock394, and thus reduced the competitive opportunities of imported livestock. 
Similar to the original panel, the Appellate Body  likened the COOL situation to the one in the Korea 
– Various Measures on Beef  dispute in this regard395: 
[T]he circumstances of [the original dispute] are similar to those in Korea – Various 
Measures on Beef . … The Appellate Body did not find a detrimental impact on 
imported beef due only to '[t]he legal nece ssity of making a choice' that the measure 
itself imposed.396 Rather, it held that the adoption of a measure requiring such a 
choice to be made had the 'direct practical effect', in that market, of denying competitive opportunities to imports. Such an effect was not 'solely the result of private entrepreneurs acting on their own calculations of comparative costs and 
benefits', but was the result of the governmental intervention that affected the 
conditions of competition for beef in Korea. … The relevant question is whether it is the governmental measure at issue that affects the conditions under which like goods, 
domestic and imported, compete in the market. While a measure may not legally 
require certain treatment of imports, it may nevertheless create incentives for market participants to behave in certain ways, an d thereby have the 'practical effect' of 
treating imported products less favourably. Thus, the findings in Korea – Various 
Measures on Beef  are consistent with, and support the proposition that, whenever the 
                                               
387 Exhibit MEX-55. 
388 Panel Reports, US – COOL , para. 7.372. 
389 Panel Reports, US – COOL , para. 7.360. 
390 Panel Reports, US – COOL , para. 7.370. 
391 Panel Reports, US – COOL , para. 7.371 (footnote omitted). 
392 United States' response to Panel question No. 18 (footnote omitted). 
393 Parties' responses to Panel question A(v). 
394 See Panel Reports, US – COOL , paras. 7.386-7.392. 
395 According to the original panel, "[a]s noted above, in Korea – Various Measures on Beef , the 
Appellate Body found a 'reduction of competitive opportunit [ies]' for imported products relative to domestic like 
products.  
"We are faced with the same situation in the current dispute. The competitive opportunities of imported 
livestock are reduced as the additional costs of comp liance with the COOL measure incurred when handling 
imported livestock are, at least in part, passed on to suppliers of import ed livestock. We referenced in this 
regard direct evidence of a considerable COOL discount  being applied by several ma jor processors to imported 
livestock and the absence of evidence of a similar discou nt being applied to domestic  livestock." Panel Reports, 
US – COOL , paras. 7.373-7.374 (footnotes omitted). 
396 Appellate Body Report, Korea – Various Measures on Beef , para. 146. WT/DS384/RW • WT/DS386/RW 
 
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  operation of a measure in the market creates incentives for private actors 
systematically to make choices in ways that benefit domestic products to the detriment of like imported products, then such a measure may be found to treat imported products less favourably.
397 
7.167.  The same considerations continue to apply under the amended COOL measure. As 
explained above398, the amended COOL measure necessitates increased segregation and 
recordkeeping in practice, and it increases the incentive in favour of domestic livestock. As a 
consequence, the amended COOL measure increases the practical necessity for private actors to 
choose domestic over imported livestock, and has an increased negative effect on the competitive conditions of imported livestock in the US market. 
7.168.  In finding a de facto  negative impact on the competitive opportunities of imported 
livestock, the original panel took into account the small market share of imported products.
399 
The Appellate Body upheld this, confirming that de facto  detrimental impact is closely connected to 
the market conditions in which a measure applies.400 
7.169.  As noted401, imported livestock continues to have a small share in the US market. Like the 
original panel, we take this into account to find that the amended COOL measure has increased the detrimental impact on the competitive opportuni ties of imported livestock in the US market. 
7.170.  Further, like in the original dispute
402, the detrimental impact of the amended COOL 
measure is confirmed by industry statements.403 In particular, numerous statements indicate that 
the amended COOL measure results in a stronger incentive for plants, retailers, or processing 
companies to refuse imported cattle and hogs or resulting muscle cuts, or that the amended COOL 
measure is leading to additional refusals of imported products404 or of imported animals of 
Category B or C origin.405 Some statements attest to increased transportation costs as a result of 
fewer US processors willing to accept imported livestock.406 According to some statements, 
                                               
397 Appellate Body Reports, US – COOL , para. 288 (footnotes omitted, emphasis original). The Appellate 
Body added that "while de trimental effects caused solely  by the decisions of private actors cannot support a 
finding of inconsistency with Article 2. 1, the fact that private actors are fr ee to make various decisions in order 
to comply with a measure does not preclude a finding of inconsistency. Rather, where private actors are 
induced or encouraged to take certain decisions because of the incentives created by a measure , those 
decisions are not "independent" of that measure. As the Appellate Body noted, the "intervention of some element of private choice does not relieve [a Member] of responsibility … for the resulting establishment of 
competitive conditions less favourable for the imported product than for the domestic  product", and thus does 
not preclude a finding that the measure provides le ss favourable treatment." Appellate Body Reports, US – 
COOL , para. 291. 
398 See section 7.5.4.1.2.3 above. 
399 See Panel Reports, US – COOL , paras. 7.393-7.404. 
400 According to the Appellate Body, "[a] market's response to the application of a governmental 
measure is always relevant to an assessment of whet her the operation of that measure accords de facto  less 
favourable treatment to imported products. That is, if  a specific technical regulation adopted by a Member 
gives rise to adverse effects in the market, which dispar ately impact imported products, such effects will be 
attributable to the technical regulation for purposes of  examining less favourable treatment under Article 2.1. 
We understand the Panel to have considered that, in this case, the small market share held by Canadian 
and Mexican livestock imports exacerbates the effects of the COOL measure. In making its finding under 
Article 2.1, the Panel acknowledged that the incentive created by the COOL measure is "partly due to the 
relatively small market share of imported livestock". Such reasoning is not inconsistent with a finding that it was the COOL measure that caused the detrimental impa ct. Indeed, the opportunity for a technical regulation 
to discriminate may well derive from its operation within a given ma rket that exhibits part icular characteristics. 
In some instances, the mark et share held by imported products may be one such relevant characteristic." 
Appellate Body Reports, US – COOL , paras. 289-290. 
401 See paras. 7.156-7.157 above. 
402 See Panel Reports, US – COOL , paras. 7.374-7.380; Appellate Body Reports, US – COOL , paras. 315 
and 318-323. 
403 See generally Exhibits MEX-17 (BCI ), MEX-18 (BCI), and MEX-19 (BCI). 
404 See Exhibits CDA-18, CDA-19, CDA-22, CDA-23, CDA-25, CDA-32, CDA-37, CDA-42 (BCI), 
CDA-43 (BCI), CDA-44 (BCI),  CDA-45 (BCI), CDA-46 (BCI), CDA-47 (B CI), CDA-48 (BCI), CDA-49 (BCI), 
CDA-50 (BCI), CDA-51 (BCI),  CDA-52 (BCI), CDA-55 (BCI), CDA-56 (BCI), CDA-58, CDA-62, CDA-63, CDA-64, 
CDA-65, CDA-66, CDA-68, CDA-69, CDA-70, CDA-110, CDA-113, CDA-116, CDA-117, MEX-18 (BCI), MEX-21, MEX-23, MEX-26, and MEX-28. Panel Reports, US – COOL , para. 7.375. 
405 See Exhibits CDA-69 and CDA-70. 
406 See Exhibits CDA-24, CDA-49 (BCI), CDA-53 (BCI), CDA-54 (BCI), and CDA-64. WT/DS384/RW • WT/DS386/RW 
 
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  delivery times for imported livestock would remain reduced or be made less flexible as a result of 
the amended COOL measure.407 Some statements indicate that the amended COOL measure would 
lead to further worsened contractual conditions for imported cattle and hogs408, or to a worsening 
of financial conditions for suppliers of imported livestock.409 According to some statements, 
imported cattle continue to be excluded from pr emium beef programs, such as the Certified Angus 
Beef program, under the amended COOL measure.410 In addition, various statements indicate that 
the decreasing number of processors accepting less imported livestock as a result of the amended 
COOL measure leads to an increased COOL discount on imported cattle and hogs.411 
7.171.  Canada and the United States also advance specific economic arguments on the evolution 
of the price basis between Canadian and US cattl e following the implementation of the original 
COOL measure. In particular, the United States contests Canada's claim that the price basis 
between Canadian and US fed and feeder cattle has worsened to the detriment of Canadian cattle, 
with feeder cattle basis having recently increased to its widest margin.412 The United States argues 
that because of seasonal fluctuation, the comparison of a pre-original COOL basis to a post-original 
COOL basis should be based on the averages of two time periods of similar time spans.413 Relying 
on such an approach, the United States asserts that the price basis between Canadian and US fed 
cattle has actually narrowed since the implem entation of the original COOL measure.414 
7.172.  We note that the weekly and monthly Canadian-US fed and feeder cattle price basis 
fluctuates over time based on the interaction of supply and demand, making price basis trend forecast difficult. In particular, it is not possible to fully appreciate the implications of the volatility of the price basis by simply lookin g at its evolution over time. Failing to consider the set of factors 
underlying the evolution of the price basis could in fact lead to misleading inferences. In addition, 
we agree with the United States that the comparis on of the average pre-original COOL basis to the 
average post-original COOL basis hinges on the be nchmark period considered, i.e. the length of 
the pre-original COOL period. This applies also to the figures advanced by the United States. 
For instance, the United States argues that the average Nebraska/Alberta fed cattle basis for the 
period 2003 to 2009 was 17 cents per pound, while the average basis for the period 2009 to 2013 
was 10 cents per pound.
415 However, if the pre-original COOL period is extended to cover 1992 to 
2009416, the average fed cattle basis would be lower, contradicting the United States' argument 
that the average price basis has narrowed. 
7.173.  Instead of relying exclusively on averages, as suggested by the United States, we also 
consider the actual trend of the price basis. Based on weekly Alberta-Nebraska basis data 
submitted by Canada and also relied upon by the United States417, we observe that the linear 
trend of the post-original COOL price basis is slightly negative, suggesting a slightly wider margin 
trend for the October 2008 to February 2014 peri od, even though the average weekly fed steers 
basis for this period is smaller in absolute value than the average basis for the May 2001 to September 2008 period.
418 Based on monthly Nebraska-Alberta fed basis data submitted by the 
United States, the positive linear trend of the post-original COOL price basis implies a wider 
margin trend for the period from September 2008 to December 2013419 – as illustrated in Figure 1. 
                                               
407 See Exhibits CDA-24, CDA-42 (BCI), CDA-45 (BCI), CDA-52 (BCI), CDA-54 (BCI), and CDA-55 (BCI). 
408 Panel Reports, US – COOL , para. 7.378. See exhibits CDA-43 (BCI), CDA-46 (BCI), CDA-47 (BCI), 
CDA-48 (BCI), CDA-50 (BCI),  CDA-52 (BCI), CDA-53 (BCI), CDA-54 (BCI), CDA-56 (BCI), and MEX-18 (BCI). 
409 Panel Reports, US – COOL , para. 7.379. See Exhibits CDA-59, CDA-60, CDA-61, and CDA-63. 
410 See Exhibits CDA-45 (BCI), CDA-46 (BCI), CDA-49 (BCI), and CDA-55 (BCI). 
411 Panel Reports, US – COOL , paras. 7.356 and 7.374. See Exhibits CDA-19, CDA-24, CDA-25, CDA-29, 
CDA-33, CDA-37, CDA-43 (BCI), CDA-49 (BCI), CDA-50 (BCI), CDA-52 (BCI), CDA-53 (BCI), CDA-63, CDA-69, 
MEX-19 (BCI), MEX-22, MEX-23, and MEX-28. 
412 Canada's second written submission, para. 17 an d response to Panel question No. 19. See also 
Exhibits CDA-108, CDA-157, CDA-179, and CDA-180. 
413 United States' comments on Canada's  response to Panel question No. 19. 
414 Exhibit US-78. 
415 United States' comments on Canada's  response to Panel question No. 19. 
416 See Exhibit US-62. 
417 United States' comments on Canada's  response to Panel question No. 19. 
418 Exhibit CDA-179. Weekly data on fed heifers basis displayed in Exhibit CDA-179 only covers the 
period May 2001 to November 2010. Similarly, monthly data on both fed steers and heifers price basis in Exhibit CDA-180 only cover the period January 2005 to December 2012. 
419 Exhibit US-78. WT/DS384/RW • WT/DS386/RW 
 
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  Figure 1: Weekly Alberta-Nebraska Fed Steers Basis with linear trends420 
‐0.8‐0.7‐0.6‐0.5‐0.4‐0.3‐0.2‐0.10$CA/lb
Basis steer (pre-COOL) Basis steer (post-COOL)
linear trend (pre-COOL) linear trend post-COOL 
 
 7.174.  Despite the methodological uncertainties pointed out by the United States, we consider 
that the data on fed cattle price basis provided by both parties
421 show a slight trend in the 
widening of the price basis to the detriment of Canadian cattle for the period September/October 2008 to December 2013/Februa ry 2014, following the implementation of the 
original COOL measure. In particular, the price basis of fed cattle has increased, in absolute values 
and on average, by 3% weekly for the period October 2008 to February 2014 and by 10% monthly for the period from September 2008 to December 2013. 
7.175.  We reach similar conclusions when considering a polynomial trend of order 2 of the post-
original COOL price basis (Figure 2), which shows in particular that the widening trend of the fed 
cattle price-basis has been more pronounced since March 2011, as Canada argues. 
                                               
420 Exhibit CDA-179. 
421 Exhibits CDA-179, CDA-180, and US-78. WT/DS384/RW • WT/DS386/RW 
 
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  Figure 2: Weekly Alberta-Nebraska Fe d Steers Basis with non-linear trends422 
-0.8-0.7-0.6-0.5-0.4-0.3-0.2-0.10$CA/lb
Basis steer (pre-COOL) Basis steer (post-COOL)
non-linear trend (pre-COOL) non-linear trend post-COOL 
 
 7.5.4.1.4  Conclusion on detrimental impact
423 
7.176.  In light of the above, we find that, in the context of the muscle cut labels, and in 
comparison with the original COOL measure, the amended COOL measure creates an increased 
incentive in favour of processing exclusively domestic livestock and an increased disincentive 
against handling imported livestock.424 Accordingly, in the context of the muscle cut labels, the 
amended COOL measure entails increased detrimental impact on imported livestock. 
7.5.4.1.5  Actual trade effects 7.5.4.1.5.1  Parties' arguments 
7.177.  Canada submitted an updated version of the econometric study prepared by 
Professor Sumner in the original dispute
425 with a view to providing evidence of the actual trade 
effects of the amended COOL measure. In particular, this Updated Sumner Econometric Study426 
attempts to show that the negative and signif icant impact of the original COOL measure on 
Canadian livestock's price basis and import ratio427 persisted through the end of 2013 and 
beginning of 2014, and that the implementation  of the amended COOL measure negatively 
affected prices and shares of imported livestock. 
                                               
422 Exhibit CDA-179. 
423 These conclusions apply to the amended CO OL measure in regard to muscle cuts from 
US-slaughtered livestock (Categories A-C). As explained ab ove, the complainants do not bring claims either in 
regard to muscle cuts from foreign- slaughtered animals (Cat egory D) or the ground meat aspect of the 
amended COOL measure (Category E). See sections 7. 1 and 7.4 above. See also Canada's and Mexico's 
responses to Panel question No. 47. 
424 See Panel Reports, US – COOL , para. 7.420. 
425 For the Sumner Econometric Study addressed in the original disput e, see Exhibits CDA-64, CDA-79, 
CDA-152, CDA-174, and CDA-228 in the original dispute. 
426 See Exhibits CDA-71, CDA-179, CDA-180, and CDA-181. 
427 Panel Reports, US – COOL , para. 7.542. Appellate Body Reports, US – COOL , para. 326. WT/DS384/RW • WT/DS386/RW 
 
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  7.178.  The parties disagree on the methodology of the Updated Sumner Study and the validity of 
its findings. Canada argues that the Updated Sumner Econometric Study428 with more recent data 
(December 2003/September 2005 to December 2012) confirms that from 2010 through 2012 the original COOL measure continued to drive down the Canadian-US fed cattle price basis and imports 
of Canadian cattle and hog as a share of US feed or slaughter placements.
429 Canada further 
submits that the significant negative long-run impact of the original COOL measure is robust to the separated inclusion of (i) additional variables (i.e. the difference in unemployment rate in the 
United States and Canada, a dummy variable for the 2008 economic recession and the producer 
price index for truck transportation)
430; (ii) using monthly rather than weekly data431; and 
(iii) extending the sample period up to November 2013/February 2014.432 Canada further argues 
that the amended COOL measure exacerbates the or iginal COOL measure's negative trade effects 
on Canadian livestock in terms of price basis and import flows.433 
7.179.  The United States disagrees with Canada's conclusions. It considers the estimations of the 
long-run impact of the original and amended COOL measures to be overstated, and to suffer from 
inflated statistical significance.434 The United States posits that there are numerous data and 
methodological shortcomings, including (i) the use of weekly rather than monthly data (i.e. inaccurate unofficial weekly cattle import data
435 and unclear construction of weekly data from 
quarterly or monthly data436); (ii) the failure to extend the sample period back to 2000437; and 
(iii) the lagging nature of the unemployment difference as a recession proxy.438 
7.180.  The United States adds that the econom etric model of the Updated Sumner Econometric 
Study is misspecified. In particular, the study su ffers from "omitted variab le bias" by failing to 
include simultaneously all the factors affecting livestock demand and supply in both Canada and 
the United States, namely: (i) the 2008 economic recession dummy; (ii) the 2003-2005 US ban on Canadian cattle due to an occurrence of BSE in the Canadian herd; (iii) transportation costs; 
(iv) feed costs; and (v) Canada's cattle-slaughter capacity expansion.
439 Accordingly, the 
United States contends, the estimations of the original COOL measure account not only for the original COOL measure's own effects on the price basis or import ratio but also capture some 
impacts of the missing variables on the price basis or import ratio, resulting in overestimated or 
underestimated coefficients of the original and amended COOL measure.
440 
7.181.  In addition, the United States claims that the asymptotic standard errors of the long-run 
estimated coefficients used to infer the statistical significance are artificially too low, which falsely 
                                               
428 The benchmark econometric specification is a dyna mic model where the dependent variable (imports 
of Canadian cattle and hog as a share of US feed or  slaughter placements or the price difference between 
imported Canadian and US livestock) is a function of  the lagged dependent variab le, the difference in the 
exchange rate ratio between US dollar  and Canadian dollar, monthly dummie s, and the impact of the original 
COOL measure. The impact of the original COOL meas ure is characterized by a so-called dummy variable, 
which takes the value of zero before the entry into force of the original COOL measure and one afterwards to 
represent its implementation. In addition, the benchmark specification of the import cattle ratio and cattle price basis include a dummy variable for the implementation of the specified risk material regulation (RSM) in 
Canada and another dummy variable fo r the reopening of US border to Canada cattle over 30 months old 
following the US ban because of Canada's Bovine Sp ongiform Encephalopathy (B SE) crisis. The benchmark 
specification of the cattle price basis also includes a la gged exchange rate ratio. The benchmark specification of 
the import hog ratio also includes a time trend variab le and a dummy variable for the closing of Maple Leafs 
plants in Canada. The Sumner Econometric Study in the original proceedin gs covered the period 
December 2003/September 2005 to August 2010. See Exhibits CDA-64, CDA-79, CDA-152, CDA-174, and CDA-228 in the original dispute. 
429 Canada's first written submission, paras. 61-62;  and Exhibit CDA-71, replaced by CDA-179.  
430 Canada's response to Panel question D(iii).  
431 Canada's response to Panel question D(iv). Estima tion for feeder cattle using monthly data was not 
possible because of data unavailability.  
432 Canada's response to Panel questions C and E. 
433 Canada's response to  Panel question E. 
434 See United States' second written submission, para. 140. 
435 See United States' second written submission, para. 141. 
436 See United States' comments on Cana da's response to Panel question E. 
437 See United States' second written submission, footnote 258. 
438 See United States' second written submission, footnote 258. 
439 See United States' second written submission, footnote 258; and comments on Canada's response to 
Panel question E. 
440 See United States' comments on Cana da's response to Panel question E. WT/DS384/RW • WT/DS386/RW 
 
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  inflates the level of confidence in the original COOL measure's estimated impact.441 Referring to 
another econometric study on the impact of the original COOL measure undertaken by Professor 
Sumner and S. Pouliot442, the United States suggests using a different method, known as 
bootstrap procedure, to estimate consistent standards errors of the Updated Sumner Econometric 
Study's parameters.443 
7.182.  Mexico does not submit any evidence similar to Canada's Updated Sumner Econometric 
Study. 
7.5.4.1.5.2  Panel's analysis 
Methodology 
7.183.  For the reasons evoked by the original pane l, we review this evidence – even though, as 
confirmed in the original dispute, there is no need to verify actual trade effects to dispose of claims 
under Article 2.1 of the TBT Agreement.444 Like the original panel, we consider that it is not our 
duty to establish a unified econometric report, but rather assess, in light of the arguments raised 
by the parties, the robustness of the econometric re sults to the inclusion of additional explanatory 
variables and extension of the sample period.445 
7.184.  The objective of the Updated Sumner Econometric Study is to isolate and quantify the 
effect of the original and amended COOL measures  on trade quantities (import ratios) and price 
basis. The use of econometrics to isolate those effects also allows for a quantification of different 
factors that explain the evolution of livestock's price basis and import ratio, such as the general 
economic situation, the occurrence of a specific ev ent (e.g. BSE ban), seasonal effects, changes in 
transportation costs, exchange rate fluctuations , and other relevant determinants. We agree that 
such factors could affect or possibly invalidate any conclusions on the estimation of the impact of 
the original and amended COOL measure on the quantity and price of imported livestock. 
7.185.  We also consider that assessing each estimated factor in the econometric specification 
hinges on the degree of confidence and reliability of such estimates, defined as the level of 
statistical significance. As noted in the original dispute446, a given variable is usually said to be 
statistically significant when there is at most a 5% probability that the value of the estimated 
coefficient is due to chance or random error. Put differently, there is at least a 95% probability 
that the value of the coefficient variable  in question is different from zero.447 
7.186.  The Updated Sumner Econometric Study relies on a dynamic model specification to 
estimate the short- and long-run impacts of the original and amended COOL measures. The long-
run estimation of the COOL impact is a non-linear function of the short-run coefficient of the COOL 
measure dummy variable and the lagged dependent variable's coefficient. It assumes that the model is in its steady state (i.e. stable production and consumption over time). To compute the 
standard errors of the long-run coefficients, the Updated Sumner Econometric Study uses a linear 
approximation, known as the delta method.
448 
7.187.  In principle, the asymptotic standard errors that are obtained from using linear 
approximations can command confidence. However, as pointed out by the United States449, 
the asymptotic standard error of a non-linear function, such as the long-run coefficients, can be too optimistic.
450 A bootstrap procedure, as proposed by the United States, estimates consistent 
                                               
441 See United States' comments on Cana da's response to Panel question E. 
442 See Exhibit US-76, pp. 19-20. 
443 See United States' comments on Canada's resp onse to Panel question E; and Exhibit US-77. 
444 See Panel Reports, US – COOL , paras. 7.438-7.453; and Appellate Body Reports, US – COOL , 
paras. 314-326. 
445 See Panel Reports, US – COOL , para. 7.539. 
446 See Panel Reports, US – COOL , para. 7.510. 
447 R.A. Fisher, Statistical Methods for Research Workers , 1st ed. (Oliver & Boyd, 1925). 
448 See Exhibit CDA-79 in the original dispute. See also Rao, C. R., Linear Statistical Inference and Its 
Applications , (John Wiley, 1965); and Gary W. Oehlert, A Note on the Delta Method , The American Statistician, 
1992, Vol. 46, No. 1, pp. 27-29.  
449 See United States' comments on Canada's resp onse to Panel question E; and Exhibit US-76. 
450 See Exhibit US-77, p. 148. WT/DS384/RW • WT/DS386/RW 
 
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  standard errors (that is to say more conservative and accurate than the asymptotic ones); 
however, the problem of a potentially artificially high level of confidence is less severe when the sample size is large.
451 As the sample size considered in the Updated Sumner Econometric Study is 
rather large452, this problem of a potentially artificially high level of confidence should in theory be 
less severe. 
7.188.  The short-run COOL impacts do not suffer from this specific problem of potentially 
artificially high level of confidence associated with the standard errors of a non-linear function. 
Accordingly, our review of the Updated Sumner  Econometric Study focuses primarily on the 
estimated short-run rather than long-run COOL impacts. 
Robustness of the original COOL measure's estimated impact 
7.189.  Based on our review of the 192 "ordinary least squares" estimations of the Updated 
Sumner Econometric Study (92 estimations for cattle and 100 for hogs), we conclude that the 
estimated short-run impact of the original COOL measure is robust to the inclusion of the above-mentioned additional explanatory variables
453, the extension of the sample period up to November 
2013/February 2014, and the use of monthly data. In fact, the original COOL dummy variable has 
a negative and significant short-run impact at the 5% level in 153 estimations (80%) out of the 192 estimated specifications. This figure rises to 175 estimations (91%) when a 10% significance 
level is considered.
454 
7.190.  As noted455, the United States argues that the Updated Sumner Econometric Study suffers 
from omitted variable bias. We are unable to fully assess this in the absence of actual regression results of the econometric specification modified to incorporate simultaneously the United States' 
additional variables. For instance, it is impossible to assess whether the inclusion of all the 
variables suggested by the United States might lead to multicollinearity
456, thus altering the 
confidence interval of these variables' estimated coefficients. Further, the dynamic specification of 
the Updated Sumner Economic Study's model th rough the inclusion of the lagged dependent 
variable (i.e. import ratio or price basis) reduces any potential variable omission bias. The findings of the Updated Sumner Econometric Study regardin g the original COOL measure impacts are also 
in line with the above-mentioned study by Prof essor Sumner and S. Pouliot submitted by the 
United States.
457 This latter study finds a significant impact of the original COOL measure through 
the widening of the price bases and a decline in ra tios of Canadian imports to total domestic use 
for both fed and feeder cattle for the September 2005 to December 2010 period. Even though its 
model is specified differently, this study reaches the same conclusion as the Updated Sumner 
Econometric Study.458 
Robustness of the amended COOL  measure's estimated impact 
7.191.  In light of our review of the Updated Sumner Econometric Study with the most recent data 
up to February 2014, we conclude that the amended COOL measure's estimated impact is not sufficiently robust. The amended COOL measure' s estimated impact in the Updated Sumner 
Econometric Study is negative and significant in most regressions of the cattle price basis 
                                               
451 See Hamilton, James, Time Series Analysis , (Princeton University Press, 1992); and 
MacKinnon, J. G., Bootstrap Methods in Econometrics , The Economic Record, The Economic Society of 
Australia, 2006, Vol. 82 (s1), pp. S2-S18, 09.  
452 The sample size ranges from 251 to 530 weekly observations and from 85 to 95 monthly 
observations. 
453 Namely transport costs, difference in unemploy ment rate in the United States and Canada, and 
recession dummy variables. See para. 7.178 above. 
454 The fact that the level of confidence of the (negat ive) effect of the original COOL measure varies by 
model specification is not uncommon, as long as the variable of interest remain significant in most specifications. 
455 See para. 7.180 above. 
456 For a definition of multicol linearity, see Panel Reports, US – COOL , para. 7.537. 
457 See Exhibit US-76. 
458 Namely the study by Professor Sumner and S. Pou liot includes the following additional variables: 
dummy variables for the week of In dependence Day, Thanksgiving and Christmas; two week lag of the 
dependent variable; price of corn in the United States; price of barley in Canada; and transportation cost and 
difference in unemployment. See Exhibit US-76. WT/DS384/RW • WT/DS386/RW 
 
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  specification. However, it is not significant in most of the specifications for cattle and hogs import 
ratios. 
7.192.  As suggested by Canada, this lack of sign ificance is probably due to the very small number 
of weekly data available in the sample with on ly 11 observations for the amended COOL measure 
dummy (out of 430, 431, or 530 total observations). More data covering a longer post-amended 
COOL period would be necessary to draw any reliable conclusion on the robustness of the 
amended COOL measure's estimated impact in the Updated Sumner Econometric Study. 
Conclusion 
7.193.  Accordingly, we consider that the updated Sumner Econometric Study is robust in showing 
that the negative and significant impact of the original  COOL measure on the price basis and 
import shares of Canadian livestock persiste d through the end of 2013 and beginning of 2014. 
However, the econometric evidence on the impact of the amended  COOL measure on the price 
basis and import ratio is limited and not robust. Consequently, although the Updated Sumner Econometric Study provides additional useful information as regards the original COOL measure, 
we cannot read it as lending econometric support to our above finding that, in the context of 
muscle cuts, the amended COOL measure has increased detrimental impact on imported livestock relative to domestic like products. 
7.5.4.2  Legitimate regulatory distinctions 
7.5.4.2.1  Legal test 7.194.  The Appellate Body has explained that a finding of de facto detrimental impact on 
competitive opportunities for imported products "is not dispositive of less favourable treatment 
under Article 2.1. Instead, a panel must further analyse whether the detrimental impact on 
imports stems exclusively from a legitimate regulatory distinction rather than reflecting discrimination against the group of imported products."
459 In the original dispute, the 
Appellate Body summarized the inquiry into legi timate regulatory distinctions as follows: 
[S]ome 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 a 
legitimate regulatory distinction. In contrast, where a regulatory distinction is not 
designed and applied in an even-handed manner—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 thus the 
detrimental impact will reflect discrimination prohibited under Article 2.1. In assessing 
even-handedness, 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".
460 
7.195.  Having found de facto  detrimental impact on imports from the amended COOL measure, 
we proceed to examine whether such impact "stems exclusively from a legitimate regulatory 
distinction". Following the Appellate Body's guidance, we first identify the relevant regulatory 
distinctions drawn by the amended COOL measure461, and then proceed to assess the legitimacy of 
such distinctions.462 
                                               
459 Appellate Body Report, US – Clove Cigarettes , para. 182. 
460 Appellate Body Reports, US – COOL , para. 271 (footnotes omitted) (citing Appellate Body Reports, 
US – Clove Cigarettes , para. 182; and US – Tuna II (Mexico) , paras. 215-216). 
461 See Appellate Body Reports, US – Clove Cigarettes , para. 222 (identifying the distinction drawn 
between prohibited and permit ted types of cigarettes); and US – Tuna II (Mexico) , para. 284 (identifying the 
distinction drawn between "label ling conditions for tuna products containi ng tuna caught by setting on dolphins 
in the ETP, on the one hand, and for tuna products co ntaining tuna caught by other fishing methods outside 
the ETP, on the other hand"). 
462 See also Panel Reports, EC – Seal Products , para. 7.174. Specifically, the panel in EC – Seal 
Products , which was the first to examine "legitimate regulatory distinctions" under Article 2.1 following the TBT 
trilogy of Appellate Body Reports, cons idered this element to "entail[] an analysis of two main questions: (a) 
 WT/DS384/RW • WT/DS386/RW 
 
- 88 - 
 
  7.5.4.2.2  Relevant regulatory distinctions 
7.5.4.2.2.1  Relevant distinctions under the original and amended COOL measures 
7.196.  In evaluating the legitimacy of regulatory  distinctions under the original COOL measure, 
the Appellate Body began by "identify[ing] the relevant regulatory distinction", and made two 
observations in this respect. First, the Appella te Body noted that the original COOL measure 
"define[d] the origin of beef and pork as a function of the countries in which certain steps of the production process (birth, raising, and slaughter)  take place" and, second, that it "require[d] 
retailers of muscle cuts of beef and pork to label that meat with one of four mandatory labels".
463 
On this basis, the Appellate Body "consider[ed] that it is the distinctions between the three production steps, as well as between the four types of labels that must be affixed to muscle cuts of 
beef and pork, that constitute the relevant regu latory distinctions under the [original] COOL 
measure".
464 
7.197.  The relevant regulatory distinctions identified by the Appellate Body remain broadly intact 
under the amended COOL measure. As explained above, the amended COOL measure retains the 
definition of origin as a function of the countries of birth, raising, and slaughter.465 Further, 
the amended COOL measure continues to require re tailers to label muscle cuts of beef and pork 
with mandatory labels based on the statutory Cate gories A, B, C, and D. The 2013 Final Rule 
revises Labels A-C so that they provide explicit information on the three production steps, while 
the origin indication on Label D remains the same as under the original COOL measure.466 
7.198.  Thus, the regulatory distinctions under the amended COOL measure are essentially the 
same as those under the original COOL measure. Accordingly, we consider that the distinctions 
between the three production steps as well as the mandatory labels to be affixed to muscle cuts of 
beef and pork are relevant regulatory distin ctions under the amended COOL measure for the 
purposes of our analysis under Article 2.1 of th e TBT Agreement. The parties do not dispute that 
these are relevant regulatory distinctions under the amended COOL measure.467 
7.5.4.2.2.2  Other aspects of the amended COOL measure 7.199.  The parties dispute the relevance of other aspects of the amended COOL measure for the 
Panel's assessment of legitimate regulatory distinctions. In particular, the United States stresses 
the Appellate Body's statement that "in an analysis under Article 2.1, we only need to examine the 
distinction that accounts for the detrimental impact on [imported] products as compared to [domestic] products".
468 The United States argues from this premise that the complainants 
inappropriately challenge "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".
469 According to the United States, these include: (i) the exemptions and defined 
scope of the amended COOL measure; (ii) Label D for muscle cuts derived from foreign-
slaughtered animals; (iii) the COOL statute's proh ibition of a trace-back system; and (iv) Label E 
for ground meat products. We address each of these in turn. 
Exemptions under the amended COOL measure 
7.200.  With regard to the relevance of the exemptions, the complainants highlight the 
Appellate Body's reference in its Article 2.1 analys is to exempted products, and point out that the 
                                                                                                                                               
first, what are the relevant regulato ry distinctions under the [measure]; and (b) second, are such regulatory 
distinctions 'legitimate'". 
463 Appellate Body Reports, US – COOL , para. 341. 
464 Appellate Body Reports, US – COOL , para. 341. 
465 See section 7.3.1.1 above. 
466 See section 7.3.1.2 above. 
467 See Canada's second written submission, para. 47;  Mexico's first written submission, paras. 118-
119; and United States' second written submission, para. 19. 
468 See e.g. United States' first written submission, para. 81 (citing Appellate Body Report, US – Tuna II 
(Mexico) , para. 286 (emphasis original)). 
469 United States' first written submission, para. 81. WT/DS384/RW • WT/DS386/RW 
 
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  exemptions under the original COOL measure are unchanged by the 2013 Final Rule.470 
The United States counters that the exemptions are outside the Article 2.1 inquiry as they do not cause any detrimental impact.
471 In particular, the United States cites the original panel's 
statements that "[t]he exact proportion or magnitud e of the exceptions or exclusions is irrelevant 
for our review of the complainants' claims  under Article 2.1 of the TBT Agreement"472, and that 
"the exceptions to the coverage of the COOL me asure do not alter the distribution of compliance 
costs for livestock and meat producers and processors in a way that would modify the incentives 
created by the COOL measure".473 The United States thus argues that the exemptions and scope of 
the amended COOL measure "cannot explain whet her the detrimental impact stems exclusively 
from legitimate regulatory distinctions".474 
7.201.  We draw guidance from the Appellate Body 's examination of the original COOL measure, 
where it "consider[ed] relevant 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'".475 We agree 
with the United States that the exemptions were no t explicitly identified by the Appellate Body as 
relevant regulatory distinctions, and that they were not found by the original panel to be a source of detrimental impact. Nevertheless, the exemptions  formed a key element of the Appellate Body's 
evaluation of the legitimacy of regulatory distinctions under the original COOL measure.
476 
7.202.  In our view, this is consistent with the Appellate Body's explanation that, having 
determined the detrimental impact and relevant regulatory distinctions under 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".
477 In the 
original dispute, the three production steps and fo ur muscle cut labels were distinctions drawn by 
the original COOL measure that did not operate in isolation, but were given effect in conjunction 
with other elements essential to the measure's design and operation.478 The assessment of 
legitimate regulatory distinctions took account of the "overall architecture"479 of the measure, and 
encompassed aspects of the measure that were no t themselves "relevant regulatory distinctions" 
or independent sources of detrimental impact.480 
7.203.  The requirement for a broad appraisal of a measure's design and application is also 
consistent with the notion that detrimental impact forms the foundation, but not the entirety, of the inquiry into legitimate regulatory distinctions.
481 Indeed, as the United States has emphasized, 
discrimination under Article 2.1 must not be equated to detrimental impact alone.482 Therefore, 
                                               
470 See Canada's first written submission, paras. 69- 71, and second written submission, paras. 28-30; 
Mexico's first written submission, paras. 133-137, and second written submission, paras. 49 and 61-65. 
471 See United States' first written submission, para . 87 and second written submission, paras. 60-61. 
472 United States' first written submission, para. 88 (citing Panel Reports, US – COOL , para. 7.417). 
473 United States' first written submission, para. 88 (citing Panel Reports, US – COOL , para. 7.419). 
474 United States' second written submission, para. 61. 
475 Appellate Body Reports, US – COOL , para. 344. 
476 See, e.g. Appellate Body Reports, US – COOL , para. 348 ("We emphasize  that … the limited 
consumer information conveyed through the retail labelling requirements and exemptions  therefrom … is of 
central importance  to our overall analysis under Article 2.1") (emphasis added). 
477 Appellate Body Reports, US – COOL , para. 271 (citing Appellate Body Report, US – Clove Cigarettes , 
para. 182). 
478 As explained further below, these elements included  the recordkeeping of required information as 
well as the exemptions from ultimately  providing such information to cons umers. See Appellate Body Reports, 
US – COOL , paras. 342 and 344. 
479 Appellate Body Reports, US – COOL , para. 346. 
480 This incorporation of the exemptions into the Article 2.1 analysis is not at odds with the findings of 
the original panel that the exemptions do not in themselves "alter the distribution of compliance costs for livestock and meat producers and pr ocessors in a way that would modi fy the incentives created by the 
COOL measure." See Panel Reports, US – COOL , para. 7.419. While they do not modify incentives to the 
detriment of imported livestock, they are relevant to the distinct question of wh ether that detriment stems 
exclusively from legitimate regulatory distinctions. 
481 See, e.g. Appellate Body Reports, US – COOL , para. 327 (placing focus on whether "the detrimental 
impact reflects discrimination  in violation of Article 2.1") (emphasis added). See also Appellate Body 
Reports, US – Tuna II (Mexico) , para. 231; and US – Clove Cigarettes , para. 224; and United States' second 
written submission, para. 20. 
482 See, e.g. United States' second written submission, para. 10, and opening statement at the meeting 
of the Panel, para. 3. WT/DS384/RW • WT/DS386/RW 
 
- 90 - 
 
  although the exemptions under the amended COOL measure are not "relevant regulatory 
distinctions" as such, we nevertheless take them into account as part of our examination of the "overall architecture" of the amended COOL measure, insofar as they are relevant to whether "the detrimental impact reflects discrimination in violation of Article 2.1".
483 
Label D 
7.204.  As noted, the complainants clarify that they do not challenge Label D484, and no 
detrimental impact on foreign livestock has been demonstrated to derive from Label D 
requirements.485 In the original dispute, the Appellate Body explicitly identified "the distinctions 
between … the four types of labels that must be affixed to muscle cuts  of beef and pork" as 
relevant regulatory distinctions under the original COOL measure.486 Given the complainants' 
explicit delimitation of their claims and the lack  of demonstrated detrimental impact, however, the 
relevance of Label D for legitimate regulatory distinctions must accordingly be adjusted in this 
compliance dispute. To the extent that Label D co ncerns the "overall architecture" of the amended 
COOL measure, and hence is relevant to the analysis of legitimate regulatory distinctions, we 
consider it below as it relates to the relevant distinctions identified above for other muscle cut 
labels. 
Trace-back prohibition 
7.205.  It is in a similar light that the COOL statute's prohibition of trace-back could be considered 
under Article 2.1. In contrast to Label D an d the exemptions, the Appellate Body made no 
reference to the trace-back prohibition in its assessment of regulatory distinctions under the original COOL measure. The complainants put forward various arguments that this aspect of the 
amended COOL measure evidences a violation of Article 2.1.
487 We address these arguments 
below to the extent relevant to our overall examination of legitimate regulatory distinctions. 
Label E 
7.206.  With respect to Label E for ground meat products, we recall the finding in the original 
dispute that "the complainants ha[d] not demonstrated that the ground meat label under the COOL measure results in less favourable treatment for imported livestock."
488 We have explained 
above that the complainants do not challenge the ground meat label as a distinct claim in this 
                                               
483 Appellate Body Reports, US – COOL , para. 327. See also Appellate Body Report, US – Clove 
Cigarettes , para. 182. While we are mindful that "under Article 2.1, we only need to examine the distinction 
that accounts for the detrimental impact", we agree with Canada that this is not "intended to exclude everything from the analysis that is extraneous to the regulatory distinction(s) that cause the detrimental impact on imported products".  See Appellate Body Report, US – Tuna II (Mexico) , para. 286 (emphasis 
original); and Canada's second writte n submission, para. 48. As Canada po ints out, such a narrow approach 
would contradict the Appellate Body's general guidance  under Article 2.1 and conflict with its analytical 
approach in the original dispute. At the same time , the broad examination of the amended COOL measure 
encompassing its "overall architecture" is not without limits, and consideration of other "extraneous" factors 
must remain anchored in the measure's relevant regulatory distinctions and detrimental impacts. In this connection, we note Me xico's differentiation between "detrimental impact", "relevan t regulatory distinction(s)", 
and "facts and circumstances related to the design and application of the relevant regulatory distinction(s)". 
Mexico raises aspects of the amended COOL measure that, in its view, relate to the third of these three concepts, but that are not themselves "regulatory distinctions". See Mexico's opening statement at the meeting of the Panel, para. 28. 
484 See Canada's and Mexico's responses to Panel question No. 47. 
485 See paras. 7.128-7.132 above. 
486 Appellate Body Reports, US – COOL , para. 341 (emphasis added). 
487 See, e.g. Canada's first writ ten submission, para. 87, and second written submission, para. 45; 
Mexico's first written submission, para. 143. 
488 Panel Reports, US – COOL , para. 7.437. The Appellate Body "[did] not address the additional 
category for ground meat (Category E) and the associat ed labelling rules since the Panel concluded that the 
complainants had not established that these result in less favourable treatment for imported livestock, and no participant appeals this findin g". Appellate Body Reports, US – COOL , footnote 388. WT/DS384/RW • WT/DS386/RW 
 
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  compliance dispute.489 Rather, Canada and Mexico advance arguments that the ground meat label 
evidences a lack of even-handedness or legitimacy  of regulatory distinctions under Article 2.1.490 
7.207.  These arguments do not affect the original finding that the ground meat label had not been 
shown to result in less favourable treatment for imported livestock.491 Further, we see no reason 
to depart from the Appellate Body's non-inclusio n of the ground meat label among the relevant 
regulatory distinctions under the original COOL measure, or from the unappealed findings of the original dispute with respect to the ground meat label.
492 A c c o r d i n g l y ,  w e  f i n d  t h a t  t h e  g r o u n d  
meat label does not constitute a relevant regulatory distinction of the amended COOL measure for 
the purposes of Article 2.1. 
7.5.4.2.3  Appellate Body analysis of legitima te regulatory distinctions in the original 
dispute 
7.208.  Having determined that the original panel's analysis under Article 2.1 was "incomplete" for 
having concluded on a finding of detrimental impact493, the Appellate Body reviewed a number of 
the original panel's factual findings that "provided a sufficient basis for [it] to determine whether 
the detrimental impact on Canadian and Mexican livestock stems exclusively from a legitimate 
regulatory distinction".494 It then proceeded to "examine, based on the particular circumstances of 
this case, whether these distinctions are designed and applied in an even-handed manner, or 
whether they lack even-handedness, for example,  because they are designed or applied in a 
manner that constitutes arbitrary or unjustifiable discrimination".495 
7.209.  The Appellate Body "start[ed] by considering the recordkeeping and verification 
requirements imposed by the COOL measure, whic h the Panel found to the be the source of the 
incentive for US producers to process exclusively domestic livestock", and described the associated 
burden placed on upstream livestock and meat producers.496 
7.210.  The Appellate Body next found that "[a]s designed and applied, however, the COOL 
measure does not impose labelling requirements for meat that provide consumers with origin 
information commensurate  with the type of origin information that upstream livestock producers 
and processors are required to maintain and transmit".497 I n  s u p p o r t  o f  t h i s  c e n t r a l  p o i n t ,  t h e  
Appellate Body made a series of observations about the original COOL measure concerning: the 
                                               
489 See section 7.4 above. 
490 In particular, Canada argues that  "the logic that underpinned the Ap pellate Body's analysis weighs in 
favour of the amended COOL measure's treatment of gr ound meat being regarded as a relevant factor in 
assessing the measure's consistency with TBT Article 2.1" . Canada's second written submission, paras. 40-42; 
see also Canada's first written submission, para. 81. Mexi co argues that "[i]n light of the ostensible consumer 
information objective of the measure, providing such flex ibility for one form of beef product and not for another 
form is completely arbitrary". Mexico's first written submission, para. 140. According to Mexico, "[i]t is irrelevant that a differe nt production method is used for the beef" as  ground beef and muscle cuts are sold to 
the same US consumers, and because "[t]he objective at  issue does not relate to the method of processing 
but, rather, to the origin content of the processed beef when viewed from the perspective of the U.S. 
consumer". Mexico's second written submis sion, para. 70. See also para. 7.280 below. 
491 Canada and Mexico's arguments focus on the flex ibilities for ground meat and the accuracy of 
resulting labels, but they do not a ddress whether and how the ground me at labelling rules account for any 
alleged detrimental impact on imported livestock. Indeed, the original panel reviewed in detail the features of the ground meat labelling rules and their flexibility, be fore noting that Canada and Mexico "ha[d] not made 
specific arguments in response to the United States' co ntentions regarding this flex ibility, nor as to how any 
remaining costs would affect imported livestock less favourably in the context of ground meat". See Panel Reports, US – COOL , paras. 7.421-7.436. 
492 The ground meat label is ther efore different from th e trace-back prohibition. The trace-back 
prohibition was not similarly examined in the original dispute. The complainants present this as a novel argument in this compliance dispute in light of the Appellate Body's elaboration of the Article 2.1 legal test. 
493 Appellate Body Reports, US – COOL , para. 293. 
494 Appellate Body Reports, US – COOL , para. 340. 
495 Appellate Body Reports, US – COOL , para. 341. 
496 Appellate Body Reports, US – COOL , para. 342. The Appellate Body noted in particular that livestock 
and meat producers were required "to track and transm it to their downstream bu yers information regarding 
the countries in which each production step took place for the animals and/or meat that they process". Ibid. 
497 Appellate Body Reports, US – COOL , para. 343 (original emphasis). WT/DS384/RW • WT/DS386/RW 
 
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  accuracy of labels and their omission of production step information; labelling flexibilities for 
commingled meat; and the exemptions from coverage.498 
7.211.  The Appellate Body additionally recall ed that, under the US market's particular 
circumstances, "the burden of the recordkeepin g and verification requirements, the consequent 
need for segregation, and the associated comp liance costs" combined to make processing 
exclusively domestic livestock "the least cost ly way of complying with the COOL measure".499 
The Appellate Body further reasoned: 
Taking account of the overall architecture of the COOL measure and the way in which 
it operates and is applied, we consider the detail and accuracy of the origin information that upstream producers are required to track and transmit to be significantly greater than the origin information that retailers of muscle cuts of beef 
and pork are required to convey to their cu stomers. That is, the labels prescribed by 
the COOL measure reflect origin information in significantly less detail than the information regarding the countries in which the livestock were born, raised, and 
slaughtered, which upstream producers and processors are required to be able to 
identify in their records and transmit to their customers.
500 
7.212.  On these grounds, the Appellate Body co ncluded that "[the original COOL measure's] 
recordkeeping and verification requirements impose a disproportionate burden on upstream 
producers and processors, because the level of information conveyed to consumers through the mandatory labelling requirements is far less detailed and accurate than the information required to be tracked and transmitted by these producers and processors."
501 Thus, "the detrimental impact 
caused by the same recordkeeping and verification requirements under the [original] COOL 
measure cannot be explained by the need  to provide information to consumers."502 
7.213.  Accordingly, the Appellate Body found that the detrimental impact on imported livestock 
did not stem exclusively from legitimate regulatory distinctions as "the regulatory distinctions 
imposed by the [original] COOL measure amount  to arbitrary and unjustifiable discrimination 
against imported livestock, such that they canno t be said to be applied in an even-handed 
manner".503 
7.5.4.2.4  Legitimate regulatory distin ctions under the amended COOL measure 
7.214.  Based on the Appellate Body's guidance, and in light of the parties' arguments, we turn to 
whether the amended COOL measure's detrimental impact "stems exclusively from … legitimate 
regulatory distinction[s]".504 In doing so, we take note of the analytical framework utilized by the 
EC – Seal Products panel, which was informed by the Appella te Body's approach to Article 2.1 of 
the TBT Agreement in the original dispute. According to the EC – Seal Products panel, the first 
element of this framework relates to whether the relevant distinctions are "rationally connected to 
the objective" of the measure.505 
7.215.  We consider the Appellate Body's approach in the original dispute to confirm the relevance 
of the challenged measure's objective to whether its detrimental impact stems exclusively from 
legitimate regulatory distinctions.506 The Appellate Body "point[ed] out, as a preliminary matter, 
                                               
498 Appellate Body Reports, US – COOL , paras. 343-344. 
499 Appellate Body Reports, US – COOL , para. 345. 
500 Appellate Body Reports, US – COOL , para. 346. 
501 Appellate Body Reports, US – COOL , para. 349. 
502 Appellate Body Reports, US – COOL , para. 349. 
503 Appellate Body Reports, US – COOL , para. 349. 
504 Appellate Body Reports, US – COOL , para. 271. See also Appellate Body Reports, US – Clove 
Cigarettes , para. 182; and US – Tuna II (Mexico) , para. 215. 
505 See Panel Reports, EC – Seal Products , para. 7.259. It should be noted that the panel also 
considered whether there was a justification for the regulatory distinctions unrelated  to the objective, and went 
on to examine even-handedness based on the particular re gulatory distinctions and fa cts of the dispute. Given 
its other findings under the TBT Agreement, the Appellate Body did not specifically re view the panel's analysis 
of legitimate regulatory distinctions under Article 2.1. 
506 See also US – Clove Cigarettes , para. 225 ("[W]e are not persuaded that the detrimental impact of 
[the challenged measure] on competitive opportunities for imported [products] does stem from a legitimate 
 WT/DS384/RW • WT/DS386/RW 
 
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  that the [original p]anel identified the objective pursued by the United States as being 'to provide 
consumer information on origin'".507 The Appellate Body also noted that the definition of origin 
under the original COOL measure was a function of  the three production steps (born, raised, and 
slaughtered), and that the "various categories for muscle cuts of meat, and the labelling 
requirements applicable to each, are particularly relevant to an inquiry as to the COOL measure's 
even-handedness".508 In addition, the Appellate Body displayed a concern for "the origin 
information that retailers of muscle cuts of b eef and pork are required to convey to their 
customers" in its overall assessment of the regulatory distinctions under the original COOL 
measure.509 This reflects the Appellate Body's understanding of the objective of the original COOL 
measure as being "the provision of consumer information on origin".510 
7.216.  We consider that the assessment of legitima te regulatory distinctions under Article 2.1 is 
different from the inquiry into the legitimacy of a technical regulation's objective, as well as from 
the review of a technical regulation's contribution to that objective. Whereas the latter inquiries form part of the necessity analysis under Article 2.2, which we discuss below, the analysis under 
Article 2.1 is confined to the specific distinctions drawn by the measure in conjunction with 
relevant aspects of the "the design, architecture, revealing structure, operation, and application of 
the technical regulation at issue".
511 Thus, we examine the regulatory distinctions of the measure 
in light of the objective the measure seeks to achieve. 
7.217.  As explained below, the objective of th e amended COOL measure is to provide consumer 
information on origin.512 Accordingly, taking the measure's objective as a point of reference, and 
drawing upon the Appellate Body's guidance, we assess the amended COOL measure according to 
the "disconnect"513 between "the detailed information required to be tracked and transmitted by 
[upstream] producers" and the information "conveyed to consumers through the labels prescribed under the [amended] COOL measure".
514 
7.218.  In particular, we scrutinize the two ma in types of informational "disconnect" from 
"the recordkeeping and verification requirements imposed on upstream producers and processers", as identified by the Appellate Body: 
a. "the meat or meat products are exempt from the labelling requirements altogether"; and 
b. "prescribed labels do not expressly identify specific production steps and, in particular 
for Labels B and C, contain confusing or inaccurate information".
515 
7.219.  The common comparator in the two informational disconnects516 is the recordkeeping 
required of upstream producers and processors. A ccordingly, we first address the information that 
must be kept upstream under the amended COOL measure. We then turn to the information 
ultimately conveyed  to retail consumers in the two respects outlined above to determine whether 
                                                                                                                                               
regulatory distinction. We  recall that the stated objective  of [the challenged measure] is to reduce youth 
smoking.") (emphasis added). 
507 Appellate Body Reports, US – COOL , para. 332 (footnote omitted). 
508 Appellate Body Reports, US – COOL , paras. 332-333. 
509 Appellate Body Reports, US – COOL , para. 346. 
510 See Appellate Body Reports, US – COOL , para. 433 (footnote omitted); and section 7.6.2.1 below. 
511 See section 7.5.4.2.2 above and Appellate Body Reports, US – Tuna II (Mexico) , para. 286 and US – 
COOL , para. 271 (citing Appellate Body Report, US – Clove Cigarettes , para. 182). Distinctions made in pursuit 
of a legitimate objective are not automatically "legitimate" under Article 2.1. Mexico clarifies that it does not challenge the legitimacy of the COOL objective pursue d by the United States, and refers to the panel in EC – 
Seal Products , which explained that "the existence of a legitimate objective will not automatically imbue the 
discrimination under Article 2.1 with legitimacy; were that to be the case, one would simply need to assess 
whether the detrimental impact stems from a 'legitimate' objective." See Panel Reports, EC – Seal Products , 
para. 7.279; Mexico's second written submission, paras. 30-32 and 60; and United States' first written submission, para. 79. 
512 See section 7.6.2.1 below. 
513 Appellate Body Reports, US – COOL , para. 347. 
514 Appellate Body Reports, US – COOL , para. 349. 
515 Appellate Body Reports, US – COOL , para. 349. 
516 Mexico refers to these as "two major inform ation asymmetries between the origin information 
collected and the origin information communicated to the consumer." Mexico's first written submission, para. 122. WT/DS384/RW • WT/DS386/RW 
 
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  the amended COOL measure's detrimental impact "stems exclusively from legitimate regulatory 
distinctions". 
7.5.4.2.4.1  Increased recordkeeping and verification 7.220.  As explained above, the recordkeeping an d verification provisions of the original and 
amended COOL measures are formally identical. In practice, however, the burden of complying 
with these requirements is closely linked to the "origin claim" required under the 2013 Final Rule. The amended COOL measure's revised labels result in the need for corresponding substantiation of 
the information on those labels. To the extent that greater and more detailed information is given 
on an "origin claim", it is incumbent upon upstream producers and processors to transmit and maintain such augmented information. Moreover, the greater segregation compelled under the amended COOL measure as a result of greater labe l variety means that records must differentiate 
between segregated livestock and muscle cuts.
517 
7.221.  It follows that "the information regarding the countries in which the livestock were born, 
raised, and slaughtered, which upstream producers and processors are required to be able to 
identify in their records and transmit to their customers"518, is now more exacting according to the 
increased diversity of origin claims. This is particularly evident in scenarios for which the original COOL measure permitted uniform origin claims for products of diverse origin, but which now must 
be differentiated by both retailers and suppliers. In such cases, substantiating documents 
maintained in the normal course of business wo uld need to be similarly differentiated to 
adequately verify the claimed origin, as corroborated by industry participants.
519 
7.5.4.2.4.2  Products exempt from labelling requirements  
7.222.  The Appellate Body took note of three ex emptions for retail labelling under the original 
COOL measure, namely for: 
a. entities not meeting the definition of the term "retailer"; 
b. ingredients in "processed food items"; and 
c. products served in a "food service establishment".520 
7.223.  The exemptions for "ingredient[s] in  a processed food item" and "food service 
establishments" are established by the COOL statute521, and are unchanged under the amended 
COOL measure.522 The USDA accordingly deemed amendments relating to the coverage of 
restaurants or the definition of processed foods to be "outside the scope of this rulemaking" for the 
2013 Final Rule.523 
7.224.  The definition of the term "retailer" is provided in the COOL statute by reference to the 
Perishable Agricultural Commodities Act of 1930 (PACA).524 In response to comments on amending 
this definition, the USDA stated that it "does not have the authority to develop an alternative 
definition … as it is not consistent with the COOL statute".525 The 2013 Final Rule does amend the 
definition, however, from a "retailer licensed under [PACA]"526 t o  " a n y  p e r s o n  subject to be  
licensed as a retailer under [PACA]".527 The USDA considered that "[t]his change more closely 
aligns with the language contained in the PACA regulation and clarifies that all retailers that meet 
                                               
517 See section 7.5.4.1.2.4 above. 
518 Appellate Body Reports, US – COOL , para. 346. 
519 See section 7.5.4.1.2.4 above. 
520 Appellate Body Reports, US – COOL , para. 334. 
521 See COOL statute, §§ 1638(2)(B) and 1638a(b), respectively. 
522 See section 7.3.2.2 above. 
523 2013 Final Rule, p. 31372. 
524 COOL statute, § 1638(6); see also 2009 Final Rule, § 65.240. 
525 2013 Final Rule, p. 31371. 
526 2009 Final Rule, § 65.240. 
527 2013 Final Rule, § 65.240 (emphasis added). WT/DS384/RW • WT/DS386/RW 
 
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  the PACA definition of a retailer, whether or no t they actually have a PACA license, are also 
covered by COOL".528 
7.225.  With respect to the practical implications of  this change for the coverage and application of 
the amended COOL measure, the United States explains: 
USDA understands that no more than a de minimis  number of entities operate without 
a PACA license even though they meet the licensing requirements. As such, the 
United States does not consider that there are any practical implications of this 
change for the coverage of the amended COOL measure.529 
7.226.  We therefore find that in effect the amended COOL measure retains essentially the same 
exemptions from coverage as existed under the original COOL measure. 
7.5.4.2.4.3  Accuracy of label information 
Label accuracy under the original COOL measure 
7.227.  As explained below530, the original and amended COOL measures share the same objective 
of providing consumer information on origin. In its assessment of regulatory distinctions made in 
service of that objective with respect to the original measure, the Appellate Body considered that 
"the origin information that must be conveyed to consumers is less detailed, and will often be less accurate" than the origin information maintained upstream.
531 The Appellate Body observed that 
"the [original] COOL measure requires the labels to list the country or countries of origin, but does 
not require the labels to mention production steps at all."532 The Appellate Body illustrated this 
point through several examples, including the following533: 
a. "Label A, indicating 'Product of the USA', which the Panel found to be the only label that 
provides 'meaningful information for consumers', is not required to refer explicitly to the 
productions steps of birth, raising, and slaughter." 
b. "If, for example, the relevant production st eps took place in more than one country, the 
relevant label (B or C) will identify more than one country, but will not identify which 
production step took place in which of those countries." 
c. "For Category D meat, the COOL measure requ ires only that the customs designation of 
origin be indicated. Given that the United States does not use the same definition of 
'origin' for customs purposes as it does fo r the COOL measure, a D Label will not convey 
information on the countries of birth or raising of the livestock from which the imported meat was derived." 
7.228.  The 2013 Final Rule requires that Label A for "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')."
534 Labels B and C are similarly augmented as muscle cuts 
from animals born and/or raised abroad and slaughtered in the United States "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')."
535 
7.229.  As a result, "origin designations for muscle cut covered commodities derived from animals 
slaughtered in the United States are required to specify the production steps of birth, raising, and slaughter of the animal from which the meat is derived that took place in each country listed on 
                                               
528 2013 Final Rule, p. 31368. 
529 United States' response to Pa nel question No. 2. See also section 7.3.2.2 above regarding the 
retention of processed food item and food serv ice establishment exemptions in unamended form. 
530 See section 7.6.2.1 below. 
531 Appellate Body Reports, US – COOL , para. 343. 
532 Appellate Body Reports, US – COOL , para. 343. 
533 Appellate Body Reports, US – COOL , para. 343. 
534 2013 Final Rule, § 65.300(d). 
535 2013 Final Rule, § 65.300(e). WT/DS384/RW • WT/DS386/RW 
 
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  the origin designation."536 In other words, the amended COOL measure generally seeks to address 
the defect of Labels A-C identified by the Appellate Body by requiring explicit indication of the country(ies) of each production step. Label D re mains unchanged in this respect and therefore 
continues to allow omission of such information on specific production steps.
537 
7.230.  The Appellate Body also noted that "due to  the additional labelling flexibilities allowed for 
commingled meat, a retail label may indicate that meat is of mixed origin when in fact it is of exclusively US origin, or that it has three countries of origin when in fact it has only one or two."
538 
The amended COOL measure's removal of commin gling effectively eliminates this scenario. 
The various scenarios we reviewed in connection with detrimental impact539 illustrate that a 
product of exclusively US origin must now be labelled as such, and that consolidated labels listing three countries of origin can no longer be carried by products having "only one or two" countries of 
origin. 
7.231.  Therefore, the 2013 Final Rule generally addresses factors that led the Appellate Body to 
find that the original COOL measure's "prescribed labels do not expressly identify specific 
production steps and, in particular for Labels B and C, contain confusing or inaccurate 
information".
540 
Label accuracy under the amended COOL measure 
7.232.  The complainants submit that the amended COOL measure may still convey potentially 
misleading or inaccurate information to consumers, particularly through the flexibility for multiple countries of raising as well as through Label C rules for the country of raising.
541 
Inaccuracy due to flexibility for multiple countries of raising 
7.233.  There is labelling flexibility with respect to the situation of multiple countries of raising. 
Thus, "if animals are born 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".
542 While this was inconsequential for the labels under the original COOL measure, the 
information provided on amended point-of-production labels can now vary according to the use of this labelling flexibility. 
7.234.  One of the USDA's explanations for this flexibility is that "it is understood that an animal 
born in another country will have been raised at least a portion of its life in that other country."
543 
Indeed, this is necessarily so given that "raised" is defined by way of exclusion from the extreme starting and end points of an animal's life, that is from birth until slaughter or, in the case of 
Category C, entry into the United States for immediate slaughter. Immediately after an animal is 
born, "the period of time"
544 for raising commences and continues for the remaining lifespan. 
7.235.  The parties contest the potential accuracy  of labels under the amended COOL measure in 
view of this flexibility. By definition, the raising flexibility can only be applied to Category B 
animals. Such animals will have been raised in at least two countries, one of which will be the United States. For animals born in a foreign country, two possible production-step labelling 
scenarios are: (1) born in Country X – raised in Country X and the United States – slaughtered in 
the United States; and (2) born in Country X – raised in Country X, Country Y, and the United States – slaughtered in the United States. If an animal is born in the United States, another 
                                               
536 2013 Final Rule, p. 31367. 
537 See section 7.3.1.2 above and para. 7.279 below. 
538 Appellate Body Reports, US – COOL , para. 343. 
539 See section 7.5.4.1.2.3 above. 
540 Appellate Body Reports, US – COOL , para. 349. 
541 Canada's first written submission, para. 77 (s econd and third bullets); and second written 
submission, para. 52; Mexico's first written submission, para. 130; and second written submission, para. 58. 
542 2013 Final Rule, p. 31368. 
543 2013 Final Rule, p. 31368. 
544 2009 Final Rule, § 65.235. WT/DS384/RW • WT/DS386/RW 
 
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  possible production-step scenario in Category B is born in the United States – raised in the 
United States and Country X – slaughtered in the United States.545 
7.236.  The first scenario for foreign-born animals corresponds to Scenario B1 in Table 4 as well as 
to the separate columns of Scenario B2 in Table 5 above. The second scenario for foreign-born 
animals corresponds to separate columns of Scen arios B3a and B3b in Table 6 above. The third 
scenario for animals born and slaughtered in the United States and raised in another country will be referred to as Scenario B4. These are reproduced below in Table 13 in simplified form using 
Country X and Country Y to represent different foreign countries. Due to the multiple countries of 
raising flexibility, the labels affixed to muscle cuts  would not be required to declare the information 
in square brackets. 
TABLE 13: APPLICATION OF TH E FLEXIBILITY FOR MULTIPLE 
COUNTRIES OF RAISING TO  CATEGORY B SCENARIOS 
 Scenario B1/B2 Scenario B3 Scenario B4 
born Country X Country X United States 
raised  [Country X ] 
United States [Country X ] 
[Country Y ] 
United States United States 
Country X 
slaughtered United States United States United States 
 
 7.237.  Notably, the flexibility would not allow om ission of any of the countries of raising under 
Scenario B4. This is because the 2013 Final Rule stipulates that the flexibility to omit such 
information is not available "where by doing so the muscle cut covered commodity would be designated as having a United States country of origin".
546 Therefore, muscle cuts from such 
animals could carry the label "Born and Raised in the United States, Raised in Country X, 
Slaughtered in the United States."547 In a sense, this provision functions as a carve-out from the 
flexibility in order to prevent misleading label indications of exclusively United States origin. This is 
consistent with the definition of Category A under the COOL statute548, as well as with regulatory 
concerns of Label A accuracy leading to the adoption of the 2009 Final Rule.549 
7.238.  In any event, Scenario B4 for animals "exported twice"550 was considered by the USDA to 
be a "relatively rare situation".551 The evidence before us does not refute this assessment.552 
                                               
545 In this final scenario, the animal would arguably be  "raised" again in the United States before being 
slaughtered. 
546 2013 Final Rule, § 65.300(e). 
547 2013 Final Rule, p. 31368. Arguably, the USDA's statement that the label " could " read this way does 
not preclude that the raising in the United States could be omitted from the label. Ho wever, we do not consider 
this possibility to detract from our conclusions on Scen ario B4 that: the foreign country of raising would be 
listed on the label; the animal's birth in the United States would imply some amount of raising there as well; and Scenario B4 is not a common  occurrence in the actual North American trade of livestock. 
548 See COOL statute, § 1638a(a)(2)(A) ("A retailer … may designate the covered commodity as 
exclusively having a United States country of origin only if the covered commodity is derived from an animal 
that was exclusively born, raised, and slaughtered in the United States") (emphasis added). 
549 The Interim Final Rule (AMS) had initially allowed use of Label B for Category A muscle cuts. The 
2009 Final Rule removed this possibility due to concern that retailers and processers would predominantly resort to Label B for ease of complian ce. As explained by the USDA, "[i]t was never the intent of the Agency for 
the majority of product eligible to bear a U.S. origin declaration to bear a multiple origin designation." 2009 Final Rule, p. 2659; Panel Reports, US – COOL , paras. 7.290-7.294. 
550 United States' comments on complainants' responses to Panel question No. 8, para. 10. 
551 2013 Final Rule, p. 31368. 
552 The import and export data maintained by Cana da do not track the life histories of animals and 
therefore does not shed light on whether any animals ex ported to the United States were also born there.  
Canada's response to Panel question No. 8, para. 8. Ca nada has indicated that "it imports tens of thousands 
and sometimes hundreds of thousands of cattle annually". Canada's response to Panel question No. 5, para. 6. 
Imports of US feeder cattle into Canada may occur "w hen there is a cost of gain advantage" for Canadian 
feedlot operators. Exhibit CDA-148. See also Canada's se cond written submission, footnote 24. Canfax Canada 
 WT/DS384/RW • WT/DS386/RW 
 
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  We therefore find that the amended COOL measure would require accurate indication of the raising 
in the foreign country in such cases. At the same time, this is qualified by the remote likelihood that such a point-of-production scenario would actually occur in any significant numbers for traded livestock. 
7.239.  We turn to the accuracy of labels under Scenarios B1-B3 with similar regard for evidence 
of where such animals are actually "raised" and what must be ultimately labelled according to the terms of the amended COOL measure. 
7.240.  The complainants contend that, under the flexibility for multiple countries of raising, 
muscle cuts of meat may be labelled as coming from an animal raised in the United States even if that animal spends as little as 15 days in the United States prior to slaughter.
553 This is because 
animals imported for immediate slaughter, which are excluded from the raising flexibility, are 
subject to "consignment directly from the port of entry to a recognized slaughtering establishment 
and slaughtered within 2 week s from the date of entry ".554 The label for muscle cuts from animals 
having spent time in the United States beyond th is threshold, beginning with the "15 days" argued 
by the complainants, could in principle omit "the raising occurring in the other country (or 
countries)".555 The use of the plural "countries" in the 2013 Final Rule means that not only muscle 
cuts in Scenarios B1/B2, but also in Scenario B3, can be labelled to indicate the United States as 
the sole place of raising.556 
7.241.  The parties have submitted generally concurring evidence as to the age at which feeder  
cattle are imported into the United States557, as well as to the amount of time fed cattle typically 
spend in the United States prior to slaughter.558 For feeder cattle, Canada submits that most of its 
feeder cattle exports are between 10 to 15 months old559, and the United States reports that the 
                                                                                                                                               
explains that "if barley is cheaper in Canada compared to  the price of corn in the US, Canada has a cost of gain 
advantage that, if large enough, creates an incentives to import U.S. feeder cattle." Exhibit CDA-148. According to Canada, "[t]hese animals are then availa ble to be exported back to the United States for 
slaughter or to be processed within Canada" and "[i]t is likely that some  of the muscle cuts produced from 
these animals are subsequently exported to the United States." Canada's response to Panel question No. 5, 
para. 6 (emphasis added). Canada cites a specific example of "value added f eeder cattle … sold to feedyards in 
Quebec that finished these cattle and then shipped them  back to processors in th e U.S." See Canada's first 
written submission, footnote 223; Canada's response to Panel question No. 8, para. 9 (citing Exhibit CDA-76, 
p. 2). Mexico "does not have examples or data concerni ng livestock born and slaugh tered in the United States, 
but 'raised' in another country(ies)." Mexico's response to Panel question No. 8. Thus, we have not been given 
evidence to suggest that Scenario B4 has a high probab ility or frequency of occurre nce in US livestock trade. 
553 Canada's first written submission, para. 77 (secon d bullet); Canada's seco nd written submission, 
para. 52; Mexico's first written submission, para. 130; Mexico's second written submission, para. 58. 
554 2009 Final Rule, § 65.180 (emphasis added). 
555 2013 Final Rule, § 65.300(e). 
556 2013 Final Rule, § 65.300(e). 
557 The United States explains that it "does not im port feeder cattle from any countries other than 
Canada and Mexico." United States' response to Panel question No. 9, para. 19. Canada's and the 
United States' estimates for feeder cattle are based on data tracking the weight of animals from which average 
ages have been extrapolated. See Exhibits CDA-148 and US-50. 
558 For an explanation regarding th e differences between fed and feeder livestock, see Panel Reports, US 
– COOL , para. 7.141 (emphasis original) (footnotes omitted): 
Livestock are classified as fed or feeder  depending on whether they are ready for slaughter, 
or are still at the backgrounding or feeding op erations stage. Most of the Canadian cattle 
exported to the United States are fed cattle : these usually go through the first three stages in 
Canada and are only exported to the United States for immediate slaughter. A smaller but considerable portion of Canadian cattle are feeder cattle : these are exported to the United States 
directly after the backgrounding stage.  Conversely, Mexico generally exports feeder cattle  
immediately after the cow/calf stage to US back grounding and feeding op erations, because of a 
lack of sufficient grasslands in Mexico and the general lack of well-developed feed grains and 
cattle-feedlot sectors. As regards Canadian hog exports to the United States, these involve a larger proportion of feeder than fed hogs . 
559 Canada's response to Panel question No. 9, paras.  12-13. In particular, "[t] he majority of feeder 
exports are >700 lbs (72% of the annual total from 2009-2013), then 440-700 lbs (28% of the annual total 
from 2009-13) with less than 1% being less than 400 lbs over the last five years. The majority of Canadian feeder exports occur in the first half of the year (the 5 year average is 63%). This would indicate that most 
feeders exported to the US are calves that are backgrou nded or pre-conditioned for a period of time making 
them approximately 10-15 months ol d (based on peak calving in Canada occurring in March)." 
Exhibit CDA-148. WT/DS384/RW • WT/DS386/RW 
 
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  average age of imported feeder cattle is approximately 12 months.560 Mexico submits561, and the 
United States does not dispute562, that the average age of Mexican feeder cattle exports ranges 
from six to seven months. For fed cattle, Canada563 states that "[m]ost Canadian exports of fed 
cattle to the United States are slaughtered within 14 days of entry into the United States."564 This 
is consistent with the United States' understanding  "based on its experience in the regulation of 
U.S. slaughter facilities" "that cattle imported for immediate slaughter are almost always slaughtered the day they arrive in the United States."
565 
7.242.  We understand from the evidence before us that the slaughter age of cattle is 
approximately 22 months.566 Relative to this slaughter age, it  is clear from the evidence that 
feeder cattle exported to the United States typica lly spend a substantial part of their lifespan in 
their country of birth. The parties' evidence indi cates that on average Canadian feeder cattle spend 
between 45 and 68%, and feeder cattle from Mexico between 27 and 32%, of their raising period 
outside the United States. Yet these feeder cattle, falling in Scenarios B1 and B2 above, will be processed into muscle cuts that are eligible to be labelled "Born in Canada/Mexico, Raised and 
Slaughtered in the United States". Thus, feeder ca ttle imported into the United States may spend 
68% of their lifespan outside the United States
567; yet, the resulting meat products could be 
labelled to indicate that the originating animals were raised only in the United States. 
7.243.  Under these circumstances, we are not persuaded by the United States' contention that 
such a label can be regarded as " entirely  accurate"568, particularly given the definition of "raised" 
according to the amended COOL measure. The ration ale for permitting flexibility to designate the 
United States as the sole place of raising wa s that it would "reduce the number of required 
characters on the label".569 This was considered justifiable based on the correct presumption that 
raising must naturally occur at least in part in th e country of birth. This flexibility, however, takes 
no account of the substantial amount of time that traded livestock typically spend outside the 
United States. 
7.244.  Turning to the design of the amended C OOL measure, as explained above, the amended 
COOL measure would similarly afford this flexibility 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. Nevertheless, 
it does not appear that this occurs in practice. The parties' data indicate that Category B exports to the United States tend to be nearer to the midpoi nt of an average animal's lifespan, and livestock 
within Category C are usually slaughtered well within the 14 day window mentioned above. 
These averages suggest that in its application , the amended COOL measure permits labels 
indicating "raised in the United States" al one for livestock that commonly spend between 
approximately one third and one half of their lives elsewhere. 
                                               
560 United States' response to Pa nel question No. 9, para. 21. 
561 Mexico's response to Panel question No.9, para. 7;  United States' response to Panel question No.9, 
para. 21; United States' comments  on complainants' responses to Panel question No. 9, para. 14. 
562 United States' comments on complainants' responses to Panel question No. 9, para. 14. 
563 Mexico explains that its "industry focuses on the ex port of feeder cattle and not fed cattle." Mexico's 
response to Panel question No. 10. 
564 Canada's response to Panel question No. 10, para. 15. 
565 United States' response to Pane l question No. 10, para. 22. In th is connection, we note Canada's 
contention that the decision of some US packers to  no longer accept Category C animals has led some 
exporters to send animals that would normally be sent  directly to slaughter for short term feeding in the 
United States so as to qualify for Category B. Ca nada's response to Panel question No. 10, para. 16; 
Exhibits CDA-70, CDA-150 (BCI), CDA-151 (BCI). 
566 See Canada's response to Panel question No. 9, para. 13 and Exhibit CDA-75; United States' 
response to Panel question No. 9, para. 21 (estimat ing average slaughter age of between 18 and 22 months 
based on average slaughter weight of 544 kg) and Exhibit US-50. 
567 Imported feeder cattle may spend an even greate r amount of time outside the United States, as 
evidenced by indications from industry participants that animals are bein g sent for short term feeding – e.g. for 
a period of 55 days before slaughter – in the United States. See Cana da's response to Panel question No. 10, 
para. 16; Exhibits CDA-70, CDA-150 (BCI), CDA-151 (BCI). 
568 United States' comments on complainants' responses to Panel question No. 9, para. 16 
(emphasis added). 
569 2013 Final Rule, p. 31368. WT/DS384/RW • WT/DS386/RW 
 
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  Label C rules for the co untry(ies) of raising570 
7.245.  Another contended aspect of label accuracy relates to whether, under the amended COOL 
measure, Label C requires that only the country of immediate export be indicated as the country of raising. 
7.246.  The 2013 Final Rule addresses Labels B and C under the same provision, which requires for 
animals "born and/or raised in Country X and/or (as applicable) Country Y, and slaughtered in the 
United States, [that] the resulting muscle cut covered commodities shall be labelled to specifically 
identify the production steps occurring in each country".
571 This is cited by the United States in 
conjunction with the broad definition of "raised"  under the amended COOL measure as evidence of 
the "permissive nature of the measure".572 The United States thus contends that Label C would 
permit indicating multiple countries of raising for Category C if this situation were to occur.573 
7.247.  Canada considers that the amended COOL  measure requires designation only of the 
country of export as the country of raising. Canada  cites the focus of the provision on animals that 
"undergo raising both outside and inside of the United States before slaughter in the 
United States", and that the USDA's specific guidance for Label C states: 
[T]he origin information for muscle cut covered commodities derived from animals 
imported for immediate slaughter as defined in § 65.180 is required to include 
information as to the location of the three production steps. However, the country of 
raising for animals imported for immediate slaughter as defined in § 65.180 shall be designated as the country from which they were imported (e.g., "Born and Raised in Country X, Slaughtered in the United States").
574 
7.248.  As to indication on Label C of additional countries of raising other than the export country, 
we note that the COOL statute provides that a "retailer of a covered commodity … derived from an animal that is imported into the United States for immediate slaughter shall designate the origin of 
such covered commodity as (i) the country from which the animal was imported ; and (ii) the 
United States".
575 
7.249.  Taken together, the text of the relevant provisions of the amended COOL measure, 
combined with the USDA's guidance, are open to the competing interpretations put forward by the 
parties. We examine label accuracy under both interpretations of the requirements for Label C under the amended COOL measure. 
7.250.  Table 14 below reproduces in simplified form various point-of-production labelling 
combinations in Category C from scenarios outl ined above, using Country X and Country Y to 
represent different foreign countries. As in Table 13, the labels affixed to muscle cuts would not need to declare the information in square brackets. 
                                               
570 See paras. 7.103-7.110 above. 
571 2013 Final Rule, § 65.300(e). By comparison, the 2009 Final Rule contains separate provisions for 
Labels B and C. See 2009 Final Rule, § 65.300(e)(1) and (3). 
572 United States' response to Pa nel question No. 6, para. 12. 
573 See United States' response to Panel question No. 6. 
574 Canada's response to Panel question No. 6, para. 5 (citing 2013 Final Rule, pp. 31368-31369). 
Mexico also draws attention to the separate and except ional treatment of Label C in section 65.300(e) of the 
2013 Final Rule. Mexico's first written submission, para. 130. 
575 COOL statute, § 1638a(a)(2)(C) (emphasis added). WT/DS384/RW • WT/DS386/RW 
 
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  TABLE 14: COUNTRY OF RAISIN G FOR CATEGORY C SCENARIOS 
 Scenario C1/C2 Scenario C3/C6576 Scenario C4/C5 
 If raising is country of export only: 
born Country X Country X Country X 
raised  Country X Country Y Country X 
slaughtered United States United States United States 
 If additional countries of raising may be shown:  
born 
same as above Country X Country X 
raised  [Country X and ] Country Y [Country Y and ] Country X 
slaughtered United States United States 
 
 
7.251.  Even if the amended COOL measure is understood to allow indication of multiple countries of raising, as asserted by the United States, it remains uncontested that this would not be 
mandatory.
577 It would be an accurate reflection of an animal's raising to list the additional country 
in any of Scenarios C3-C6; conversely, this accuracy would be diminished by omitting the raising that occurred outside of the country of export. In Scenario C3/C6, the omission of the raising in 
Country X may have less implications for informational accuracy if, as suggested by the USDA, one 
may infer that some amount of raising will natu rally occur in Country X as the place of birth. 
7.252.   However, the particular Scenario C4/C 5 could not similarly support such an inference 
because the countries of birth and export to the United States would be the same. As shown in 
Table 14 above, the omitted country of raising would not be mentioned at all on the label. 
Thus, the omission of raising in Country Y for Scenario C4/C5 would result in inaccurate information about the animal's raising, as it would indicate raising as having occurred in only one 
country. In any event, we observe that all of the situations in Scenarios C3-C6, including Scenario 
C4/C5, appear to be unlikely in the United States' actual trade of livestock.
578 
7.253.  If the amended COOL measure requires designating exclusively  the country of export as 
the place of raising, as contended by Canada, the ev idence before us indicates that this is in fact 
compatible with the most common situation for traded Category C animals. This is represented by Scenario C1/C2 where an animal is born and raised in the same country before import into the United States for immediate slaughter.
579 In that scenario, the label reading "Born and Raised in 
Country X, Slaughtered in the United States"580 would be generally accurate for the animals 
actually traded between the complainants and the United States. However, this is not the case for any of Scenarios C3-C6, which would lead to label inaccuracy as described above. Specifically, the 
label for Scenario C3/C6 would omit raising in Country X but would still indicate that the animal 
was born in that country. The label for Scenario C4/C5 would be required to omit the other country of raising (Country Y) altogether. 
7.254.  In sum, the design of Label C rules under the amended COOL measure may allow – and 
possibly require – omission of actual countries of raising, resulting in label inaccuracy as to an animal's place of raising. In its actual application to traded livestock, however, Label C does not appear likely to convey misleading informatio n about the country where animals imported for 
                                               
576 As pointed out by the United States, this could also  become relevant "for the other highly improbable 
scenario where an animal [is] born in the United States, exported to Canada, and then re-exported 
United States as a C animal." United States' response to Panel question No. 6, para. 14. 
577 See Canada's comments on the United States' response to Panel question No. 6, para. 7; 
United States' response to Pa nel question No. 6, para. 12. 
578 See para. 7.241 above. 
579 Neither Canada nor Mexico submit evidence of livestock "imported for immediate slaughter" that 
were raised in more than one countr y (i.e. in any country other than thei r place of birth). See Canada's and 
Mexico's response to Panel question No. 7; and United States' comments on the complainants' responses to Panel question No. 7. 
580 2013 Final Rule, § 65.300(e) and pp. 31368-31369. WT/DS384/RW • WT/DS386/RW 
 
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  immediate slaughter are raised, given that these appear to be most commonly born and raised in 
the country of export. 
Appearance and placement of labels 
7.255.  Mexico takes issue with what it considers to be obscure abbreviations and lack of 
specificity as to label placement.581 According to Mexico, consumers have limited knowledge or 
understanding of the COOL labels.582 Mexico argues that in many cases the information is "hidden 
or otherwise obscured".583 In particular, Mexico questions whether consumers understand the 
meaning of an abbreviated label that says "brn in Mexico, rsd and slghtrd in US"584, or the use of 
the word "harvested" on the labels instead of "slaughtered".585 Mexico adds that COOL information 
is normally printed in very small typeface on labels, and often is on the rear of the packaging.586 
Mexico, therefore, questions whether co nsumers even see the COOL information.587 
7.256.  The amended COOL measure provides for considerable discretion as to how retailers 
convey country of origin information to consumers. The use of labels and stickers588 is subject to 
the USDA's directive that "the information can be clearly understood by consumers".589 At the 
same time, retail packaging submitted by the pa rties and the above examples referenced by 
Mexico reflect the potentially wide discretion afforded by the amended COOL measure.590 Some of 
these examples show that, despite the retention and transmission of origin information on birth, 
raising, and slaughter, the final origin declaration can be written or placed in ways that are not 
equally understandable. Ultimately, we are not in a position to determine whether consumers would clearly understand the labels in each of the examples provided. In light of the limited 
available evidence of labels under the amended COOL measure, we cannot draw conclusions on 
the impact of this labelling discretion on label accuracy.
591 
Relative shares of the different origin  categories and exemptions under the 
amended COOL measure 
7.257.  In terms of the incremental improvement in the information conveyed to consumers under 
the amended COOL measure, the relative proportion s of meat products falling into Categories A-E 
and exempted from coverage are also relevant. 
7.258.  Data provided by the parties indicate that, of total (muscle cut and ground) beef 
consumption in the United States, between 33. 3% and 42.3% is subject to the labelling 
requirements of the amended COOL measure. Of total US beef consumption, between 16.3% and 
24.5% are muscle cuts carrying Labels A-D, an d between 16.6% and 17.8% are ground meat 
                                               
581 Mexico's first written submission, paras. 129-130, and Mexico's second written submission, 
paras. 54-57. See also United States' second written submission, paras. 41-43 (discussing intelligibility of 
labels). 
582 Mexico's second written submission, para. 98. 
583 Mexico's second written submission, para. 98. 
584 Mexico's first written submission, para. 169. 
585 Mexico's second written submission, para. 98. 
586 Mexico's first written submission, para. 169. 
587 Mexico's first written submission, para. 169. 
588 See section 7.3.1.3 above regarding the perm itted use of signs or  placards as well. 
589 2013 Final Rule, p. 31369. 
590 See Exhibits MEX-15, MEX-48, MEX-49, MEX-50, MEX-51, MEX-52, and US-28. 
591 In this connection, the Panel notes that Mexico submits labels on muscle cuts from US-slaughtered 
cattle that do not show origin information according to  point-of-production even after the expiration of the 
2013 Final Rule's six-month adjustment period in November 2013. See Exhibits MEX-48, MEX-49, MEX-57, MEX-58 and MEX-59. This evidence of specific labels do es not address the prevalence of non-compliance with 
regard to muscle cuts of beef. Accordingly, the Pane l cannot draw conclusions on the precise impact of 
eventual non-compliance with the 2013 Final Rule on label accuracy. WT/DS384/RW • WT/DS386/RW 
 
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  carrying Label E.592 The remaining share of beef products – between 57.7% and 66.7% – falls into 
one of the three exemptions and does not get labelled.593 
7.259.  The parties do not provide data on the sh ares of the three point-of-production labels for 
Categories A-C of the amended COOL measure. Referring to the USDA's mandatory COOL retail 
record reviews conducted in 2012, the United States argues that Categories A, B, and C muscle 
cuts constituted approximately 99.7% of COOL labell ed muscle cuts sold in the United States, with 
Labels B and C accounting for 20% of meat being labelled.594 The United States adds that 
imported Canadian beef muscle cuts would consti tute approximately only 0.1% of COOL-labelled 
muscle cuts sold at retail (given that Category D meat from all sources constitutes only 0.3% of COOL labelled beef muscle cuts).
595 
7.260.  Beyond numeric shares, all parties agree that in relative terms most beef will continue to 
be marketed with Label A.596 In particular, Canada and Mexico project that Label A will even 
increase its market share, while the United States argues that the market shares of labels will not 
change under the amended COOL measure.597 The divergence of views appears with respect to the 
future evolution of the distribution of labels with in the US market. Canada is of the view that the 
increased segregation requirements will create  incentives for producers to choose between 
different categories of animal, altering the distribu tion of the various labels within the US market 
and potentially reducing the use of Label C.598 
7.261.  With regard to pork products, Canada and the United States disagree on the extent of the 
coverage and exemptions from the amended COOL measure.599 Both Canada and the 
United States agree, however, that there is virt ually no ground pork meat subject to the amended 
                                               
592 See parties' responses to Panel question A. In addition, Mexico identifies alternative sources 
suggesting the proportion of beef covered by the amended COOL measure to be 25%, 30%, 33%, and 35%. 
See Mexico's response to Panel question A, paras. 178-192. 
593 More specifically, the parties estimate that between  34% and 51% of consumed beef is sold in a food 
service establishment; between 12% and 13.7% is sold by entities not meetin g the definition of "retailer"; and 
between 3.7% and 10% is an ingred ient in a processed food item. 
594 United States' first written submission, para. 31, footnote 63, and second written submission, 
para. 47; Exhibits US-3 and US-27. 
595 United States' second written submission, para . 58; footnote 98. Moreover, the United States 
submits that imports of beef muscle cu ts have declined over time as overall consumption of beef has declined, 
and there is no reason to believe that Label D meat is being sold at higher percentages in 2013 than it has in any previous year. United States' second wri tten submission, footnote 91; Exhibit US-33. 
596 See parties' responses to Panel question A(v). See also Canada's first written submission, para. 76; 
United States' first writte n submission, paras. 70-73. 
597 Before the original panel, the United States submitted that "appr oximately 71 percent of the beef 
sold at the retail level is being labeled as Category A", and "70 percent of the pork sold at the retail level is 
being labeled as Category A". Canada and Mexico contested these figures and submitted that the proportion of 
meat carrying Label A was closer to 90%. See Panel Reports, US – COOL , paras. 7.369-7.370. Further, Canada 
argued before the original panel that data collected during the first quarter of 2010 showed that the different labelling categories for muscle cuts of beef were supplied in major superm arkets as follows: Label A 78.6%; 
Labels A and B 6.3%; Label B 14.2%; and Labels B and C 0.9%. According to the Unit ed States, as of July 
2009 the different origin declarations for muscle cuts of beef were used in the following percentages: US 71%; US, Canada 5%; US, Mexico 0.5%; Canada, US 0.5%; US, Canada, Mexico 22%; and foreign (category D) 0.3%. See Panel Reports, US – COOL , footnote 941. 
598 Canada's response to Panel question A, para. 214 (referring to Exhibit CDA-70). See also para. 7.241 
above; Mexico's response to Panel question A, para . 208; United States' response to Panel question A, 
para. 199. 
599 See Canada's and United States' response to Panel question A. The di fferences stem from the 
assumptions regarding the share of US pork consumption sold in retailers (35.9% for Canada and 62.2 % for 
the United States) and in food service establishments (64.1 % for Canada and 37.8 % for the United States). 
The differences in terms of shares are also the result of different assumptions regarding the share of processed 
food (21.31 % for Canada and 66.25 % for the United States) sold at reta ilers and food service establishments. 
The main source of difference in the share of US po rk consumption sold in retailers and food service 
establishments stems from the inconsistency of units of measure between carcass weight  and boneless retail 
weight  made by Canada (as pointed out by the United States). Once the consistency of units of measure is 
addressed by expressing pork from food service establishments in boneless retail weight  using the USDA 
conversion factors for converting pork  carcass weight to retail weight ( 78%) and for converting pork carcass 
weight to boneless weight (72.9%), and keeping the calculation structure sugges ted by Canada unchanged, 
the differences in the amounts of the various shares submitte d by both parties decrease. WT/DS384/RW • WT/DS386/RW 
 
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  COOL measure. Consequently, virtually all labell ed pork products subject to the amended COOL 
measure would be muscle cuts of pork falling within Categories A-D. 
7.262.  Based on harmonized figures submitted by the parties,600 of total US pork consumption, 
between 15.9% and 16.5% comprises pork muscle cuts  that are subject to labelling requirements 
under the amended COOL measure. Conversely, be tween 83.5% and 84.1% of pork products are 
exempted from labelling requirements.601 
7.263.  As with beef products, Canada and the United States do not provide figures on the shares 
of the point-of-production labels applied to muscle cuts of pork under the amended COOL 
measure. At the same time, Canada and the United States agree that the majority of pork will be 
marketed with Label A.602 
7.5.4.2.4.4  Overall assessment of whethe r the amended COOL measure's detrimental 
impact stems exclusively from legi timate regulatory distinctions 
7.264.  The Appellate found for the original COOL measure that: 
the informational requirements imposed on upstream producers … are 
disproportionate as compared to the level of information communicated to consumers 
through the mandatory retail labels.  That is, a large amount of information is tracked 
and transmitted by upstream producers fo r purposes of providing consumers with 
information on origin, but only a small amount of this information is actually 
communicated to consumers in an understandable manner, if it is communicated at all. Yet, nothing in the [original panel's] findings or on the [original panel] record explains or supplies a rational basis for this disconnect. Therefore, we consider the 
manner in which the COOL measure seeks to provide information to consumers on 
origin, through the regulatory distinctions described above, to be arbitrary, and the disproportionate burden imposed on upstream producers and processors to be 
unjustifiable.
603 
7.265.  We identified three key determinants in the Appellate Body's reasoning for the 
informational "disconnect" of the original COOL measure: 
a. informational requirements imposed on upstream producers; 
b. the nature and accuracy of the information conveyed on labels; and 
c. the proportion of the information that is exempted from being communicated to 
consumers. 
7.266.  Based on our foregoing analysis, we conclude that the amended COOL measure affects the 
first two of these aspects, while leaving the thir d one effectively the same as under the original 
COOL measure. Specifically, although the amended COOL measure increases the information 
communicated to consumers through mandatory retail labels, it necessarily increases the 
associated upstream informational (recordkeeping) re quirements in order to do so. In addition, the 
amended COOL measure maintains the same proportion of information that is not communicated 
at all to consumers due to the exemptions from coverage. 
7.267.  Notwithstanding the parties' disagreement as  to the actual proportions of labels used, the 
amended COOL measure directly responds to certain deficiencies of original Labels A-C by requiring point-of-production information. Moreov er, the removal of commingling assures greater 
                                               
600 See parties' responses to Panel question A. 
601 More specifically, the parties estimate that between  12.8% and 35.6% of consumed pork is sold in a 
food service establishment; between 5.1% and 15.7% is sold by entities not meeting the definition of "retailer"; and between 33.2% and 66.2% is an ingredient in a processed food item. 
602 Panel Reports, US – COOL , paras. 7.369, 7.370, and footnote 941. See also Canada's first written 
submission, para. 76. 
603 Appellate Body Reports, US – COOL , para. 347. WT/DS384/RW • WT/DS386/RW 
 
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  accuracy of labelling for multiple-origin muscle cuts, as well as for those Category A muscle cuts to 
which a commingled label would have been affixed under the previous rules.604 
7.268.  The greatest incremental improvemen t in origin information achieved by the 
2013 Final Rule is for Labels B and C, which were effectively indistinguishable under the original 
COOL measure.605 The possibility for overlap between Labels B and C is generally foreclosed under 
the amended COOL measure, given the typical indi cation on Label B of the United States as a 
country of raising.606 Label C could bear a similar indication of US raising only hypothetically in the 
case of an animal born in the United States, raised abroad, and imported back into the 
United States for immediate slaughter. This appears to be uncommon in practice and, in any event, depends on how Label C requirements are interpreted.
607 
7.269.  At the same time, the revised labels introduce the potential for informational inaccuracy in 
respect of where animals are "raised". While "birth" and "slaughter" are relatively straightforward 
and temporally discrete, the definition of "raised" as the entire intervening period between them is 
potentially problematic in the context of certain requirements of the amended COOL labels. 
In particular, 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 spend a substantial portion of their lives either in Canada or Mexico. This is of primary importance to our assessment 
as it represents potential inaccuracy in light of the average age of cattle traded between the 
complainants and the United States, explained abov e. Apart from this, the design of the amended 
COOL measure permits an even greater amount of raising in Canada or Mexico to be omitted from the label, including in the most extreme case for an animal spending as little as 15 days in the 
United States before slaughter. Although Label C appears to accurately reflect the place of raising 
of Category C fed cattle in practice, certain ambiguities in the design of its labelling rules may also create the potential for inaccuracy due to the possible omission of countries of raising.
608 
7.270.  The United States submits that Labels A-C provide the same level of accurate and 
meaningful origin information for the vast majority of labelled muscle cuts609 and that 
"the amended COOL measure has increased the level of information to consumers while not 
increasing the recordkeeping and verifica tion requirements for U.S. industry."610 We have not been 
persuaded by this contention in light of the potential inaccuracies on Labels B and C with respect to the country of raising, which do not similarly arise for Label A. 
7.271.  Moreover, as we have explained, according to its design, operation, and application, the 
amended COOL measure necessarily imposes increased recordkeeping burdens in order to secure 
information of requisite verifiability on origin. We recall in this connection the Appellate Body's consideration, based on findings of the original panel, of "the recordkeeping and verification 
requirements … to be the source of the incentive for US producers to process exclusively domestic 
livestock".
611 Thus, the amended COOL measure's resp onsiveness to DSB recommendations and 
rulings must be assessed with regard for the new informational shortcomings on Labels B and C, 
as well as the aggravated source of detrimental impact due to increased recordkeeping. 
7.272.  Although the amended COOL measure has an  impact on two elements of the informational 
"disconnect", it fails to address in any way "the fact that the [original] COOL measure exempt[ed] 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'."
612 We have no evidence before us that calls 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 
                                               
604 As stated in paras. 7.121-7.126 above that actual extent of commingling is not known. 
605 As stated by the original panel, Labels B and C could "overlap and practice … [and thus] look the 
same, provided that the countries involved in the production of the Label B and C muscle cuts in question are the same." Panel
 Reports, US – COOL , para. 7.288. 
606 See Table 13 above. 
607 Further, in that hypothetical case there woul d be no requirement to list the raising in the 
United States, but merely a possibility of doing so. See para. 7.251 above. 
608 See paras. 7.245-7.254 above. 
609 See United States' second written submission, paras. 29-40. 
610 United States' second written submission, para. 51. 
611 Appellate Body Reports, US – COOL , para. 342. 
612 Appellate Body Reports, US – COOL , para. 344. See section 7.3.2.2 above. WT/DS384/RW • WT/DS386/RW 
 
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  production chain"613. Thus, due to the increased recordk eeping 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 … ev en though 'a considerable proportion'
614 of the beef and 
pork derived from that livestock will ultimate ly be exempt from the COOL requirements and 
therefore carry no COOL label at all."615 
7.273.  The United States defends these continued exemptions on the basis that they do not cause 
detrimental impact and are themselves even -handed in their design and application.616 As we have 
explained, however, the exemptions are relevant as an integral part of "the overall architecture" of 
the amended COOL measure in the assessment of regulatory distinctions drawn in service of the measure's objective. It is therefore "of central importance to our overall analysis under 
Article 2.1"
617 that 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 detrimentally impact competitive 
opportunities for foreign livestock. 
7.274.  The United States also discusses how "such exemptions are often included as part of the 
mandatory country of origin labelling requirements imposed by Members"618 and that "they are 
important mechanisms that policy makers use to control costs of measures in pursuit of legitimate 
government objectives".619 The United States cites the size of its market (including the number of 
restaurants that would be impacted by removal of the exemption) and associated burdens to explain the rationale for its exemptions.
620 
7.275.  The original panel acknowledged that "it is not atypical for any kind of regulation to have 
exceptions in terms of the products and entities that are subject to it. Some of such exceptions 
might be justifiable for practical reasons and simply facilitate the implementation of the measure 
at issue without necessarily involving protectionist intent."621 Further, the Appellate Body has 
stated 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 
overtly or covertly discriminate against imports."
622 Although the Appellate Body has thus 
recognized that cost considerations are not per se  prohibited, it did not accept them as 
supervening justification for discriminatory measures. 
7.276.  In light of the Appellate Body's approa ch, we do 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. 
7.277.  In line with the Appellate Body's guidance , we consider the exemptions from the amended 
COOL measure's coverage as evidence that th e recordkeeping burden giving rise to the 
detrimental impact "cannot be explained by th e need to convey to consumers information 
regarding the countries where livestock were born, raised, and slaughtered".623 
7.278.  We turn now to other factors that may pertain to the amended COOL measure's "design, 
architecture, revealing structure, operation, and ap plication" in the context of Article 2.1 of the 
TBT Agreement. We look in particular to the sign ificance of such aspects for whether the measure 
                                               
613 Appellate Body Reports, US – COOL , para. 344 (citing Panel Reports, US – COOL , para. 417). 
614 (footnote original) Panel Reports, US – COOL , para.7.417. 
615 Appellate Body Reports, US – COOL , para. 344 (emphasis original). 
616 See United States' second written submission, paras. 60-67. 
617 Appellate Body Reports, US – COOL , para. 348. 
618 United States' first written submission, para. 89. Th e United States relies on certain findings of the 
Panel that exceptions of this nature "might be justifiable for practical reasons and simply facilitate the implementation of the measure at issue without necessarily involving protectionist intent". Panel Reports, US – 
COOL , para. 7.684. 
619 United States' first written submission, para. 91 (citing Panel Reports, para. 7.711). See also 
United States' second written submission, para. 67. 
620 United States' first written submission, para. 91. 
621 Panel Reports, US – COOL , para. 7.684. 
622 Appellate Body Report, US – Clove Cigarettes , footnote 431. 
623 Appellate Body Reports, US – COOL , para. 349. WT/DS384/RW • WT/DS386/RW 
 
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  "is designed or applied in a manner that constitutes a means of arbitrary or unjustifiable 
discrimination".624 
7.279.  As noted, although the complainants do not challenge Label D as such625, they contend 
that it weighs against the "even-handedness" of  the amended COOL measure. In the original 
dispute, the Appellate Body noted that Label D w ill not convey information on the place of an 
animal's birth or raising.626 This aspect has not been modified under the amended COOL 
measure.627 The complainants claim there is potential to mislead consumers given that birth or 
raising in other countries may be omitted from the label.628 As the United States points out, 
however, the complainants have not provided evidence of Category D animals that were not born and raised in the country in which they were slaughtered.
629 In other words, there is nothing 
before us to suggest that muscle cuts with Label D stating "Product of Country X" will not be from 
animals that are entirely a product of that country. Thus, although the omission of production 
steps would result in provision of less detailed information, this does not seem apt to mislead consumers of Category D muscle cuts in the same fashion as would omission of countries on 
Labels B and C. Combined with 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, we are not convinced that Label D rules of substantial transfor mation are compelling evidence of arbitrary or 
unjustifiable discrimination. 
7.280.  With respect to Label E for ground meat products, we recall that the complainants had not 
demonstrated detrimental impact caused by the ground meat rules in the original dispute.
630 
The complainants refer to the large percentage of meat under the amended COOL measure that 
would carry Label E, which omits point-of-production labelling and contains "significant flexibility" 
as to which countries may be listed.631 However, the original panel's findings on the ground meat 
labelling rules were not appealed, nor reviewed in the Appellate Body's Article 2.1 analysis in the 
original dispute. Further, it is not clear that the treatment of ground meat is sufficiently connected 
to the relevant regulatory distinctions to justify incorporation into our broad632 assessment of the 
amended COOL measure's design and operation. As explained by the USDA, the production of 
ground meat entails the processing of "trimmings" of diverse origin that are ground into a final 
product633, and the ground meat labelling rules were adapted to the purchasing, inventory, and 
production practices of US beef grinders.634 The complainants do not refute the different forms of 
processing undergone by muscle cuts and ground meat, nor do they submit arguments in this 
compliance dispute as to the upstream burdens relating to ground meat. Given the findings in the 
original dispute and the complainants' arguments and claims in this compliance dispute, we do not consider Label E to evidence the amended COOL measure's violation of Article 2.1.
635 
7.281.  Finally, although the complainants seek to  use the trace-back prohibition as evidence of 
arbitrariness636, the complainants do not provide specific arguments or evidence in this context as 
to the nature of the prohibited trace-back measure.  Instead, the relevance of this argument to the 
                                               
624 Appellate Body Reports, US – COOL , para. 271. 
625 See para. 7.129 above. 
626 Appellate Body Reports, US – COOL , para. 343. 
627 See para. 7.19 above. 
628 See Canada's second written submission, para . 37, and second writte n submission, para. 39; 
Mexico's first written submission, para. 130. 
629 Canada's and Mexico's responses to Panel question No. 5; and United States' comments on 
complainants' responses to Panel question No. 5. See also United States' second written submission, para. 56 and response to Panel question No. 3.  In response to the Panel's questions, Canada discusses US exports to 
Canada of calves intended for veal production, but does not provide concrete evidence that muscle cuts of such 
veal are actually exported to the United States as Category D meat. 
630 See para. 7.206 above. 
631 See Panel Reports, US – COOL , para. 7.435. See also Canada's first written submission, paras. 70 
and 81, and second written submission, paras. 40-42; Me xico's first written submission, para. 137, and second 
written submission, para. 65. 
632 See Appellate Body Reports, US – COOL , para. 346. 
633 See 2009 Final Rule, p. 2671. See also United States' response to Panel question No. 11. 
634 See 2009 Final Rule, p. 2671. See also United States' response to Panel question No. 11. 
635 See Appellate Body Reports, US – COOL , para. 271 (referring to whether "the detrimental impact will 
reflect discrimination prohibited under Article 2.1"). 
636 See Canada's second written submission, para . 45; and Mexico's second written submission, 
paras. 71-72. WT/DS384/RW • WT/DS386/RW 
 
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  Article 2.1 analysis appears to be limited to whether the trace-back prohibition necessitates the 
same (or similar) audit and verification system of the amended COOL measure and its related detrimental impacts. Inasmuch as this argument reverts focus to the claimed deficiencies of the 
amended COOL measure's labelling rules, we consider that this is already addressed in the 
foregoing analysis. 
7.282.  In the original dispute, the Appellate Body  found that "the manner in which the [original] 
COOL measure seeks to provide information to consumers on origin, through the regulatory 
distinctions described above, to be arbitrary,  and the disproportionate burden imposed on 
upstream producers and processors to be unjustifiable."
637 We consider that this finding is also 
relevant for the amended COOL measure, which en tails an increased recordkeeping burden and a 
potential for label inaccuracy, and continues to exempt a large proportion of muscle cuts. 
7.283.  We therefore find that, under the particul ar circumstances of this case, the detrimental 
impact caused by the amended COOL measure does not stem exclusively from legitimate 
regulatory distinctions. 
7.5.4.3  Conclusion on less favourable treatment638 
7.284.  We have found that the amended COOL measure has increased the original COOL 
measure's detrimental impact on the competitive opportunities of imported livestock, and that this 
impact does not stem exclusively from legitimate regulatory distinctions. We therefore find that 
the amended COOL measure accords less favourable treatment to imported livestock than to like products of US origin. 
7.5.5  Conclusion on Article 2.1 of the TBT Agreement 
7.285.  Having determined that the amended COOL measure is a technical regulation that accords 
less favourable treatment to imported livestock vis-à-vis  like domestic products, we find that the 
amended COOL measure violates Article 2.1 of th e TBT Agreement in respect of muscle cuts from 
US-slaughtered livestock (Categories A-C). 
7.6  Article 2.2 of the TBT Agreement 7.6.1  Legal test 
7.6.1.1  Main factors 
7.286.  Article 2.2 of the TBT Agreement provides: 
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 regulation s 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 pr actices; 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 technolo gy or intended end-uses of products. 
7.287.  As regards the legal test under the first two sentences of Article 2.2, the Appellate Body 
stated that "an assessment of whether a technical regulation is 'more trade-restrictive than 
                                               
637 Appellate Body Reports, US – COOL , para. 347. 
638 These conclusions apply to the amended CO OL measure in regard to muscle cuts from 
US-slaughtered livestock (Categories A-C). As explained ab ove, the complainants do not bring claims either in 
regard to muscle cuts from foreign- slaughtered animals (Cat egory D) or the ground meat aspect of the 
amended COOL measure (Category E). See sections 7. 1 and 7.4 above. See also Canada's and Mexico's 
responses to Panel question No. 47. WT/DS384/RW • WT/DS386/RW 
 
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  necessary' within the meaning of Article 2.2 of the TBT Agreement involves an evaluation of a 
number of factors."639 In particular: 
[a] panel should begin by considering factors that include: (i) the degree of 
contribution made by the measure to the legitimate objective at issue; (ii) the 
trade-restrictiveness of the measure; and (iii)  the nature of the risks at issue and the 
gravity of consequences that would arise from non-fulfilment of the objective(s) pursued by the Member through the measure.
640 
7.288.  The parties agree on the relevance of these three factors.641 Additionally, according to 
Mexico, they constitute the first step under a "two-step" Article 2.2 analysis.642 Mexico submits 
that, in addition to the above three factors, this first step also encompasses "the 'relative importance' of the interests or values furthered by the Amended COOL Measure".
643 For Mexico, 
this additional factor should be the starting po int of the necessity test under Article 2.2 of the 
TBT Agreement.644 
7.289.  According to the Appellate Body, in addition  to the above three factors, "in most cases" an 
Article 2.2 analysis needs to also entail a comparison of the challenged measure with possible 
alternatives: 
In most cases, a comparison of the challenged measure and possible alternative 
measures should be undertaken. In particular, it may be relevant for the purpose of 
this comparison 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.
645 
7.290.  Mexico argues that such a comparison with alternative measures is only the second step of 
the Article 2.2 analysis; it is necessary only if the review of the amended COOL measure under the 
first step would not lead to a finding of inconsistency.646 
7.291.  In light of the above, we first address whether the legal test under Article 2.2 of the 
TBT Agreement entails the two-step approach advanced by Mexico. We then turn to Mexico's 
suggestion that the relative importance of the in terests or values furthered by the challenged 
measure constitutes an additional factor under the Article 2.2 test. 
7.6.1.2  Whether Article 2.2 entails the two-step approach advanced by Mexico 
7.292.  Mexico relies upon647 the Appellate Body's summary of the Article 2.2 legal test: 
[A]n assessment of whether a technical regulation is "more trade-restrictive than 
necessary" within the meaning of Article 2.2 of the TBT Agreement involves an 
evaluation of a number of factors. A panel should begin by considering factors that 
include: (i) the degree of contribution made by the measure to the legitimate 
objective at issue; (ii) the trade-restrictiveness of the measure; and (iii) the nature of 
                                               
639 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (footnote omitted). 
640 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (footnote omitted). 
641 Canada's first written submission, para. 101; Mexico's first written submission, para. 151; and 
United States' first writte n submission, Section C. 
642 Mexico's first written submission, para. 153. 
643 Mexico argues that "[u]nder the first step of the necessity test, th e following factors are relevant to 
the weighing and balancing analysis in respect of the Amended COOL Measure: (i) th e "relative importance" of 
the interests or values furthered by the Amended COOL Measure; (ii) the degree of contribution made by the 
Amended COOL Measure to the legitimate objective at issue; (iii) the trade-restrictiveness of the Amended COOL Measure; and (iv) the nature of the risks at issue and the gravity of consequences that would arise from non-fulfilment of the objective(s) pursued by the Unit ed States through the Amended COOL Measure." Mexico's 
first written submission, para. 164. 
644 Mexico's first written submission, para. 156. 
645 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (footnote omitted). 
646 Mexico's first written submission, paras. 177-178. Canada does not specific ally argue this point. 
647 Mexico's first written submission, para. 151. WT/DS384/RW • WT/DS386/RW 
 
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  the risks at issue and the gravity of conseque nces that would arise from non-fulfilment 
of the objective(s) pursued by the Member through the measure. In most cases, a comparison of the challenged measure and possible alternative measures should be 
undertaken. In particular, it may be relevant for the purpose of this comparison to 
consider whether the proposed alternative is less trade restrictive, whether it would 
make an equivalent contribution to the releva nt legitimate objective, taking account of 
the risks non-fulfilment would create, and whether it is reasonably available.
648 
7.293.  According to Mexico, this approach dictates a "two-step necessity test".649 The first step is 
a "relational analysis"650 involving a "weighing and balancing" of the factors listed in the first part 
of the Appellate Body's above approach in considering the measure under review.651 The second 
step is a  "comparative analysis"652, which involves a "weighing and balancing" of the factors listed 
in the second part of the Appellate Body's abov e approach in order to compare the amended COOL 
measure with each reasonably available altern ative measure put forward by the complainants.653 
Mexico notes that, according to the Appellate Body, in some situations the second, 
"comparative analysis" will not be necessary654: 
We can identify at least two instances where a comparison of the challenged measure 
and possible alternative measures may not be required. For example, it would seem to 
us that if a measure is not trade restrictive, then it may not be inconsistent with 
Article 2.2. Conversely, if a measure is trade restrictive and makes no contribution to 
the achievement of the legitimate objective, then it may be inconsistent with Article 2.2.
655 
7.294.  Relying on the phrase "at least two in stances", Mexico contends that the amended 
COOL measure represents a further instance where inconsistency with Article 2.2 can be determined by a mere "relational analysis".
656 Mexico invites the Panel to do that, and to move on 
to addressing alternatives only if the first step would not lead to a finding of inconsistency.657 
7.295.  The United States disagrees.658 According to the United States, "[t]he comparison between 
the challenged measure and an alternative measure is … central to the [Article 2.2] analysis."659 
As the Appellate Body held in the original dispute: 
to demonstrate that a technical regulation is inconsistent with Article 2.2, the 
complainant must make a prima facie  case by presenting evidence and arguments 
sufficient to establish that the challenged  measure is more trade restrictive than 
necessary to achieve the contribution it makes to the legitimate objective, taking 
account of the risks non-fulfilment would create. A complainant may, and in most 
cases will, also seek to identify a possible alternative measure that is less trade 
                                               
648 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (footnote omitted). 
649 Mexico's first written submission, para. 153. 
650 Mexico's second written submission, para. 90. 
651 Mexico's first written submission, para. 153. 
652 Mexico's second written submission, para. 90. 
653 Mexico's first written submission, para. 153. 
654 Mexico's first written submission, para. 155. 
655 Appellate Body Report, US – Tuna II (Mexico) , para. 322, footnote 647 (emphasis original). 
656 Mexico's first written submission, para. 155. 
657 Mexico's first written submission, paras. 177-178. 
658 This disagreement between Mexico and the United States dates back to the original dispute. Before 
the Appellate Body, Mexico argued that: "[t]he concept of necessity is used in both the first and second sentences and must be given meaning in both sentences, that is, in the context of the creation of an obstacle to trade and in the context of a less trade-restrictive alternative. Thus, whether the technical regulation at issue is more trade restrictive than ne cessary is a 'two-step' an alysis. Mexico considers this approach to be in 
line with the Appellate Body's clarification in US – Gambling and in Brazil – Retreaded Tyres that weighing and 
balancing involves two steps: first, a preliminary analys is of the necessity of the challenged measure on the 
basis of all relevant factors and, second, the conclusi on of the preliminary analys is must be confirmed by 
comparing the measure with possible al ternatives." Appellate Body Reports, US – COOL , para. 108. 
659 United States' first written submission, para. 146 (citing Appellate Body Report, Australia – Apples , 
para. 356). WT/DS384/RW • WT/DS386/RW 
 
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  restrictive, makes an equivalent contribution to the relevant objective, and is 
reasonably available.660 
7.296.  In this compliance dispute, neither Mexico, nor the United States, question that the 
"relational analysis" of the contested measure precedes the "comparative analysis" of the 
contested measure and suggested alternatives. What Mexico and the United States disagree on is 
whether the "relational analysis" might be sufficient for determining that the amended COOL measure is inconsistent with Article 2.2. 
7.297.  As Mexico points out, the Appellate Body foresaw this possibility in "at least two 
instances".
661 In US – Tuna II (Mexico) , the Appellate Body identified the above two scenarios in a 
footnote to a statement foreseeing the need for the comparative analysis "in most cases".662 In the 
original US – COOL  dispute, the Appellate Body confirmed both exceptions663 as well as the need 
for a comparative analysis "in most cases".664 
7.298.  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 co ntext of the amended COOL measure. 
7.299.  In the original dispute, the United States challenged the original panel's "two-stage test 
that involved an initial inquiry into whether the measure fulfils the objective, and only if so, a separate and subsequent examination of whethe r the measure is more trade restrictive than 
necessary based on the existence of a reasonably available less trade-restrictive alternative 
measure".
665 The Appellate Body "agree[d] with the United States that" "the Panel erred" 
"by finding the COOL measure to be inconsistent with Article 2.2 of the TBT Agreement without 
examining the proposed alternative measures ."666 
7.300.  The Appellate Body took issue with the or iginal panel stopping short of the "comparative 
analysis".667 The Appellate Body "consider[ed] 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."668 
7.301.  The 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 
trade-restrictive than necessary to fulfil a legitimate objective'."
669 
                                               
660 Appellate Body Reports, US – COOL , para. 379 (emphasis added). See also United States' first 
written submission, para. 145. 
661 Mexico's first written submission, para. 155 (citing Appellate Body Report, US – Tuna II (Mexico) , 
para. 322, footnote 647); Appellate Body Reports, US – COOL , para. 376, footnote 748. 
662 Appellate Body Report, US – Tuna II (Mexico) , para. 322. 
663 Appellate Body Reports, US – COOL , para. 376, footnote 748. 
664 Appellate Body Reports, US – COOL , paras. 376, 379, 461, and 471. 
665 Appellate Body Reports, US – COOL , para. 455. 
666 Appellate Body Reports, US – COOL , para. 469 (emphasis added). "As the Appellate Body explained 
in US – Tuna II (Mexico) , the [original p]anel in this case was re quired also to evalua te the other factors 
referred to in Article 2.2 [i.e. other than whether the original COOL meas ure fulfilled its objective], and to 
undertake a comparison with the alternative measures proposed by Mexico and by Canada." Appellate Body 
Reports, US – COOL , para. 469. 
667 Appellate Body Reports, US – COOL , para. 469. 
668 Appellate Body Reports, US – COOL , para. 471 (emphasis added). 
669 Appellate Body Reports, US – COOL , para. 479 (emphasis added). See also ibid. para. 470. WT/DS384/RW • WT/DS386/RW 
 
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  7.302.  The Appellate Body undertook the "comparative analysis" before trying to draw "overall" 
conclusions with regard to Article 2.2.670 The EC – Seal Products panel adopted a similar 
approach671, noting that "[t]he Appellate Body stated that all these factors [including a comparison 
with alternative measures] provide the basis for th e determination of what is to be considered 
'necessary' in the sense of Article 2.2 … in a particular case."672 
7.303.  We 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)673 and the original US – COOL dispute674, 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 grav ity 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. 
7.6.1.3  Relative importance of interests or values furthered by the measure as an 
additional factor 
7.304.  According to Mexico, the "relative importance" of the interests or values furthered by the 
challenged measure is the first factor that a WTO adjudicator should assess when reviewing 
necessity under Article 2.2 of the TBT Agreement. Me xico contends that, "similar to the 'necessity' 
analysis in Article XX of the GATT 1994 and Articl e XIV of the GATS", "[t]he process [of assessing 
'necessity' under Article 2.2] begins with an assessment of the 'relative importance' of the 
common interests or values furthered by the challenged measure"
675; "after that a panel should 
consider other relevant factors of the measure at issue, including the contribution of the measure to the realization of the ends pursued by it and the trade restrictive impact of the measure, and 
undertake a weighing and balancing process."
676 
7.305.  Mexico recognizes that "the relative importance of the common interests or values 
furthered by the challenged measure" "has not been explicitly identified [as a factor] in the context 
of the necessity test under Article 2.2."677 According to Mexico, "however, in referring to the 
factors to be considered under Article 2.2, the A ppellate Body referred to 'factors that include', 
indicating that the referenced factors are not exhaustive."678 
                                               
670 Appellate Body Reports, US – COOL , para. 491. 
671 Panel Reports, EC – Seal Products , paras. 7.421-7.422 and 7.500-7.505. 
672 Panel Reports, EC – Seal Products , para. 7.356. 
673 Appellate Body Report, US – Tuna II (Mexico) , para. 322. 
674 Appellate Body Reports, US – COOL , paras. 471-491. See also Panel Reports, EC – Seal Products , 
part 7.3.3. 
675 Mexico's first written submission, para. 156. 
676 Mexico's first written submission, para. 156. While Canada does not argue for a separate factor of 
the Article 2.2 legal test, it does reference the relative importance of interests or values in the context of the "risks non-fulfilment would create". See para. 7.378 below. 
677 Mexico's first written submission, para. 157. 
678 Mexico's first written submission, para. 157. WT/DS384/RW • WT/DS386/RW 
 
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  7.306.  Turning to the amended COOL measure, Mexico contends that "[t]he relative importance 
of the provision of consumer information is substantially lower than: protecting the environment or protecting human beings from health risks, both  of which are vital and important in the highest 
degree; and protecting public morals, which a panel observed ranks among the most important 
values or interests pursued by Members as a matter of public policy."
679 
Accordingly, Mexico argues, "the interests and values furthered by the Amended COOL Measure 
fall on the low end of the spectrum of importance."680 
7.307.  The United States counters that Mexico's approach is "faulty". The United States notes that 
"[t]his factor does not appear in the text [of Article 2.2], and Mexico explicitly concedes that such a factor is not part of the Appellate Body's Article 2.2 analysis in either US – COOL  or in US – Tuna 
II (Mexico) ."
681 The United States contrasts "Mexico's argu[ment before the Appellate Body] 
that the 'importance' of the measure should be analyzed for an Article 2.2 claim" with the 
"Appellate Body explaining Mexico's burden of pr oof for Article 2.2" without making any reference 
to such factor.682 
7.308.  In US – Tuna II (Mexico) , the Appellate Body referenced the "weighing and balancing" 
under the necessity test of Article XX of the GATT 1994683 in providing guidance on the factors 
involved in a necessity analysis under the first two sentences of Article 2.2. The Appellate Body did 
not identify the relative importance of the values pursued by the contested measure as a relevant 
factor for assessing necessity under Article 2.2.684 In US – COOL , the Appellate Body took a similar 
approach685 – despite Canada's argument that, like in the context of Article XX of the GATT 1994, 
"a measure will be easier to justify [under Article 2.2] if it pursues an objective that is 'vital' or 
'important'."686 In neither dispute  did the Appellate Body identify "relative importance" as a factor 
when setting out the overall test under Article 2.2.687 
7.309.  The Appellate Body did confirm the relevance of Article XX for interpreting the 
TBT Agreement688, and referenced some potential similarities between the necessity tests under 
Article XX of the GATT 1994 and Article 2.2 of the TBT Agreement.689 In this compliance dispute, 
Mexico itself argues that there is a distinct ion between the TBT Agreement, on the one hand, 
and the GATT 1994 and the GATS, on the other.690 In describing the differences between the 
                                               
679 Mexico's first written submission, para. 165. 
680 Mexico's first written submission, para. 166. See also Mexico's second written submission, 
paras. 95-96. 
681 United States' first written submission, para. 147. 
682 United States' first written submission, para. 147 (referencing Appellate Body Reports, US – COOL , 
paras. 107 and 379). 
683 Appellate Body Report, US – Tuna II (Mexico) , para. 318, footnotes 642 and 643. See also 
Appellate Body Reports, US – COOL , para. 374, footnote 745. 
684 The Appellate Body held that "[b] oth the first and second sentence of  Article 2.2 refer to the notion 
of 'necessity'. These sentences are linked by the terms '[f]or this purpose', which suggests that the second 
sentence qualifies the terms of the first sentence and elaborates on the scope and meaning of the obligation 
contained in that sentence. The Appe llate Body has previously noted that  the word 'necessary' refers to a 
range of degrees of necessity, depending on the connection in which it is used. In the context of Article 2.2, 
the assessment of 'necessity' involves a relational analysis of the trade-restrictiveness of the technical 
regulation, the degree of contribution that it makes to the achievement of a legitimate objective, and the risks non-fulfilment would create . We consider, therefore, that all th ese factors provide the basis for the 
determination of what is to be considered 'necessary ' in the sense of Article 2.2 in a particular case." 
Appellate Body Report, US – Tuna II (Mexico) , para. 318 (footnotes omitted, emphasis added). 
685 Appellate Body Reports, US – COOL , para. 374. 
686 Appellate Body Reports, US – COOL , para. 79. 
687 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (footnote omitted) . See also Appellate Body 
Reports, US – COOL , para. 378. In its arguments, Mexico itse lf cites this approach formulated by the 
Appellate Body. See Mexico's first written submission, para. 151. 
688 Appellate Body Report, US – Clove Cigarettes , para. 96. 
689 Appellate Body Report, US – Tuna II (Mexico) , para. 318, footnotes 642 and 643. See also 
Appellate Body Reports, US – COOL , para. 374, footnote 745, and para. 445. The Appellate Body also noted 
that "[b]y its terms, Article 2.2 requires an assessment of the necessity of the trade-restrictiveness of the 
measure at issue." Appellate Body Reports, US – COOL , para. 375. See also Appellate Body Report, US – 
Tuna II (Mexico) , para. 319. 
690 According to Mexico, "[a]lthough the necessity test in Article 2.2 is similar to the necessity tests in 
Articles XX of the GATT 1994 and XIV of the GATS, it is no t identical. The necessity test in Article 2.2 refers to 
the necessity of the trade-restrictiveness  of the measure whereas the necessity tests in the other two 
 WT/DS384/RW • WT/DS386/RW 
 
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  relevant necessity tests, Mexico explains that "[i]mportantly, Article 2.2 includes the phrase 
'taking account of the risks non-fulfilment would create'."691 According to Mexico, "[t]his treaty 
language does not exist in [Articles XX of th e GATT 1994 and XIV of the GATS] and meaning must 
be given to this difference."692 
7.310.  "The risks non-fulfilment would create" was identified by the Appellate Body as a "further" 
factor to be assessed in the context of Article 2.2.693 As Mexico points out, "the risks non-fulfilment 
would create" is unique to the text of Article 2.2 of the TBT Agreement, does not appear in 
Article XX of the GATT 1994 and Article XIV of the GATS. We agree that meaning must be given to 
this difference.694 In our view, the most appropriate way to give meaning to this difference is to 
address the risk non-fulfilment of the objective wo uld 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. 
7.311.  Accordingly, we dismiss Mexico's contention that relative importance of the common 
interests or values furthered by the challenged measure is a separate factor of the Article 2.2 test, let alone the starting point of an Article 2.2 analysis. Instead, we review the complainants' 
Article 2.2 claims by analysing the factors set out in the Appellate Body's relevant statements, 
which we have listed above, including the risks non-fulfilment of the objective would create.
695 
7.6.2  The amended COOL measure's degree of  contribution to a legitimate objective 
7.312.  As the Appellate Body held, "the question  of whether a technical regulation 'fulfils' an 
objective is concerned with the degree of contribution that the technical regulation makes toward 
the achievement of the legitimate objective."696 Assessing this presupposes a determination of 
both the amended COOL measure's objective and whether this objective is legitimate.697 
7.6.2.1  The objective of the amended COOL measure 
7.313.  In the original dispute, the Appellate Body summarized the "approach to be followed by a 
panel in determining the objective a Member seeks to achieve by means of a technical regulation": 
That analysis calls for an independent and objective assessment, based on an 
examination of the text of the measure, its design, architecture, structure, legislative history, as well as its operation. While a panel may take as a starting point the 
                                                                                                                                               
provisions refer to the necessity of the challenged measure ." Mexico's first written submission, para. 158 
(emphasis added). 
691 Mexico's first written submission, para. 158. 
692 Mexico's first written submission, para. 158. Canada makes an argument similar to Mexico's in the 
context of the risk of non-fulfilment. See Canada's first written submission, para. 116. 
693 The Appellate Body held that "t he obligation to consider 'the risks non-fulfilment would create' 
suggests that the comparison of the challenged measure with a possible alternativ e measure should be made 
in the light of the nature of the risks at issue and th e gravity of the consequences that would arise from non-
fulfilment of the legitimate objective. This suggests a further element of weighing and balancing in the determination of whether the trade-restrictiveness of a technical regulation is 'nec essary' or, alternatively, 
whether a possible alternative measure, which is less trade restrictive, would make an equivalent contribution to the relevant legitimate objective, taking account of the risks non-fulfilment would create, and would be reasonably available." Appellate Body Report, US – Tuna II (Mexico) , para. 321. See also Appellate Body 
Reports, US – COOL , paras. 377, 378, and 478. 
694 Mexico's first written submission, para. 158. 
695 Appellate Body Reports, US – Tuna II (Mexico) , para. 322; and US – COOL , para. 378. 
696 Appellate Body Reports, US – Tuna II (Mexico) , para. 315. 
697 Appellate Body Reports, US – COOL , paras. 313-315 and 371-373. Likewise, as the panel in EC – 
Seal Products  held, "to assess a measure's consistency with the obligations under Article 2.2 of the 
TBT Agreement, the Panel must first identify the objective pursued." Panel Reports, EC – Seal Products , 
para. 7.372 (emphasis added). Following its analysis of the objective, the EC – Seal products panel went on to 
address "the legitimacy of the iden tified objective". Panel Reports, EC – Seal Products , section 7.3.3.2. The 
original panel's approach was similar: "[h]aving dete rmined the objective pursued by the United States 
[through the original COOL measure], [the original panel] proceed[ed] to examine its legitimacy." Panel Reports, US – COOL , para. 7.628. WT/DS384/RW • WT/DS386/RW 
 
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  responding Member's characterization of the objective it pursues through the 
measure, a panel is not bound by such characterization. This is so especially where the objective of a measure is contested between the parties, and competing arguments have been raised on the basis of the text of the measure, its design, 
architecture, structure, legislative history, and evidence relating to its operation.
698 
7.314.  The parties agree that the amended COOL measure pursues the same objective as the 
original COOL measure.699 What the parties dispute is the precise expression of the objective as 
found by the original panel and in particular the Appellate Body. Specifically, the disagreement 
concerns whether the objective is generally "the provision consumer information on origin" (as argued by the complainants)
700, or more specifically to provide information on where livestock 
are born, raised, and slaughtered (as argued by the United States).701 
7.315.  In the original dispute, the Appellate Body identified "the provision of consumer 
information on origin" as "what [it] consider[ed] the [original p]anel's understanding of the objective pursued through the COOL measure to be".
702 The Appellate Body went on to find that 
the original panel did not err in identifying the objective pursued through the COOL measure as 
being "to provide consumer information on origin".703 Nevertheless, in a passage relied upon by 
the United States, the Appellate Body stated th at "we see no reason to disturb the [original 
p]anel's finding with respect to the legitimacy of the objective pursued by the United States 
through the COOL measure, namely, to provide consumers with information on the countries in which the livestock from which the meat they purchase is produced were born, raised, and slaughtered."
704 
7.316.  The complainants point out that the more narrow formulation (providing for specific 
production steps) appears in the Appellate Body's discussion of the legitimacy  of the measure's 
objective rather than its identification, and may skew the comparison with alternative measures.705 
The United States counters that "the relevant objective can be stated in a number of ways". 
While conceding that "it could be stated as 'to provide consumer information on origin'", the United States argues that "the same objective can be stated in more specific terms, such as 
how the Appellate Body has also stated it", and that these "are simply two formulations of the 
same objective".
706 The United States adds that the difference in characterization of the objective 
is "immaterial" insofar as the Article 2.2 analysis concerns "the degree of contribution to the objective that a measure actually  achieves".
707 In its view, "[t]he degree of contribution to the 
objective that the measure actually achieves is the same  under either formulation."708 
                                               
698 Appellate Body Reports, US – COOL , para. 395. See also Appellate Body Report, US – Tuna II 
(Mexico) , para. 314. 
699 Canada's first written submission, para. 120; Mexico's first written submission, para. 167; and 
United States' first written submission, para. 143. 
700 Canada's first written submission, para. 120; Mexico's first written submission, para. 167. 
701 United States' first written submission, paras. 160 and 166. 
702 Appellate Body Reports, US – COOL , para. 391. 
703 Appellate Body Reports, US – COOL , para. 433. 
704 Appellate Body Reports, US – COOL , para. 453. 
705 Canada's second written submission, para. 64 ("Th e United States attempts to describe in an 
artificially narrow and self-serving manner the obje ctive it pursues through th e measure.") and para. 68 
("The United States' attempt to modify the description of its objective, if accepted, would give rise to … the reduced possibility of formulating alternative measures that meet the TBT Article 2.2 threshold."); Mexico's 
second written submission, para. 86 ("The United States at tempts to redefine the obje ctive to an artificially 
narrow and self-serving one. … [I]f an objective is descri bed in an artificially narrow manner so as to correlate 
exactly with the challenged measure, it will rend the formulation of alternatives that meet the Article 2.2."). In this regard, both complainants cite New Zealand's third-party submission, para. 22. 
706 United States' second written submission, para. 103. 
707 United States' second written submission, para. 105 (citing Appellate Body Reports, US – COOL , 
para. 426 (emphasis original by the Appellate Body)). 
708 United States' second written submission, para. 105 (emphasis original). WT/DS384/RW • WT/DS386/RW 
 
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  7.317.  As the parties point out, the Appellate Body  referred to the objective of the original COOL 
measure in at least two contexts: 
1) in reviewing the original panel's analysis of the original COOL measure's 
objective: 
 
"to provide consumer information on origin855" 
_______________ 
855 "We recall in this respect that the COOL  measure defines the 'origin' of beef and 
pork as a function of the country or countries in which the livestock from which the 
meat is derived were born, raised, and slaughtered."709 
(NB: The Appellate Body used an identical formulation and footnoting 
technique in its conclusions.710); and 
2) in reviewing the original panel's analysis of the legitimacy of the original COOL 
measure's objective: 
"to provide consumers with information on the countries in which the 
l i v e s t o c k  f r o m  w h i c h  t h e  m e a t  t h e y  p u r c h a s e  i s  p r o d u c e d  w e r e  b o r n ,  
raised, and slaughtered."711 
(NB: The Appellate Body summarised this second formulation in the same 
paragraph as "providing consumers with information on origin, as defined 
under the COOL measure".712) 
7.318.  The Appellate Body emphasised "the importance of a panel identifying with sufficient 
clarity and consistency the objective or objectives pursued by a Member through a technical 
regulation".713 To do this, we need not conduct a detailed, de novo  assessment of the objective. 
The parties agree that the amended COOL measure continues to serve the same objective as its predecessor. The 2013 Final Rule refers to its objective by using a phrase almost identical to that 
considered by the original panel in establishing the objective of the original COOL measure.
714 
The 2013 Final Rule did not change the objective of the original COOL measure; rather, it merely a d j u s t e d  t h e  d e s i g n  o f  t h e  o r i g i n a l  C O O L  m e a s u r e  –  i n  p a r t  t o  c o m p l y  w i t h  t h e  
DSB recommendations and rulings in the original dispute.
715 
                                               
709 Appellate Body Reports, US – COOL , para. 433 and footnote 855. 
710 Appellate Body Reports, US – COOL , para. 496(b)(ii). 
711 Appellate Body Reports, US – COOL , para. 453. 
712 Appellate Body Reports, US – COOL , para. 453. 
713 Appellate Body Reports, US – COOL , para. 387. 
714 Panel Reports, US – COOL , para. 7.680 (citing 2009 Final Rule, p. 2658): "to require retailers to 
notify their customers of the country of origin of cove red commodities." The 2013 Final Rule states that "[t]he 
Agency is issuing this rule to make changes to the labelling provisions for muscle cut covered commodities to provide consumers with more specific information…" and the "changes will provide consumers with more specific information about the origin of muscle cut covered commodities." 2013 Final Rule, p. 31367. Further, 
the amended COOL Rule stipulates that  "[t]he purpose of COOL is to prov ide consumers with information upon 
which they can make informed shoppi ng choices." 2013 Final Rule, p. 31376. 
715 The 2013 Final Rule states that "[t]he Agency is is suing this rule to make changes to the labeling 
provisions for muscle cut covered co mmodities to provide consumers with more specific information". Under 
the header "The Purpose of the Regulatory Action", the 2013  Final Rule explains: "As a result of this action, the 
Agency reviewed the overall regulatory program and is issuing this rule, under the authority of the Agricultural Marketing Act (7 U.S.C. 1621 et seq. ), to make changes to the labeling provisions for muscle cut covered 
commodities and certain other modifications to the program. The Agency expects that these changes will improve the overall operation of the program and also bring the current mandatory COOL requirements into 
compliance with U.S. international trade obligations." 2013 Final Rule, p. 31367. WT/DS384/RW • WT/DS386/RW 
 
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  7.319.  Nor do we need to choose between the abov e two formulations by the Appellate Body. It is 
sufficient to recall how this matter was resolved in the original dispute. The original panel identified the objective of the original COOL measure in three places in its report, as follows: 
a. "to provide consumer information on origin"
716; 
b. "to provide as much clear and accurate information as possible to consumers"717; and 
c. "consumer information on origin as declared by the United States."718 
7.320.  Assessing whether "the [original] Panel Err[ed] in Its Identification of the Objective 
Pursued"719, the Appellate Body noted all three formulations of the objective articulated by the 
original panel720, and pointed out the "uncertainty in [the original panel's] reasoning" introduced 
by "these differing formulations of the objective".721 To reconcile the original panel's different 
formulations, the Appellate Body surmised that the original panel had probably considered the 
more general formulation ("the provision of consumer information on origin") as reflecting the 
objective, and the more specific one ("the provision of as much clear and accurate  origin 
information as possible  to consumers"722) as relating to "the level of fulfilment that the 
United States desired to achieve."723 
7.321.  The Appellate Body cautioned against determining "in the abstract" the level at which a 
Member seeks to achieve an objective.724 It confirmed that Members have the freedom to set the 
levels at which they wish to achieve a legitimate objective, and that assessing the intended level of 
fulfilment was unnecessary.725 The Appellate Body continued by "identif[ying] what [it] 
consider[ed] the [original p]anel's understanding of the objective pursued through the COOL measure to be[:] … the provision of consumer information on origin".
726 The Appellate Body stated 
that, despite the original panel's "segmented" analysis of the objective, "in both instances … the 
[original p]anel reached the same result: that the objective that the United States pursues through 
the COOL measure is the provision of consumer information on origin."727 Likewise, in reviewing 
Canada's other appeal under Article 11 of the DSU, the Appellate Body noted that "[t]he [original 
p]anel concluded, based on the text, design, and structure of the COOL measure, that the COOL 
measure's objective is to provide consumer information on origin."728 
                                               
716 Panel Reports, US – COOL , para. 7.617. 
717 Panel Reports, US – COOL , para. 7.620. 
718 Panel Reports, US – COOL , para. 7.685. 
719 Appellate Body Reports, US – COOL , part VI.C.3. 
720 Appellate Body Reports, US – COOL , paras. 384, 385, and 387. 
721 Appellate Body Reports, US – COOL , para. 387. 
722 Appellate Body Reports, US – COOL , para. 388 (emphasis original). 
723 Appellate Body Reports, US – COOL , para. 388. 
724 According to the Appellate Body, "in preparing, ad opting, and applying a measure in order to pursue 
a legitimate objective, a Member articulates, either implicitly or explicitly, the level at which it seeks to pursue that particular objective. Neither Article 2.2 in particular, nor the TBT Agreement in general, requires that, in 
its examination of the objective pursued, a panel must discern or identify, in the abstract, the level at which a responding Member wishes or aims to achi eve that objective. Rather, what a panel is required to do, under 
Article 2.2, is to assess the degree to which a Member's technical regulation, as adopted, written, and applied, contributes to the legitimate objective pursue d by that Member." Appellate Body Reports, US – COOL , 
para. 390 (emphasis original). 
725 According to the Appellate Body, "the sixth recital of the preamble of the TBT Agreement provides 
that a Member shall not be prevented from taking measures necessary to achieve a legitimate objective 'at the levels it considers appropriate'. … This does no t, however, require a se parate assessment of a desired  level of 
fulfilment." Appellate Body Reports, US – COOL , para. 390, footnote 779; see also para. 373. 
726 Appellate Body Reports, US – COOL , para. 391. 
727 Appellate Body Reports, US – COOL , para. 394. 
728 Appellate Body Reports, US – COOL , para. 407 (footnote omitted). WT/DS384/RW • WT/DS386/RW 
 
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  7.322.  The Appellate Body rejected the United States' appeal of the original panel's finding 
concerning the COOL measure's "level of fulfilme nt", reiterating that the identification of the 
objective should not entail an analysis of the respondent's desired level of fulfilment.729 
Ultimately, the Appellate Body concluded by reconciling all three of the original panel's 
formulations of the objective as follows: "we find  that the Panel did not err, in paragraphs 7.617, 
7.620, and 7.685 of the Panel Reports, in identify ing the objective pursued by the United States 
through the COOL measure as being to provide consumer information on origin ."730 This is the first 
formulation used by the Appellate Body, as invoked by the complainants in this compliance 
dispute. It is the formulation of the objective th e Appellate Body chose to use in concluding its 
review of the original panel's analysis of the original COOL measure's objective. The same formulation is reproduced in the conclusions of the Appellate Body reports.
731 
7.323.  We observe that that the above findin g of the Appellate Body is supplemented by a 
footnote referencing the three production steps: 
We recall in this respect that the COOL measure defines the "origin" of beef and pork 
as a function of the country or countries in which the livestock from which the meat is 
derived were born, raised, and slaughtered.732 
7.324.  However, we do not consider this footnote  as part of the Appellate Body's formulation of 
the objective. We read it merely as an explan atory remark by the Appellate Body on how the 
original COOL measure defined origin. 
7.325.  The Appellate Body recognized the need to review the challenged measure in determining 
the pursued objective.733 However, the Appellate Body did not equate the measure's design with 
the objective pursued through the measure. Rather, it held that the measure might articulate the 
desired level of fulfilment734, while cautioning against a separate assessment of this latter – both 
for identifying the objective and for examining an Article 2.2 claim in general.735 In requiring the 
objective's precise identification by panels, the Appellate Body emphasised that this serves to 
assess the degree of contribution: "the relevant objective is the benchmark against which a panel must assess the degree of contribution made by a challenged technical regulation, as well as by 
proposed alternative measures."
736 
7.326.  We consider that the assessment of the de gree of contribution would be confounded and 
would become virtually meaningless if the object ive pursued by the amended COOL measure were 
to be equated with the way in which the same measure pursues that objective. A meaningful 
review of a Member's challenged measure entails a review against objective standards, not those 
of the challenged measure itself. Although the A ppellate Body referred to the production steps in 
discussing the objective of the COOL measure737, it did so in the context of reviewing Canada's 
                                               
729 According to the Appellate Body, "[the United St ates' appeal] assume[s] th at, in identifying the 
objective, the Panel was also required to identify the desired "level of fulf ilment". We have already explained in 
our analysis above why it was not necessary or appropriat e for the Panel, in identifying the objective (that is, 
to provide consumer information on orig in), to further identify the level at  which the United States desired to 
fulfil its objective of providing consumer information on origin (that is, to provide as much clear and accurate  
origin information as possible  to consumers). As we noted, the fulfilmen t of an objective is a matter of degree, 
and what is relevant for the inquiry under Article 2.2 is the degree of contribution to the objective that a 
measure actually  achieves." Appell ate Body Reports, US – COOL , para. 426 (emphasis original). 
730 Appellate Body Reports, US – COOL , para. 433 (footnote omitted, emphasis added). 
731 Appellate Body Reports, US – COOL , para. 496(b)(ii). 
732 Appellate Body Reports, US – COOL , para. 433, footnote 855. See also Appellate Body Reports, US –
 COOL , para. 496(b)(ii), footnote 1018. 
733 Appellate Body Reports, US – COOL , para. 395. See also Appellate Body Report, US – Tuna II 
(Mexico) , para. 314. 
734 "[I]n preparing, adopting, and applying a measur e in order to pursue a legitimate objective, a 
Member articulates, either implicitly or explicitly, the level at which it seeks to pursue that particular objective." Appellate Body Reports, US – COOL , para. 390. 
735 Appellate Body Reports, US – COOL , paras. 390 and 426. 
736 Appellate Body Reports, US – COOL , para. 387. 
737 Appellate Body Reports, US – COOL , para. 435. WT/DS384/RW • WT/DS386/RW 
 
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  appeal against "the [original p]anel's finding that 'providing consumer information on origin is a 
legitimate objective within the meaning of Article 2.2'738".739 
7.327.  Noting that "Canada ha[d] accepted, at a general level, that the provision of consumer 
information on origin can constitute a legitimate objective", the Appellate Body concluded that 
Canada "appears to consider that the [original p]anel [had] erred in finding the objective of 
providing consumers with information on origin as defined under the COOL measure  (that is, based 
on where the livestock from which meat is deri ved were born, raised, and slaughtered) to be 
legitimate."740 According to the Appellate Body, Canada "seem[s] to imply that, in assessing 
legitimacy, a distinction should be drawn between the provision of consumer information on origin, generally, and the provision of consumer information on origin based on the definition of 'origin' under the COOL measure."
741 
7.328.  The Appellate Body refrained from reviewing this possible distinction. It merely noted that 
"Canada has not explained why it is not legitimate to define the origin of meat according to the 
countries in which the livestock from which it is derived were born, raised, and slaughtered."742 
The Appellate Body added that "[i]t [wa]s therefore unclear on what basis or to what extent, in the 
context of its arguments relating to legitimacy , Canada challenges the precise way in which the 
COOL measure defines 'origin.'"743 
7.329.  This lack of clarity was a principal reason for the Appellate Body's conclusion that it "s[aw] 
no reason to disturb the [original p]anel's finding with respect to the legitimacy of the objective pursued by the United States through the COOL  measure, namely, to provide consumers with 
information on the countries in which the livestock from which the meat they purchase is produced 
were born, raised, and slaughtered."
744 As the complainants point out, the Appellate Body was 
merely reviewing the original panel's analysis of the objective's legitimacy. After the above conclusion referring to the production steps, and in the same paragraph, the Appellate Body used 
the more general formulation of the objective in its actual finding on legitimacy: 
We … dismiss this ground of Canada's appeal and find that the Panel did not err, in 
paragraph 7.651 of the Panel Reports, in finding the provision of consumer 
information on origin is a legitimate objective within the meaning of Article 2.2 of the 
TBT Agreement.
745 
7.330.  Finally, in the context of its Article 2.1 analysis, the Appellate Body quoted the original 
panel's articulation of the objective as "to provide consumer information on origin".746 
The Appellate Body distinguished this from the defi nition of origin, "under the COOL measure, as a 
function of the countries in which the cattle and hogs from which the meat is derived were born, raised and slaughtered."
747 The Appellate Body considered this latter as "particularly relevant to an 
inquiry as to the COOL measure's even-handedness" under Article 2.1, rather than for defining the 
original COOL measure's objective.748 
7.331.  In light of the above, we adopt the Appellate Body's first formulation (without the 
footnote) as the identification of the objective of the amended COOL measure: "to provide 
consumer information on origin".749 
                                               
738 (footnote original) Panel Reports, para. 7.651. 
739 Appellate Body Reports, US – COOL , para. 434 (footnote omitted). 
740 Appellate Body Reports, US – COOL , para. 446 (footnoted omitted, emphasis original). 
741 Appellate Body Reports, US – COOL , para. 447. 
742 Appellate Body Reports, US – COOL , para. 447 (emphasis original). 
743 Appellate Body Reports, US – COOL , para. 447 (emphasis added). 
744 Appellate Body Reports, US – COOL , para. 447. 
745 Appellate Body Reports, US – COOL , para. 453. See also Appellate Body Reports, US – COOL , 
para. 496(b)(iii). 
746 Appellate Body Reports, US – COOL , para. 332 (citing Panel Reports, US – COOL , paras. 7.617, 
7.620, 7.671, and 7.713). 
747 Appellate Body Reports, US – COOL , para. 332. 
748 Appellate Body Reports, US – COOL , para. 333. 
749 Appellate Body Reports, US – COOL , paras. 433 (footnote omitted) and 496(b)(ii) (footnote omitted). WT/DS384/RW • WT/DS386/RW 
 
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  7.6.2.2  Legitimate objective 
7.332.  The non-exhaustive list of legitimate object ives in Article 2.2 does not specify the provision 
of consumer information on origin. As the Appellate Body explained in the original dispute, assessing an objective not listed in Article 2.2 requires further analysis of the legitimacy of such 
objective.
750 Nevertheless, we recall that the original panel found the objective of the original 
COOL measure to be legitimate751, and that the Appellate Body upheld this finding, as explained in 
the previous section.752 As noted, the amended COOL measure leaves the objective unchanged. 
Further, as the United States points out753, neither complainant calls into question the legitimacy 
of the amended COOL measure's obje ctive in this compliance dispute.754 
7.333.  Accordingly, there is no reason to re-o pen the issue of legitimacy: the objective of the 
amended COOL measure, i.e. to provide consumer information on origin, remains a legitimate 
objective under the TBT Agreement. 
7.6.2.3  Degree of contribution 7.334.  As explained by the Appellate Body
755: 
[t]he degree or level of contribution of a technical regulation to its objective is not an 
abstract concept, but rather something that is revealed through the measure itself. In preparing, adopting, and applying a measure in order to pursue a legitimate 
objective, a WTO Member articulates, either implicitly or explicitly, the level at which it 
pursues that objective.
756 Thus, a panel adjudicating a claim under Article 2.2 must 
seek to ascertain—from the design, structure, and operation of the technical regulation, as well as from evidence relating to its application—to what degree, if at 
all
757, the challenged technical regulation, as written and applied, actually contributes 
to the achievement of the legitimate  objective pursued by the Member.758 
7.335.  Before assessing the amended COOL measure's degree of contribution, we recall the 
relevant findings in the original dispute and the scope of our review of the amended COOL 
measure's degree of contribution. 
7.6.2.3.1  Relevant findings in the original dispute 
7.336.  In reviewing the original panel's relevant findings, the Appellate Body noted that, 
according to the original panel, "information on the origin of products must be clear and accurate 
                                               
750 According to the Appellate Body "a 'legitimate object ive' refers to an aim or target that is lawful, 
justifiable, or proper. Article 2.2 lists specific examples of such 'legitimate objectives', namely: national security requirements; the prevention of deceptive prac tices; and the protection of human health or safety, 
animal or plant life or health, or the environment. The use of the words ' inter alia ' in Article 2.2 introducing 
that list, however, signifies th at the list of legitimate objectives is no t a closed one. In addition, the objectives 
expressly listed provide a reference po int for other objectives that may be considered to be legitimate in the 
sense of Article 2.2. The sixth and seventh recitals of the preamble of the TBT Agreement refer to several 
objectives, which to a large extent overlap with the object ives listed in Article 2.2. As the Appellate Body has 
also noted, objectives recognized in the provisions of  other covered agreements ma y provide guidance for, or 
may inform, the analysis of what might be considered  to be a legitimate objective under Article 2.2." 
Appellate Body Reports, US – COOL , para. 370. 
751 Panel Reports, US – COOL , para. 7.651. 
752 Appellate Body Reports, US – COOL , paras. 453 and 496(b)(iii). See para. 7.326 above. 
753 United States' first written submission, paras. 143-144. 
754 Canada's first written submission, para. 120; Mexico's first written submission, 167. 
755 Appellate Body Reports, US – COOL , para. 373. 
756 (footnote original) A ppellate Body Report,  US – Tuna II (Mexico) , para. 316. 
757 (footnote original) This may involve an assessment of whether the measure at issue is capable of 
achieving the legitimate object ive. (Appellate Body Report,  US – Tuna II (Mexico) , footnote 640 to para. 317) 
758 (footnote original) The Appellate Body explaine d that, as is the case when determining the 
contribution of a measure to the achievement of a part icular objective in the cont ext of Article XX of the 
GATT 1994, "a panel must assess the contribution to the legitimate objective actually achieved by the measure 
at issue." (Appellate Body Report,  US – Tuna II (Mexico) , para. 317 (referring to Appellate Body Report, China 
– Publications and Audiovisual Products , para. 252)) WT/DS384/RW • WT/DS386/RW 
 
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  for it to be able to convey meaningful information  to consumers."759 The original panel thus 
reasoned that "[u]nder a labelling regime adopted for this purpose, the fulfilment of this objective will depend on the capability of labels to convey clear and accurate information on origin."
760 
7.337.  The Appellate Body also noted the original panel's conclusion that, "[ i]n light of the origin 
definition as determined by the United States for meat products, the description of origin for 
Label B and Label C is confusing in terms of the meaning of multiple country names listed in these labels. Moreover, the possibility of interchangeably using Label B and Label C for all categories of 
meat based on commingling does not contribute in a meaningful way to providing consumers with 
accurate information on origin of meat products."
761 The original panel therefore found overall that 
the original COOL measure "[did] not fulfil the iden tified objective within the meaning of Article 2.2 
because it fails to convey meaningful origin information to consumers".762 
7.338.  Conversely, the Appellate Body considered th at "[d]espite this overall finding, a number of 
findings and observations made by the [original panel] in the course of its analysis belie this conclusion and suggest that the [original] COOL measure does contribute  to the objective of 
providing information to consumers on the countries in which the livestock from which meat is 
derived were born, raised, and slaughtered"
763: 
With respect to Label A, the Panel found that the [original] COOL measure "appears to 
fulfil the objective because the measure prohibits [meat derived from animals of non-
US origin] from carrying a Label A".764 Even with respect to Labels B and C, the Panel 
found that these labels provide at least some origin information, namely, "information on meat with regard to the possible  … origin as defined by the measure".
765 Moreover, 
the Panel found that, on the whole, the [original] COOL measure provides more 
information to consumers than was available to them prior to its enactment.766 The 
Panel also noted that the "labels required to be affixed to meat products … provide 
additional country of origin information that was not available prior to the [original] 
COOL measure" and that this "may have reduced consumer confusion that existed under the pre-COOL measure and USDA grade labelling system".
767 
7.339.  The Appellate Body recalled these findings of the original panel in its attempt to complete 
the legal analysis under Article 2.2, and interprete d them as "suggesting that the [original] COOL 
measure does contribute, at least to some degree, to providing consumers with information on origin".
768 Overall, the Appellate Body concluded that "the findings of the [original panel] and 
undisputed facts on the record indicate that the labelling requirements under the [original] COOL 
measure make some contribution to the objective of that measure", but did not consider these findings sufficient "to ascertain the degree  of contribution made by the COOL measure to such an 
objective."
769 
7.340.  A specific point addressed by the Appellate Body was the "implications of the 
[original panel's] findings for assessing the contri bution made by Label A to the objective of the 
                                               
759 Appellate Body Reports, US – COOL , para. 463 (emphasis original). 
760 Appellate Body Reports, US – COOL , para. 463 (quoting Panel Reports,  US – COOL , para. 7.695). 
761 Appellate Body Reports, US – COOL , para. 464 (quoting  Panel Reports,  US – COOL , para. 7.718). 
762 Panel Reports,  US – COOL , para. 7.719. See also Appellate Body Reports, US – COOL , para. 465. 
763 Appellate Body Reports, US – COOL , para. 466 (emphasis original). 
764 (footnote original) Panel Reports, para. 7.713. The finding of the Pane l in its entirety is as follows: 
In essence, the specific objective pursued by the United States through the COOL measure as explained above, na mely the prevention of confusion 
caused by the previous COOL regime as well as USDA grade labelling, is 
that the United States aims to prevent meat derived from animals of non-US origin from carrying a US-origin label under any circumstances. To that extent, the COOL measure appears to fulfil the objective because the measure prohibits such meat from ca rrying a Label A even though the 
same meat may still carry a USDA grade label. 
765 (footnote original) Panel Reports, para. 7.707. 
766 (footnote original) According to the Panel, the COOL measure provides " more information than under 
the previous labelling regime". (Panel Reports, para. 7.715 (emphasis original)) 
767 (footnote original) Panel Reports, para. 7.717. 
768 Appellate Body Reports, US – COOL , para. 473. 
769 Appellate Body Reports, US – COOL , para. 476. WT/DS384/RW • WT/DS386/RW 
 
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  COOL measure, both in terms of the proportion of meat sold in the United States that carries this 
label, and in terms of the clarity and accuracy of the information Label A conveys".770 In this 
connection, the Appellate Body recalled the "conside rable proportion of beef and pork [that was] 
exempted from the [original] COOL measure" and the "vast majority" of meat covered by the 
original COOL measure that would carry Label A.771 
7.341.  The Appellate Body also reviewed "multi ple examples of ways in which the labelling 
scheme prescribed by the [original] COOL measure provides unclear, imperfect, or inaccurate 
information to consumers, in particular with respect to Labels B and C".772 This included the failure 
of these labels to "deliver origin information as defined under the measure or as the consumer might understand it", and the "confusion" in cases where packages containing a single piece of meat would list multiple countries on the label.
773 
7.342.  The Appellate Body also cited the original panel's doubt that "differentiation of origin based 
on the order of country names will indeed communicate accurate origin information".774 Further, as 
a result of the commingling flexibilities, the Appellate Body noted the original panel's finding that 
"not even a 'perfect consumer who is fully informed  of the meaning of different categories of labels 
under the [original] COOL measure' could ever 'b e assured that the label precisely reflects the 
origin of meat as defined under  the [original] COOL measure'".775 
7.6.2.3.2  Scope of review of the amende d COOL measure's degree of contribution 
7.343.  In addition to Labels A-C, the complainants include references to Category D muscle cuts 
and the ground meat label (Label E) in support of their Article 2.2 claims.776 In the context of 
analysing legitimate regulatory distinctions under  Article 2.1 of the TBT Agreement, we addressed 
the parties' disagreement as to which aspects of the amended COOL measure were relevant to our 
analysis.777 In that context, we noted the Appellate Body's clarification that "in answering the 
question of whether the measure gives accurate information to consumers, all distinctions drawn 
by the measure are potentially relevant. By contrast, in an analysis under Article 2.1, we only need 
to examine the distinction that accounts for the detrimental impact".778 The Appellate Body made 
this statement in relying on findings under Articl e 2.2 of the TBT Agreement to complete the legal 
analysis of "whether the measure is calibrated for the purposes of Article 2.1".779 
7.344.  In principle, Label D (muscle cuts fr om foreign-slaughtered animals) and Label E 
(ground meat) could potentially be relevant for our assessment of Article 2.2 – including for the amended COOL measure's degree of contribution – irrespective of whether these labels account for 
any detrimental impact or constitute relevant regulatory distinctions under Article 2.1. However, 
the complainants have unequivocally stated that in this compliance dispute they are not bringing claims with respect to Labels D and E.
780 As explained below781, 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. The complainants provide no indication of how the conclusions from a relational analysis based on all  distinctions of the amended COOL measure could be meaningfully 
compared to alternative measures pertaining only to Labels A-C. 
7.345.  Thus, including Labels D and E in our relational analysis under Article 2.2 would not be 
consonant with the manner in which the complainants have presented their arguments, and could prejudice a comparative analysis under the same provision. As the Appellate Body held in US – 
                                               
770 Appellate Body Reports, US – COOL , para. 474. 
771 Appellate Body Reports, US – COOL , para. 474. 
772 Appellate Body Reports, US – COOL , para. 475. 
773 Appellate Body Reports, US – COOL , para. 475 (citing  Panel Reports, US – COOL , 
paras. 7.699-7.700). 
774 Appellate Body Reports, US – COOL , para. 475 (citing Panel Reports, US – COOL , para. 7.701). 
775 Appellate Body Reports, US – COOL , para. 475 (citing Panel Reports, US – COOL , para. 7.702). 
776 See, e.g. Canada's first written submission, paras. 139-140, and second written submission, 
para. 97; Mexico's second written submission, paras. 127-128. 
777 See section 7.5.4.2.2 above. 
778 Appellate Body Report, US – Tuna II (Mexico) , para. 286. 
779 Appellate Body Report, US – Tuna II (Mexico) , para. 286. 
780 See paras. 7.48 and 7.129 above. 
781 See section 7.6.5 below. WT/DS384/RW • WT/DS386/RW 
 
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  Tuna II (Mexico) , examining alternative measures that do not align with the scope of a relational 
analysis can result in "an improper comparison"782 amounting to legal error under Article 2.2 of the 
TBT Agreement.783 Accordingly, we do not examine aspects of the measure in our relational 
analysis which the complainants do not challenge and which they exclude in their arguments under 
the comparative analysis. 
7.6.2.3.3  The amended COOL me asure's degree of contribution 
7.346.  As outlined above, the Appellate Body assessed the original COOL measure's degree of 
contribution to its objective by considering two main criteria: 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.
784 These factors are equally relevant for reviewing the degree of contribution of the 
amended COOL measure to its objective. 
7.347.  The objective of the amended COOL measure is to provide consumer information on origin. 
The proportion of muscle cuts that are actually labelled, as opposed to those that are exempted, 
is the initial determinant of the degree to which the amended COOL measure is capable of fulfilling 
its objective. This is because, logically, no origin information is conveyed on a mandatory basis for 
muscle cuts falling within in the amended C OOL measure's three exemptions. As noted, 
the amended COOL measure only covers between 33.3% and 42.3% of all beef consumed in the 
United States, and between 15.9% and 16.5% of  all pork muscle cuts. Conversely, between 
57.7% and 66.7% of all beef consumed in the Un ited States, and between 83.5% and 84.1% of all 
pork muscle cuts, are either sold in a food servic e establishment, as an ingredient in a processed 
food item, or by an entity not subj ect to be licensed as a "retailer".785 This represents a substantial 
portion of beef and pork786 for which the amended COOL measure does not contribute at all to 
providing consumer information on origin. Hence, the degree of contribution of the amended COOL 
measure for this substantial portion of products is zero.787 
7.348.  Origin information could be conveyed only on the portion of muscle cuts that is actually 
required to be labelled. Labels A-C are the labels that have been most significantly revised by the 2013 Final Rule. The introduction of point-of-production information on Labels A-C represents a 
clear improvement of the information formerly pr ovided under the original COOL measure. The 
original panel pointed out that the limited contribution of "providing general information about the various countries in which an animal ha[d] spent time and [been] slaughtered" was not in keeping with the United States' definition of "the origin  of meat based on the place where animals from 
which meat was derived were born, raised, and slaughtered".
788 As a result of the 2013 Final Rule, 
                                               
782 Appellate Body Report, US – Tuna II (Mexico) , para. 328. 
783 Appellate Body Report, US – Tuna II (Mexico) , para. 331. 
784 The Appellate Body noted in the original dispute that  "[w]hen it came to actu ally applying a standard 
of 'fulfilment' to the [original] COOL measure, th e [original p]anel noted that, as the parties agreed, 
information on the origin of products must be cl ear and accurate for it to be able to convey meaningful 
information  to consumers. Therefore, '[u]nder a labelling regime  adopted for this purpose,  the fulfilment of this 
objective will depend on the capability of labels to  convey clear and accurate information on origin'." 
Appellate Body Reports, US – COOL , para. 463 (emphasis by the Appell ate Body) (quoting Panel Reports, US – 
COOL , para. 7.695). The Appellate Body also noted that "[o]n appeal, the participants disagree as to the 
implications of the [original p]anel's findings for assessi ng the contribution made by Label A to the objective of 
the [original] COOL measure, both in terms of the proporti on of meat sold in the Unit ed States that carries this 
label, and in terms of the clarity and accuracy of the information that  Label A conveys." Appellate Body 
Reports, US – COOL , para. 474.  
785 See paras. 7.258 and 7.262 above. The parties do not indicate that these shares have changed 
under the original and the amended COOL measures. 
786 The above figures correspond to all beef consumed  in the United States, including Categories A-C, 
imported muscle cuts (Category D), and ground meat (C ategory E). In the case of pork, data provided by 
Canada and the United States show that ground po rk comprises a negligible share of total US pork 
consumption. See parties' responses to Panel question A; Exhibit US-59. Therefore, the figures provided for 
pork only relate to muscle cuts. As  regards beef, these figures are thus an indicative approximation of the 
extent to which the exemptions prevent any contribution  to the COOL objective. However, we are unable to 
determine the proportion of exempted products within Ca tegories A-C specifically. For pork, these figures more 
closely overlap with the products under review, namely those falling in Categories A-C. 
787 We recall the Appellate Body's st atement that the degree of contribu tion "may involv e an assessment 
of whether the measure at issue is capable of achieving the legitimate objective". Appellate Body Reports, US – 
COOL , footnote 928 (emphasis added). 
788 Panel Reports, US – COOL , para. 7.710. WT/DS384/RW • WT/DS386/RW 
 
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  the amended COOL measure provides consumer information that now largely corresponds to the 
measure's definition of origin by requiring labels that specify the country(ies) of birth, raising, and 
slaughter.789 
7.349.  The original COOL measure's contribution to its objective was supported by the findings 
"that Label A ensures 'meaningful information for consumers'"790 and by the exclusive reservation 
of Label A for muscle cuts solely from US-origin animals.791 The conveyance of meaningful 
information on Label A is even greater under th e amended COOL measure, which also maintains 
the exclusivity of Label A for products from animals that were exclusively  born, raised, and 
slaughtered in the United States.792 
7.350.  With respect to Labels B and C, the requirements under the original COOL measure 
evidenced a lower degree of contribution to the objective due to inter alia  the commingling and 
country order flexibilities.793 As the original panel held, "the different and complex categories of 
labels under the [original] COOL measure and th e operation of the COOL regime based on the 
commingling provisions render origin information contained in labels inaccurate and confusing."794 
We note that, under the modified requirements of the amended COOL measure, the requirement 
of point-of-production information and the removal of commingling on Labels B and C remedy many of the sources of inaccuracy found in the original dispute. 
7.351.  In particular, the amended COOL measure effectively distinguishes Labels B and C in a 
manner that was not the case under the original CO OL measure. Label B is now required to include 
the United States as a country of raising, with th e additional possibility of including other foreign 
countries of raising.
795 This appears to take care, in particular, of labelling the origin of foreign, 
and in particular Mexican, cattle also grazing in the United States before being slaughtered there. 
Label C is required to indicate the country from which livestock were imported as a country of raising. Only in the event that an animal imported for immediate slaughter also spent some 
amount of time in the United States – and depending on the interpretation of the applicable 
rules
796 – could Label C possibly include the United States as a country of raising. However, the 
evidence shows that, in practice, Category C livestock are typically of solely Canadian origin prior 
to US-slaughter. Hence, it does not appear that Label C would be likely to indicate the 
United States as a country of raising in a typical Category C scenario.797 
7.352.  In light of the above, the amended C OOL measure makes "some contribution" to the 
objective of providing consumer information on origin. For covered products, the amended COOL 
measure contributes to the relevant objective to a greater degree than the original COOL measure. 
As regards non-covered products, the amended COOL measure continues to exempt "a considerable proportion of beef and pork"
798 for which it does not contribute at all to the 
objective of providing consumer information on origin. 
7.353.  Ascertaining the amended COOL measure's precise degree of contribution requires further 
scrutiny of the information actually provided on labels for the covered products relevant to our 
analysis. On the one hand, the majority of muscle cuts that are actually labelled under the 
amended COOL measure will be eligible for Label A, which continues to provide "meaningful information for consumers"
799 in accordance with the definition of origin based on birth, raising, 
and slaughter. Muscle cuts carrying Labels B an d C will similarly provide point-of-production 
information according to rules that will likely operate to distinguish the two labels. The elimination 
                                               
789 See section 7.3.1 above and 2013 Final Rule, p. 31367. 
790 Appellate Body Reports, US – COOL , para. 473 (citing Panel Reports, US – COOL , para. 7.718). 
791 Appellate Body Reports, US – COOL , para. 473 (citing Panel Reports, US – COOL , para. 7.713). 
792 See para. 7.237 above. 
793 Appellate Body Reports, US – COOL , para. 475 (citing Panel Reports, US – COOL , 
paras. 7.701-7.702). 
794 Panel Reports, US – COOL , para. 7.715. We note that the commingling flexibility also implicated 
muscle cuts from animals of exclusivel y US-origin to the extent that Catego ry A muscle cuts were commingled 
with those from Categories B and C. 
795 See paras. 7.235-7.244 and Table 13 above. 
796 See paras. 7.103-7.110 above. 
797 See paras. and 7.245-7.254 and Table 14 above. 
798 See Appellate Body Reports, US – COOL , para. 474 and Panel Reports, US – COOL , para. 7.417. 
799 See Appellate Body Reports, US – COOL , para. 474 and Panel Reports, US – COOL , para. 7.718. WT/DS384/RW • WT/DS386/RW 
 
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  of the commingling and country order flexibilities generally remedies the original COOL measure's 
potential to provide misleading and inaccurate information through overlapping possibilities of Labels A-C.
800 
7.354.  On the other hand, the degree of contribution achieved for Labels A-C is limited to some 
extent by the potential inaccuracy and incompleteness of information with respect to the 
country(ies) of raising. As noted, under certain conditions, the amended COOL measure allows omission of non-US countries of raising from the label even though an animal may have spent a 
substantial portion of its life outside the United States and as little as 15 days inside the 
United States before slaughter.
801 This potential for inaccurate or incomplete information lowers 
the amended COOL measure's degree of contribu tion for Category B muscle cuts. Conversely, 
Category A muscle cuts have only US origin and, as explained, Category C muscle cuts would 
typically show that only the animal's slaughter occurred in the United States.802 
7.355.  As to the appearance and placement of labels, we recall that the amended COOL measure 
allows for some discretion as to how retailers convey country of origin information to consumers, 
while stipulating that flexibilities as to label placement and abbreviation "are permitted as long as 
the information can be clearly understood by consumers".803 Based on the evidence of actual 
labels submitted, we cannot draw conclusions about label accuracy from this labelling discretion 
and consequently are unable to determine its implications for the amended COOL measure's 
degree of contribution to providing consumer information on origin.804 
7.356.  In conclusion, we find 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. 
At the same time, the amended COOL measure does not make any contribution for products 
exempted from its coverage that would otherwis e carry such labels. Overall, the amended COOL 
measure thus makes a considerable but necessarily partial contribution to its objective of providing 
consumer information on origin. 
7.6.3  The amended COOL measure's trade-restrictiveness 7.357.  The parties concur
805 that trade-restrictiveness means "having a limiting effect on 
trade"806. However, they disagree how this should be assessed in the context of Article 2.2 of the 
TBT Agreement. 
7.358.  The complainants consider that trade-restrictiveness amounts to affecting the conditions of 
competition to the detriment of imported products.807 They refer808 to the original panel's approach 
and finding in this regard809, which, they point out, the Appellate Body did not modify.810 
They note that the original panel found that, due to segregation, the original COOL measure 
altered the conditions of competition to the detriment of imported livestock.811 
The complainants refer to their arguments under Article 2.1 of the TBT Agreement, and contend 
that the amended COOL measure continues to alte r, and in fact aggravates, the conditions of 
competition to the detriment of imported livestock.812 They note that in the context of Article 2.2, 
the Appellate Body relied on the original panel's analysis of detrimental impact to find that the 
                                               
800 See 7.5.4.2.4.4 above. 
801 See paras. 7.233-7.244 above. 
802 See paras. 7.245-7.254 above. 
803 2013 Final Rule, p. 31369. 
804 See paras. 7.255-7.256 above. 
805 Canada's first written submission, para. 110, and second written submission, para. 71; Mexico's first 
written submission, para. 170; and United States' first written submission, para. 154. 
806 Appellate Body Reports, US – COOL , para. 375. 
807 Canada's first written submission, para. 110. 
808 Canada's first written submission, para. 110. 
809 Panel Reports, US – COOL , para. 7.575. 
810 Appellate Body Reports, US – COOL , para. 381. 
811 Canada's first written submission, para. 122; Mexico's first written submission, para. 170. 
812 Canada's first written submission, paras. 123 and 125; Mexico's first written submission, para. 172. WT/DS384/RW • WT/DS386/RW 
 
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  original COOL measure had a "considerable degree of trade-restrictiveness"813, and assert that this 
is aggravated under the amended COOL measure.814 
7.359.  The United States concedes that th e amended COOL measure is trade restrictive.815 
However, according to the United States, trade-re strictiveness refers to the restriction of trade 
flows, not to discrimination816, which is "subject to a separate provision".817 The United States 
recalls that Articles 2.1 and 2.2 of the TBT Agreement are "separate obligation[s]", and "Article 2.2 is not a specific application of Article 2.1".
818 The United States notes that in US – Tuna II 
(Mexico) , the Appellate Body cautioned that the analysis under one Article is not dispositive of the 
other819, and determined that the challenged measure in that dispute was inconsistent with 
Article 2.1, while not inconsistent with Article 2.2.820 
7.360.  The United States adds821 that Article 2.2 was interpreted as allowing for "some trade-
restrictiveness"822, and argues that "it is impossible to square this approach with the complaining 
parties' contention that the term 'trade-restrictive' refers to discrimination" because "[i]t simply does not make sense to discuss how Article 2.2 allows for 'some' discrimination."
823 According to 
the United States, the Appellate Body noted that "w hat Article 2.2 disciplines is 'trade restrictive 
effect '".824 Accordingly, the United States contends, trade-restrictiveness should be interpreted as 
limiting market access,825 and it should be assessed in a purely quantitative analysis.826 
7.361.  Canada responds that the concept of trad e-restrictiveness under the TBT Agreement is not 
different from the same concept under the GATT 1994827, and does not require the demonstration 
of actual trade effects, as the original panel recalled.828 Canada notes that the Appellate Body 
established that the original COOL measure was trade-restrictive by referencing the Article 2.1 
findings of the original panel as demonstrating a "considerable degree of trade restrictiveness 
insofar as [the original COOL measure] ha[d] a limiting effect on the competitive opportunities for imported livestock".
829 Canada recalls that the Appellate Body added that "[t]his was confirmed by 
the Panel's analysis of the actual trade effects of the COOL measure."830 According to Canada, this 
shows that trade-restrictiveness may be expressed in qualitative terms.831 
7.362.  Mexico adds that the original panel "examined the meaning of the term 
'trade-restrictive'832, reviewed the applicable GATT and WTO jurisprudence833, and concluded 
(i) that 'the scope of the term 'trade-restrictive' is broad'834 and (ii) that the concept of 
'trade-restrictiveness' 'does not require the demonstration of any actual trade effects, as the focus 
                                               
813 Appellate Body Reports, US – COOL , para. 477. 
814 Canada's first written submission, paras. 124 and 125; Mexico's first written submission, paras. 170 
and 172. 
815 United States' first written submission, para. 143. See also United States' second written submission, 
para. 106. 
816 United States' first written submission, para. 153. 
817 United States' first written submission, para. 153. 
818 United States' first written submission, para. 156. 
819 United States' first written submission, para. 156 (citing Appellate Body Report, US – Tuna II 
(Mexico) , paras. 307-308). 
820 United States' first written submission, para. 156. 
821 United States' first written submission, para. 154. 
822 United States' first written submission, para. 154 (citing Appellate Body Report, US – Tuna II 
(Mexico) , para. 319 and Appellate Body Reports, US – COOL , para. 375). 
823 United States' first written submission, para. 154. See also United States' second written submission, 
para. 107. 
824 United States' first written submission, para. 155 (emphasis added). 
825 United States' first written submission, para. 155. 
826 United States' first written submission, para. 184. 
827 Canada's second written submission, para. 72. 
828 Canada's second written submissi on, para. 72 (citing Panel Reports, US – COOL , para. 7.572). 
829 Canada's second written submission, pa ra. 73 (citing Appellate Body Reports, US – COOL , 
para. 477). 
830 Canada's second written submission, pa ra. 73 (citing Appellate Body Reports, US – COOL , para. 477 
(emphasis added by Canada)). 
831 Canada's second written submission, para. 74. 
832 (footnote original) Panel Reports, US – COOL , paras. 7.566-7.568. 
833 (footnote original) Panel Reports, US – COOL , paras. 7.569-7.572. 
834 (footnote original) Panel Reports, US – COOL , para. 7.572. WT/DS384/RW • WT/DS386/RW 
 
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  is on the competitive opportunities available to imported products'835."836 Mexico recalls that 
"[t]he [original p]anel's ultimate conclusion that the COOL measure is 'trade-restrictive' within the meaning of Article 2.2 by affecting the competitive conditions of imported livestock was accepted by the Appellate Body
837."838 Quoting the Appellate Body's relevant findings839, Mexico argues that 
"[t]he Appellate Body has clearly stated that the [original p]anel's finding in the original 
proceedings that the COOL Measure denied equal competitive opportunities was sufficient to establish a 'considerable degree of trade-restrictiveness insofar as it has a limiting effect on the 
competitive opportunities for imported livestock.'
840"841 Mexico adds that it has demonstrated the 
trade-restrictiveness of the amended COOL measur e by showing evidence similar to that taken 
into account by the Appellate Body.842 
7.363.  As the parties note, the Appellate Body summarized the legal test of trade-restrictiveness 
under Article 2.2 of the TBT Agreement as follows843: 
By its terms, Article 2.2 requires an  assessment of the necessity of the 
trade-restrictiveness of the measure at issu e. In this regard, the Appellate Body in US 
– Tuna II (Mexico)  defined "trade-restrictive" to mean "having a limiting effect on 
trade".844 Moreover, it found that the reference in Article 2.2 to "unnecessary 
obstacles" implies that "some" trade-restrictiveness is allowed and, further, that what 
is actually prohibited are those 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".
845 
7.364.  In attempting to complete its Article 2.2 analysis in the original dispute, the Appellate Body 
noted the original panel's "finding that the COOL measure is '"trade-restrictive" within the meaning 
of Article 2.2 by affecting the competitive conditions of imported livestock'."846 The Appellate Body 
also noted the original panel's distinction between the focus on competitive opportunities and 
actual trade effects: "the scope of the term 'trade-restrictive' is broad and 'does not require the 
demonstration of any actual trade effects, as the focus is on the competitive opportunities 
available to imported products'."847 
7.365.  The Appellate Body then recalled848 the original panel's main findings under Article 2.1 with 
regard to changes to the "conditions of competition" between US and foreign livestock resulting from the original COOL measure.
849 In particular, the Appellate Body noted that the original panel 
had "found that 'by imposing higher segregation costs on imported livestock", the original COOL 
measure negatively affects the conditions of competition of imported livestock vis-à-vis like 
domestic livestock in the US market.'850"851 
7.366.  Based on this summary of the original pa nel's main Article 2.1 findings on changes to 
competitive conditions, the Appellate Body established that the original COOL measure was trade-
restrictive within the meaning of Article 2.2. Th e Appellate Body further determined the original 
COOL measure's degree of trade-restrictiveness: 
                                               
835 (footnote original) Panel Reports, US – COOL , para. 7.572. 
836 Mexico's second written submission, para. 102. 
837 (footnote original) A ppellate Body Reports, US – COOL , paras. 477 and 479. 
838 Mexico's second written submission, para. 102. 
839 Appellate Body Reports, US – COOL , para. 477, footnote 981. 
840 (footnote original) A ppellate Body Reports, US – COOL , paras. 477 and 479. 
841 Mexico's second written submission, para. 103 (citing Appellate Body Reports, US – COOL , 
paras. 477 and 479). 
842 Mexico's second written submission, para. 104. 
843 Appellate Body Reports, US – COOL , para. 375. 
844 (footnote original) A ppellate Body Report,  US – Tuna II (Mexico) , para. 319. 
845 (footnote original) A ppellate Body Report,  US – Tuna II (Mexico) , para. 319. 
846 Appellate Body Reports, US – COOL , para. 477 (footnote omitted). 
847 Appellate Body Reports, US – COOL , para. 477 (footnotes omitted). 
848 Appellate Body Reports, US – COOL , para. 477. 
849 (footnote original) Panel Reports, US – COOL, para. 7.387. 
850 (footnote original) Panel Reports, US – COOL , para. 7.574. 
851 Appellate Body Reports, US – COOL , para. 477. WT/DS384/RW • WT/DS386/RW 
 
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  [A]lthough the Panel declined to make a find ing "on the level of trade-restrictiveness" 
of the COOL measure, its findings suggest it considered the measure to have a considerable degree of trade-restrictiveness  insofar as it has a limiting effect on the 
competitive opportunities for imported livestock as compared to the situation prior to 
the enactment of the COOL measure .
852 
7.367.  As the complainants point out, it is only after having reached this conclusion that the 
Appellate Body referenced the original panel's finding on actual trade effects, stating that "[t]his 
was confirmed by the [original p]anel's analys is of the actual trade effects of the COOL 
measure."853 
7.368.  In light of the findings in the original dispute, we are unable to accept the argument that 
trade-restrictiveness under Article 2.2 is limited to actual and quantifiable effects on trade or 
market access. Instead, following the Appella te Body's approach, we review the trade-
restrictiveness of the amended COOL measure by relying on our findings under Article 2.1 concerning the amended COOL measure's detrimental impact on the competitive conditions for 
imported livestock. 
7.369.  As noted, the United States also accepts that the amended COOL measure is trade 
restrictive.
854 We have found that the amended COOL measure increases the detrimental impact 
on the competitive opportunities of imported livesto ck as compared to the original COOL measure. 
We have concluded that this is corroborated by witness statements, and that it is also confirmed to some extent by economic and econometric eviden ce submitted by Canada on the actual trade 
effects of the amended COOL measure. 
7.370.  Given the increased detrimental impact on the competitive opportunities of imported 
livestock, we conclude that the amended COOL measure has increased the "considerable degree of trade-restrictiveness" found by the A ppellate Body in the original dispute.
855 We recall, however, 
that although a labelling scheme may entail some  degree of trade-restrictiveness, the trade-
restrictiveness of a challenged measure constitutes only one factor of the legal test, and does not alone amount to a violation of Article 2.2 of the TBT Agreement.
856 
7.6.4  Risks of non-fulfilment of th e amended COOL measure's objective 
7.371.  In assessing whether a technical regulation is "more trade-restrictive than necessary to 
fulfil a legitimate objective", Article 2.2 of the TBT Agreement mandates taking into account "the risks non-fulfilment [of a legitimate objective] would create." According to the Appellate Body, 
this is a "further element of weighing and balancing"
857 under Article 2.2. 
7.372.  We have found that the objective of th e amended COOL measure remains the provision of 
consumer information on origin858, and that this is a legitimate objective.859 
7.373.  Both Canada and Mexico argue that the risks of non-fulfilment of the amended COOL 
measure's objective are low860, partly  as a result of what the complainants allege is US consumers' 
lack of interest in country of origin information and due to their unwillingness to pay for the 
information.861 The United States counters that US consumer interest in country of origin labelling 
                                               
852 Appellate Body Reports, US – COOL , para. 477 (footnotes omitted, emphasis added). 
853 Appellate Body Reports, US – COOL , para. 477 (footnote omitted). 
854 United States' first written submission, para. 143. See also United States' second written submission, 
para. 106. 
855 See Appellate Body Reports, US – COOL , para. 477. 
856 See section 7.6.1 above. 
857 Appellate Body Reports, US – Tuna II (Mexico) , para. 321; and US – COOL , para. 377. See also 
Canada's first written submission, para. 114; Mexico's first written submission, para. 159; and United States' first written submission, para. 157. 
858 See section 7.6.2.1 above. 
859 See section 7.6.2.2 above. 
860 Canada's first written submission, para. 138; Mexico's first written submission, para. 176. 
861 Canada's first written submission, paras. 141-144, response to Panel question No. 36, para. 67, and 
comments on responses to Panel question No. 36, para . 45; Mexico's first written submission, paras. 95, 175-
176, 185 and 228. WT/DS384/RW • WT/DS386/RW 
 
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  is high862, and that consumers are willing to pay for the information conveyed on labels under the 
amended COOL measure.863 
7.6.4.1  Legal test and relevant factors 7.374.  According to the Appellate Body, reviewing "the risks non-fulfilment [of a legitimate 
objective] would create" entails assessing "the nature of the risks at issue and the gravity of the 
consequences that would arise from non-fulfilment of the legitimate objective".
864 
7.375.  Article 2.2 provides that "[i]n assessing … risks, relevant elements of consideration are 
inter alia : available scientific and technical information, relayed processing technology or intended 
end uses of products." The complainants' relevant arguments and evidence address only what could be considered technical information relating to consumer interest in, and willingness to pay for, origin information. In the original dispute, the Appellate Body briefly 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.
865 Like the Appellate Body, we 
address these factors for the risks non-fulfilment of the amended COOL measure's objective would 
create. 
7.376.  In response to the Panel's question on th e elements for assessing the risks non-fulfilment 
of the objective would create, Mexico points out that Article 2.2 contains an illustrative list and 
that "the context of Article 2.2 (in particular, expl icit requirement for the assessment of such risks, 
indication of relevant elements for conducting the assessment) suggests that the Panel should examine whether actual  risks exist."
866 However, Mexico does not explain how an assessment of 
actual  risks should be carried out or how such assessment may differ from assessing the risks non-
fulfilment of the amended COOL measure's objectives would create. 
7.377.  Canada suggests several additional factors for assessing the risks non-fulfilment of the 
amended COOL measure's objective would create. In particular, Canada refers to "whether the 
information is provided for a broad range of products and to what extent products in a category of 
the measure are covered."867 Canada argues that "[i]n this case, while the amended COOL 
measure applies to a series of categories of produc ts, it applies to only a small proportion of beef 
and pork."868 This is an issue we have addressed in the context of legitimate regulatory distinctions 
under Article 2.1 and also in our Article 2.2 an alysis of the amended COOL measure's degree of 
contribution to its objective. Hence, we see no reason to address this factor again in the context of the risks non-fulfilment of the amended COOL measure's objectives would create. 
7.378.  Canada also suggests that we address "[w]hether the information relates to risks to 
human or animal health, safety or the environment or is provided for any other serious reasons related to the protection of the public."
869 Canada argues that "[i]n this case, none of those 
reasons applies."870 This suggested element is related to a more general argument Canada makes 
on the relative importance of values and interests protected by the measure. Relying on the necessity test of Article XX of the GATT 1994, Cana da argues that "the more important the values 
or interests underlying the objective – that is, the greater the risks and severity of the 
consequences of not achieving the objective, the more  likely it is that a restrictive measure will be 
found to be 'necessary'
871."872 Canada thus suggests that the relative importance of values or 
                                               
862 United States' response to Pa nel question No. 13, para. 26. 
863 United States' response to Panel question No. 13, paras. 28-29. 
864 Appellate Body Reports, US – Tuna II (Mexico) , para. 321; and US – COOL , para. 377. See also 
Canada's first written submission, para. 114; Mexico's first written submission, para. 159; and United States' first written submission, para. 157.  
865 Appellate Body Reports, US – COOL, para. 478. 
866 Mexico’s response to Panel ques tion No. 36 (emphasis original). 
867 Canada’s response to Panel question No. 36. 
868 Canada’s response to Panel question No. 36. 
869 Canada’s response to Panel question No. 36. 
870 Canada’s response to Panel question No. 36. 
871 (footnote original) For example, in the context of the necessity test in Article XX, the Appellate Body 
in Korea – Various Measures on Beef  stated that, "[t]he more vital or important [the] common interests or 
values are, the easier it would be to accept as 'necessary' a measure designed as an enforcement instrument." See Appellate Body Report, para. 162. WT/DS384/RW • WT/DS386/RW 
 
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  interests that it is the objective of the measure to protect is directly linked to the risks 
non-fulfilment would create under Article 2.2 of the TBT Agreement. 
7.379.  We have held that the relative importance of interests or values protected by a measure is 
not a separate factor of the Article 2.2 legal test.873 We do not exclude the possibility for overlap 
between analytical components of the legal obli gations of the TBT Agreement and the GATT 1994. 
The Appellate Body has held that "the two Agreem ents should be interpreted in a coherent and 
consistent manner."874 Ultimately, however, the text of the TBT Agreement requires us to assess 
the necessity of a technical regulation's trade-re strictiveness by "taking account of the risks non-
fulfilment would create".875 In the Appellate Body's reading, this factor of an Article 2.2 analysis is 
to be examined according to two criteria: th e nature of the risks and the gravity of the 
consequences. We need not define the precise rela tionship between the nature of risks and gravity 
of the consequences of the non-fulfilment of a le gitimate 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. We confine our analys is to the express terms of the TBT Agreement, 
as clarified by the Appellate Body, instead of defi ning the precise relationship between terms in the 
TBT Agreement and the GATT 1994. 
7.380.  Finally, Canada suggests that we assess risks according to "[w]hether the design and 
architecture of the measure consistently reflect the importance of the objective."
876 Canada argues 
that "[i]n this case, there is no logic to the proposition that consumers interested in origin information care less when buying ground meat, or  when buying meat in restaurants, in butcher 
shops or in the form of processed food."
877 We note 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. Further, we consider 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.
878 To the extent that Canada's suggestion concerns the relative 
importance of the amended COOL measure's objective,  we have explained the legal test that it is 
our task to apply to the complainants' Article 2.2 claims, including as regards the risks non-
fulfilment would create. 
7.381.  In light of the above, we review the ri sks non-fulfilment of the amended COOL measure's 
objective would create by assessing the nature of the risks and the gravity of the consequences. 
We do this by assessing consumer interest in, and willingness to pay for, country of origin 
information, in accordance with the Appellate Body's approach in the original dispute. 
7.382.  The parties argue that each other's evidence on consumer interest and willingness to pay 
is either irrelevant879, or biased880 and of dubious scientific value.881 As the Appellate Body 
explained, Article 11 of the DSU requires a panel to "consider all the evidence presented to it, 
assess its credibility, determine its weight, and ensure that its factual findings have a proper basis 
                                                                                                                                               
872 Canada's first written submission, para. 116. 
873 See section 7.6.1.3 above. 
874 Appellate Body Report, US – Clove Cigarettes , para. 91. 
875 See para. 7.310 above. Mexico itself argues th at Article 2.2 of the TBT Agreement differs from 
Article XX of the GATT 1994 by virtue of its reference to the "risks that non-fulfilment [of the objective] would create". 
876 Canada’s response to Panel question No. 36. 
877 Canada’s response to Panel question No. 36. 
878 See sections 7.5.4.2 and 7.6.2.3 above. 
879 See Mexico's response to Panel question No. 15, para. 15; Mexico's comments on responses to Panel 
question No. 13, paras. 14-16; and the United States' response to Panel questions No. 13, para. 28 and No. 
15, para. 36. 
880 Canada's comments on responses to Panel questi on No. 15, para. 8; Mexi co's response to Panel 
question No. 15, para. 18, and commen ts on responses to Panel question No. 13, para. 13; and United States' 
comments on responses to Panel question No. 15, para. 29. 
881 Mexico's comments on responses to Pa nel question No. 13, paras. 17 and 20. WT/DS384/RW • WT/DS386/RW 
 
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  in that evidence."882 We are also mindful that we "are not required to accord to factual evidence of 
the parties the same meaning and weight as do the parties."883 
7.383.  Accordingly, we carry out a critical assessm ent of the evidence submitted by the parties on 
consumers' interest in, and willingness to pay for, country of origin information. As we consider 
that these are two facets of consumer demand for origin information, we assess them separately. 
In light of the parties' arguments and for the sake of completeness, we address the parties' evidence both in terms of general country of origin information and in terms of point-of-production 
origin information according to the country of birth, raising, and slaughter.
884 
7.6.4.2  Consumer interest 7.6.4.2.1  Consumer interest in ge neral country of origin information 
7.384.  The complainants submit various studies in support of their argument that US consumers 
do not have an interest in country of origin information.
885 
7.6.4.2.1.1  Summary KSU Stud y Fact Sheet and KSU studies 
7.385.  The complainants contend that mandatory country of origin labelling has not brought about 
any identifiable changes to consumer demand for the products subject to the disputed labelling 
rules relative to the products exempt from labelling.886 Canada submits an article, the summary 
KSU Study Fact Sheet, which summarizes the first known post-implementation assessment of how 
consumer demand has been influenced by mandatory country of origin labelling rules in the 
United States.887 The methodology of the KSU Study Fact Sheet and the underlying assessments 
are contained in two separate studies, KSU Revealed Demand888 and KSU Consumer Valuation, 
each submitted by both complainants.889 According to the KSU Revealed Demand study, relative 
demand for covered meat products has not change d following the implementation of the original 
COOL measure.890 According to the KSU Study Fact Sh eet, the KSU Consumer Valuation study 
shows that US consumers are unaware of the measure and do not look for meat origin 
information.891 
7.386.  We are not persuaded of the relevance of the two KSU studies and the summary KSU 
Study Fact Sheet for our findings on consumer de mand for general country of origin information. 
7.387.  As regards the KSU Revealed Demand stud y, it demonstrates unchanged relative demand 
for the products covered by the original COOL measure. However, we are unable to conclude from this study that this unchanged demand is necessarily  attributable to a lack of interest in the type 
of information mandated by the original COOL me asure. There could be various reasons for which 
relative demand for the covered and exempted products has remained steady. For example, 
consumers might have found the labels confusing
892, and demand for both the covered and 
                                               
882 Appellate Body Reports, US – Tuna II (Mexico) , para. 254; Philippines – Distilled Spirits , para. 135; 
Brazil – Retreaded Tyres , para. 185; and EC – Hormones , paras. 132-133. 
883 Appellate Body Report, Australia – Salmon , para. 267. 
884 In fact, despite finding that the objective of the original COOL measure was the provision of 
consumer information on origin, in reviewing the ri sks non-fulfilment would create the Appellate Body 
referenced both "count ry of origin labelling of beef and pork" in  general, and specific "information on the 
countries of birth, raising, and slaughte r of livestock". Appellate Body Reports, US – COOL , para. 478. 
885 Exhibits CDA-84, CDA-85, CDA-154, and MEX-34.  
886 Canada's first written submission, para. 143; Mexico's first written submission, para. 176; 
Exhibits CDA-82, CDA-83, MEX-35, MEX-36, and MEX-62. 
887 Exhibit CDA-82. 
888 Exhibits CDA-83, MEX-35, and MEX-62. 
889 Exhibits CDA-84 and MEX-34.  
890 Exhibits CDA-83, MEX-35, and MEX-62. 
891 Exhibit CDA-82, p. 2. 
892 In fact, this was what Canada and Mexico clai med in the original dispute. See Panel Reports, US – 
COOL, paras. 7.653, 7.655-7.658, 7.660, and 7.676. In US – COOL  the Appellate Body observed that "with 
respect to meat bearing Labels B and C, however, any contribution made [t o the fulfilment of the original COOL 
measure's legitimate objective] is much more limited because the information may be confusing and inaccurate". Appellate Body Reports, US – COOL , para. 476. See also Canada's first written submission, 
paras. 77 and 151; and Mexico's first written submission, para. 176. WT/DS384/RW • WT/DS386/RW 
 
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  exempted products might be inelastic for reasons unrelated to the measure, such as consumer 
preferences for specific types of meat or ot her foodstuffs. As the United States notes, 
the complainants "fail to explain how a change in a consumer's purchasing patterns is probative of consumer demand for the provision of certain information, which only constitutes one element of 
decision making."
893 
7.388.  The KSU Revealed Demand study concludes that there is a net economic welfare loss 
because of the combined effect of steady dema nd for the covered products and labelling costs.894 
We have not been persuaded that there is a dire ct link between this conclusion and consumer 
interest in general country of origin information. The KSU Revealed Demand study relies on grocery-store sales data for the covered products and a number of other products over a period of time. This, however, has no direct bearing on whether consumers buying the covered products 
have experienced an increase in welfare as a result of country of origin information. Indeed, as the 
USDA explains, even if "the economic benefits fr om the COOL requirements are positive", they are 
"difficult to quantify".
895 The KSU Revealed Demand study addresses net economic welfare for 
producers  and consumers in terms of variables that do not capture specific consumer  welfare, let 
alone consumer interest in country of origin information. 
7.389.  Turning to the KSU Consumer Valuation survey, it finds that US consumers are largely 
unaware of the original COOL measure and its legal status.896 The complainants reference this as 
further demonstration of consumers' low interest in country of origin labelling.897 However, this 
assumes that consumer awareness of a given measure is a reliable proxy for consumer interest in the objective of that measure. Absent substantiation of such an assumption, we question the 
relevance of US consumers' awareness of the amended COOL measure for our consideration of 
consumer interest in general country of origin information. 
7.390.  Finally, according to the summary KSU Stud y Fact Sheet, a typical US consumer does not 
look for meat origin information.
898 A s  f a r  a s  w e  c a n  t e l l  f r o m  t h e  K S U  S t u d y  F a c t  S h e e t ,  t h i s  
conclusion is based on in-person surveys and experiments that were conducted in grocery stores in Texas in 2012. The results seem to have been reported in a working paper from 2012, 
referenced in the KSU Study Fact Sheet as "Klain et al, 2012". However, this working paper has 
not been submitted by any of the parties. Having reviewed the underlying studies before us for the KSU Study Fact Sheet (i.e. the KSU Revealed De mand and KSU Consumer Valuation studies), we 
find no specific, detailed explanation for the KSU Study Fact Sheet's conclusion. 
7.6.4.2.1.2  Studies on food values 
7.391.  Canada submits a study pertaining to US consumers' preferred food values
899 in support of 
its argument that origin information is among the least important food values for US consumers.900 
As regards its methodology, the survey acknowledges that it involved a small and not necessarily 
fully representative sample of US consumers.901 The consumers consulted were not asked 
questions about meat in particular, but about food in general.902 As borne out by the evidence put 
forth by the United States in the context of willingness to pay, "the value of country-of-origin 
information is product specific even within a product category (e.g. meat)."903 Based on the 
                                               
893 United States' comments on responses to Panel qu estion No. 13. The same reservations apply to a 
study submitted by Mexico with regard  to demand for shrimp, which, like KSU Revealed Demand study, shows 
no change in demand for shrimp following the origin al COOL measure's entry into force. Exhibit MEX-36. 
894 Exhibits CDA-83 and MEX-62, p. 245. See also Exhibit MEX-35. 
895 2009 Final Rule, p. 15647. 
896 Exhibits CDA-84 and MEX-34, p. 14. 
897 Canada's first written submission, para. 143; Mexico's first written submission, para. 176. 
898 Canada's first written submission, para. 143 (citing Exhibit CDA-82, p. 2). 
899 Exhibit CDA-85. 
900 Canada's first written submission, para. 144. 
901 Exhibit CDA-85. Only 220 individuals out of the two thousand households asked responded, of which 
176 were used for the analysis. The profile of the re spondents was 65% male, 61% had a college degree and 
the average age was 56 years whereas the average income was US$ 74,000. It is stated that "work such as that presented here should be repeated with a larger and more representative samp le of consumers", and the 
study's sample is characterised as "somewhat small". Exhibit CDA-85, pp. 193-194. 
902 See Exhibit CDA-85, p. 191: "previous studies dealt specifically with beef steaks, whereas our study 
deals with food in general". 
903 Exhibit US-52, p. 22 (emphasis original). WT/DS384/RW • WT/DS386/RW 
 
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  evidence before us, we have no reason to consid er that consumer interest in general country of 
origin information would not be similarly product specific. 
7.392.  Canada also submitted a working paper applying a similar methodology as the 
aforementioned study that relates specifically to meat, as well as other products.904 This working 
paper involved a larger, more representative sample of consumers who were asked specifically 
about food values in relation to ground beef, beef steak, chicken breast, and milk.905 The working 
paper concludes that, compared to other food values, such as food safety, consumers do not value 
origin highly. 
7.393.  The questions posed in the working paper referenced origin as follows: "the extent to 
which the locations and identities of producers and processors are known".906 We are not inclined 
to rely on this evidence as proof of consumer general interest in covered products' country of 
origin, given that origin has been referenced very differently from its definition in the original and 
amended COOL measures. For us, it cannot be ex cluded that consumers might have answered 
differently had origin been defined more consistently with the original or amended COOL 
measures. 
7.394.  In any event, any relevance of the re sults of the above-mentioned study and working 
paper submitted by Canada on food values is at most indirect for our purposes. Both documents 
were designed in a way that enquired about food origin in relation to other values.907 That 
consumers may value origin less than other values does not necessarily speak to the absolute value consumers attach to origin. 
7.6.4.2.1.3  Letters and opinion polls submitted by the United States 
7.395.  The United States submits evidence in th e form of letters of support from individuals, 
consumer groups, and associations, and opinion polls conducted domestically, with a view to 
demonstrating that there is considerable consumer interest in country of origin labelling in 
general.
908 
7.396.  Much of this evidence was also submitte d by the United States in the original dispute.909 
In the context of reviewing the original COOL measure's objective, the original panel observed that 
the evidence "generally refers to comments made during the legislative process, hence it may not 
necessarily prove … consumer demand calling for the pursuit of the stated objective".910 
Assessing the risks non-fulfilment of the amended COOL measure's objective would create, the Appellate Body held that the original panel ha d thus "cast doubt" on the probative value of the 
evidence that the United States adduced to demonstrate consumer interest.
911 The same might 
apply to a significant proportion of the letters and polls submitted by the United States in this compliance dispute. 
                                               
904 Exhibit CDA-154. 
905 Exhibit CDA-154, p. 5. 
906 Exhibit CDA-154, Table 1. It is also stated that " Origin/Traceability  is more encompassing than 
simply Origin  and can incorporate preferences for a country of origin, for locally produced food, and/or for a 
well-documented supply chain." Exhibit CDA-154, p. 5 (emphasis original). 
907 Exhibit CDA-85, p. 191: "The importance of each food value was estimated relative to origin". 
908 United States' response to Panel question No. 13, paras. 25-27, and Exhibits US-48, US-68, US-69, 
US-70, and US-71. 
909 Exhibits US-68, US-69, US-70, and US-71 were submitted as Exhibits US-117, US-5, US-116, and 
US-123 respectively in the original dispute. Exhibit US -48, presenting the results of a telephone survey from 
2010, was not submitted in the original dispute. 
910 Panel Reports, US – COOL, para. 7.647. 
911 Appellate Body Reports, US – COOL, para. 450. WT/DS384/RW • WT/DS386/RW 
 
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  7.397.  The relevant piece of US evidence before this compliance Panel, but not the original panel, 
is an opinion poll based on telephone interviews conducted in October 2010. The poll was based on responses from 1014 individuals to the following question: 
Suppose a cow is born and raised in Mexico, and then sent to the U.S. to be fattened 
for two months, slaughtered and sold. If you saw the meat from this animal in your 
supermarket, which of the following labels would you prefer it to have? 
 Product of U.S. and Mexico 
 Product of Mexico 
 Product of U.S. 
 Other (specify) 
 Don't know
912 
7.398.  The poll concludes that "[n]early half (47%) of consumers said they prefer comprehensive 
labeling – the label for meat from an animal raised both in the U.S. and Mexico should reflect the animal's complete history."
913 
7.399.  We note that the poll, in particular the question and the possible categories of responses, 
assumes that consumers would like some form of origin labelling. In fact, the poll does not explicitly ask whether or not consumers would like to have meat carry labels with origin 
information. Rather, the question focuses on what kind of information should be shown on the 
label. Accordingly, we cannot assume that 47% of  the consumers consulted, let alone 47% of all 
US consumers, would actually be interested in having a meat label with country of origin information. This poll – together with the other letters and poll submitted by the United States – 
only suggests that there is some consumer interest in country of origin information in general. 
7.6.4.2.2  Consumer interest in po int-of-production origin information 
7.400.  The complainants submit no evidence pert aining in particular to consumer interest in 
point-of-production information on the animal's place of birth, raising, and slaughter. 
7.401.  The above-mentioned studies invoked by the complainants
914 do not contain any findings 
with regard to labelling specifically in accord ance with the requirements of the amended COOL 
measure, which, as explained earlier915, differ from the original COOL measure as regards point-of-
production information. 
7.402.  For instance, consumers responding to the KSU Consumer Valuation study had to choose 
between three distinct labels: "Product of United States", "Product of Canada, Mexico and US", and 
"Product of North America". None of the three la bels makes any reference to the animal's country 
of birth, raising, and slaughter. Similarly, the su rvey on demand for shrimp that Mexico submits is 
not concerned with labels containing information on the country of birth, raising, and 
slaughter/harvest information.916 
7.403.  Likewise, the KSU Revealed Demand study relies on grocery-store sales data collected 
from 2007 until 2011, that is to say two years be fore and after the entry into force of the 
2009 Final Rule.917 A s  t h e  s t a g n a t i o n  i n  d e m a n d  o b s e r v e d  b y  t h e  s t u d y  i s  r e l e v a n t  o n l y  t o  t h e  
period of time when the original COOL measure was in force, it does not show how demand might be impacted by information on the animal's country of birth, raising, and slaughter. 
                                               
912 Exhibit US-48, p. 3. 
913 Exhibit US-48, p. 3. 
914 Exhibits CDA-82, CDA-83, CDA-84, MEX-34, MEX-35, MEX-36, and MEX-62. 
915 See section 7.3.1 above. 
916 Exhibit MEX-36. 
917 Exhibits CDA-83 and MEX-62, p. 237. See also Exhibit MEX-35. WT/DS384/RW • WT/DS386/RW 
 
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  7.404.  The United States submits various pieces of evidence pertaining specifically to consumer 
interest in information on the animal's place of birth, raising, and slaughter.918 S o m e  o f  t h e  
United States' relevant exhibits had been submitted in the original dispute.919 Most are letters of 
support from individual consumers and consumer groups and organizations, as well as comments 
on the legislative proposal for country of origin labelling.920 In this regard, we recall that the 
original panel had "cast doubt" on the probative value of this evidence, as noted and relied upon by the Appellate Body.
921 
7.405.  The United States also submits a press release from an association of consumer 
organizations reporting the results of a telephone survey undertaken in 2013.922 Two questions in 
the survey enquired about 1000 US individuals' interest in country of origin labels showing the animal's country(ies) of birth, raising, and slau ghter. The press release concludes that "a large 
majority of Americans continue to strongly support mandatory country of origin labeling for fresh 
meat and strongly favor requiring meat to be labeled with even more specific information about where the animals were born, raised and processed."
923 Conversely, Mexico points out that this 
press release was issued right before the finalization of the amended COOL measure, and argues 
that the survey was commissioned and designed to support the trade association's political 
position.924 
7.406.  We note that the press release makes extensive reference to the USDA's regulatory 
process leading towards the finalization of the am ended COOL measure. Further, the press release 
explicitly references a letter addressed to the USDA in support of its proposed regulatory changes following the original dispute. 
7.407.  We recall the Appellate Body's above-mentioned caution with respect to the relevance of 
letters and polls submitted in the original COOL le gislative process. The press release submitted by 
the United States may similarly be regarded with caution insofar as it may be connected to a 
particular interest expressed in the regulatory process leading to the adoption of the amended 
COOL measure. On balance, we read this press release and its survey as showing that there is 
some consumer interest in country of origin information according to point-of-production. 
However, we are unable to find this press release and survey dispositive of the actual degree of 
consumer interest in such information. 
7.6.4.3  Consumers' willingness to pay 7.6.4.3.1  Consumers' willingness to pay fo r general country of origin information 
7.408.  The complainants claim that the evidence they  submit in relation to risks of non-fulfilment 
demonstrates not only consumers' lack of interest in origin information, but also that consumers are not willing to pay to obtain the information.
925 
7.409.  The complainants submit one piece of ev idence that addresses consumer willingness to 
pay for country of origin information in general. Based on the KSU Consumer Valuation study926, 
the complainants argue that consumers' unwillingness to pay for country of origin information is 
revealed by US consumers valuing products labelled "Product of North America" approximately the 
same as those labelled "Product of United States".927 
                                               
918 Exhibits US-46, US-47, US-72, US-73, and US-74.  
919 Exhibits US-72, US-73, and US-74 were submitted as Exhibits US-124, US-125, and US-115 
respectively in the original disput e. Exhibits US-46 and US-47 are subm itted for the first time in this 
compliance dispute. 
920 Exhibits US-47, US-72, US-73, and US-74. 
921 See para. 7.395 above 
922 Exhibit US-46. 
923 Exhibit US-46. 
924 Mexico's response to Panel question No. 15. 
925 Exhibits CDA-83, CDA-84, MEX-35, and MEX-62. Canada's comments to responses to Panel question 
No. 36, para. 45; Mexico's comments to responses to Panel question No. 13, paras. 18-19. 
926 Exhibits CDA-84 and MEX-34. 
927 Canada's first written submission, para. 143; Mexico's first written submission, para. 176. WT/DS384/RW • WT/DS386/RW 
 
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  7.410.  The KSU Consumer Valuation study conclude s that consumers would be willing to pay on 
average a premium of USD 1.77 per 12 ounces of meat products for the label "Product of United States", and USD 1.88 per 12 ounces of meat products for the label "Product of North America".
928 Despite the higher premium for the North American label, we read this as showing 
that consumers are indeed willing to pay something for origin information – whether country-
specific or not. At the same time, the KSU Consumer Valuation study indicates that consumer willingness to pay has not increased. In the words of the KSU Consumer Valuation study, 
"[t]he magnitudes of these [willingness to pay] values are similar to, or less than, those identified 
in previous studies" prepared in 2007 and 2009.
929 
7.411.  The United States submits an Australian report on country of origin labelling that presents 
the results of a literature review, including on US consumers' willingness to pay for country of 
origin labelling.930 According to the United States, the studies presented in this literature review 
demonstrate that US consumers are willing to pay a premium for country of origin labelling.931 
7.412.  We note that some of the studies presente d in the Australian report are the same as those 
that were discussed in an academic paper submitted in the original dispute with regard to 
consumer willingness to pay.932 In the original dispute, based on the original panel's findings, the 
Appellate Body held that "most US consumers are not prepared to pay to receive information on 
origin as defined in the [original] COOL measure with respect to the meat products they 
purchase."933 Also, as the Australian report acknowledges, estimating consumer willingness to pay 
is "arduous" because origin is a complex attribute and estimates can be influenced by experimental or study design factors.
934 Accordingly, we are similarly doubtful of the probative 
value of the Australian report submitted by the United States in regard to consumers' willingness 
to pay. 
7.6.4.3.2  Consumers' willingness to pay fo r point-of-production origin information 
7.413.  The parties' limited evidence concerning  willingness to pay does not address consumers' 
willingness to pay for origin information specifically according to point-of-production information. 
7.414.  As noted, the KSU Consumer Valuation study examines consumers' willingness to pay for 
meat carrying labels without any point-of-production origin information. The Australian report 
submitted by the United States is a literature review, which does not explain in detail the methodologies of the referenced studies. From what can be deduced from the review, relevant 
studies asked consumers about the premium, if any, they would be willing to pay for labels such as 
"Certified U.S." and "U.S.A. Guaranteed".
935 Again, these labels do not convey point-of-production 
information. 
7.6.4.4  Conclusions on risks of non-fulfilm ent of the amended COOL measure's objective 
7.415.  In the original dispute, the Appellate Bo dy addressed the risk of non-fulfilment of the 
original COOL measure's objective, concluding that "[o]verall, … the [original p]anel's factual findings suggest that … the consequences that may arise from non-fulfilment of the objective 
would not be particularly grave."
936 The Appellate Body reached this conclusion in light of the 
original panel's doubts about on the probative value of evidence presented to show consumer 
interest and US consumers' unwillingness to bear all the costs of country of origin labelling of beef 
and pork.937 
                                               
928 Exhibits CDA-84 and MEX-34, p. 6. 
929 Exhibits CDA-84 and MEX-34, pp. 6 and 9. In particular, the KSU Cons umer Valuation study refers to 
studies by Loureiro and Umberger (2007), and Gao and Schroeder (2009). 
930 United States' response to Pa nel question No. 13, para. 28 and footnote 29; and Exhibit US-52, 
pp. 20-22. 
931 United States' response to Pa nel question No. 13, para. 28. 
932 Exhibit US-87 in the original dispute. 
933 Appellate Body Reports, US – COOL , para. 478. 
934 Exhibit US-52, p. 18. 
935 Exhibit US-52, pp. 20-21. 
936 Appellate Body Reports,  US – COOL,  para. 479. 
937 Appellate Body Reports, US – COOL , para. 478. WT/DS384/RW • WT/DS386/RW 
 
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  7.416.  We recall that, similarly to the original panel, we have found that consumers are not ready 
to bear all the costs of the amended COOL measur e. However, unlike the original panel, we have 
found in this compliance dispute that consumers are interested both in country of origin information in general and in country of origin information according to point-of-production. 
We have also found that consumers show some willingness to pay for general country of origin 
information. At the same time, we have not been given probative evidence showing consumer willingness to pay for country of origin information according to point-of-production. 
7.417.  Accordingly, we find that there is some risk associated with the non-fulfilment of the 
amended COOL measure's legitimate objective. In te rms of the nature of this risk, we observe that 
the risk is related to the objective of the amen ded COOL measure, which is to provide consumer 
information on origin. The consequence that would arise from non-fulfilment of the amended COOL 
measure's objective is that consumers would not receive meaningful information on the origin of 
the covered products. In other words, consum ers would be misinformed, confused, or not 
informed at all. 
7.418.  As regards the gravity of this specific consequence, we consider consumer demand for 
origin information as a relevant indicator. In this regard, we recall that the evidence on the record does not allow us to determine the strength of consumer interest in either general country of 
origin information or country of origin information according to point-of-production. 
As for willingness to pay, the KSU Consumer Valuation study addresses the premium consumers would be ready to pay for labels showing general information on country of origin. However, as noted, this study does not show any increase in consumer willingness to pay for country of origin 
information from previous studies pre-dating the original COOL measure.
938 Further, while the 
study 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 
objective to provide consumer information. 
7.419.  The benefits accruing to consumers from receiving origin information may also be 
determinant of consumer demand for such inform ation. By the same logic, the benefits that 
consumers would forego in the absence of meaningful origin information are relevant for the gravity of the consequences of such an eventuality. 
7.420.  The USDA attempted to evaluate the "economic benefits" of the original and amended 
COOL measures. For the original COOL measure, the USDA concluded that "the economic benefits 
will be small and will accrue mainly to those consumers who desire country of origin information."
939 The USDA added that "[t]he expected be nefits from implementation of th[e 2009 
Final R]ule are difficult to quantify."940 The USDA reached similar conclusions for the 
2013 Final Rule by stating that "the expected benefits from implementing mandatory COOL requirements remain difficult to quantify and that  the incremental economic benefits of this final 
rule will be comparatively small relative to th ose afforded by the current COOL requirements."
941 
Thus, even the USDA was unable to ascertain the benefits to consumers based on their "desire [for] country of origin information."
942 
7.421.  The original panel "acknowledge[d] that Members have certain policy space in determining 
their objectives": 
There are … circumstances in which Members may decide to adopt particular 
regulations even in the absence of a specific demand from their citizens, and may do 
so without in fact shaping consumer expectations through regulatory intervention. 
We also note the panel's statement in Korea – Various Measures on Beef  that "there 
can be good reasons – apart from any protectionist motives – why a WTO Member 
                                               
938 Exhibits CDA-84 and MEX-34, pp. 6-7. 
939 2009 Final Rule, p. 2683. 
940 2009 Final Rule, p. 2683. 
941 2013 Final Rule, p. 31376. 
942 2009 Final Rule, p. 2683. WT/DS384/RW • WT/DS386/RW 
 
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  might want information to be provided as to the origin of products, and particularly 
meat products, at the retail level".943 
7.422.  A Member's interest in pursuing a legitimate objective might also be relevant for 
ascertaining the gravity of the consequences of not fulfilling such objective. However, even the 
USDA found it difficult to quantify the continued "small" consumer benefits under both the original 
and amended COOL measures. 
7.423.  Accordingly, although we have found that the amended COOL measure pursues the same 
legitimate objective as the original COOL measure, based on the evidence before us in this 
compliance dispute we cannot ascertain the gravity of not fulfilling the amended COOL measure's objective. 
7.424.  We have established the nature of the risks, and the consequences, of not fulfilling the 
amended COOL measure's objective; however, we have been unable to ascertain the gravity of 
these consequences. Accordingly, we conclude our relational analysis of the amended COOL measure without drawing definitive conclusions on the complainants' Article 2.2 claims. 
7.425.  We turn to the comparison with the complainants' proposed alternative measures.
944 
7.6.5  Comparative analysis 7.426.  The complainants refer to four alternat ive measures to demonstrate that the amended 
COOL measure violates Article 2.2 of the TBT Agreement: 
a. mandatory labelling of muscle cuts based on the country of substantial transformation 
(i.e. slaughter), combined with voluntary la belling based on the country of birth and 
raising, and the elimination of the amende d COOL measure's three main exemptions; 
b. extending the mandatory 60-day inventory rule applicable to ground meat also to 
muscle cuts, combined with the elimination of the three main exemptions; 
c. mandatory labelling using a trace-back system; and 
d. mandatory state or province designation of where the three production steps took place, 
in addition to the current country designations under the COOL measure. 
7.427.  As noted above, the Appellate Body held that, for assessing consistency with Article 2.2, in 
most cases a comparison of the challenged measure and possible alternative measures should be 
undertaken. For such a comparison, "it may 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".
945 
7.428.  In attempting to complete its Article 2.2 analysis in the original dispute, the Appellate Body 
identified the "relevant" "factual elements" in  the context of an "analysis of the proposed 
alternative measures": (i) whether these alternative measures are less trade restrictive than the 
COOL measure; (ii) whether they would make an equivalent contribution to the relevant objective, taking account of the risks non-fulfilment would create; and (iii) whether they are reasonably 
available to the United States.
946 
                                               
943 Panel Reports, US – COOL , para. 7.854 (footnote omitted). 
944 See Appellate Body Reports,  US – COOL,  para. 479. 
945 Appellate Body Reports, US – COOL , para. 378 (citing Appellate Body Report, US – Tuna II (Mexico) , 
para. 322 (footnote omitted)). 
946 Appellate Body Reports,  US – COOL,  para. 481 (citing Appellate Body Report, US – Tuna II (Mexico) , 
para. 322). WT/DS384/RW • WT/DS386/RW 
 
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  7.6.5.1  Preliminary issues 
7.429.  Before reviewing the complainants' suggested alternatives, we address three preliminary 
issues: 
a. burden of proof; 
b. the United States' argument that any relevant alternative needs to be "significantly" less 
trade restrictive than the amended COOL measure; and 
c. the compliance cost that any non-discriminato ry alternative would need to exceed in 
order to be trade restrictive. 
7.6.5.1.1  Burden of proof 7.430.  The complainants argue that the burden of  proof in the context of comparing alternatives 
is limited in two ways. According to Canada, "while ascertaining the level of trade-restrictiveness 
of a technical regulation as proposed by the Unit ed States would be possible for regulations that 
have been in force long enough to produce documented trade effects, such an ascertainment may not be done with the same precision for regulations that have not yet produced measurable trade 
effects or for possible alternative measures."
947 According to Mexico, in light of the legal test under 
Article 2.2, "Mexico's burden is simply to 'identify possible alternatives'"948, and "[t]he burden is on 
the United States to present sufficient evidence  and arguments showing that these alternative 
measures are not less trade restrictive, do not make an equivalent contribution to the objective 
pursued, taking account of the risks non-fulfilment would create and are not reasonably available."
949 
7.431.  The United States counters that "[n]either approach is consistent with the admonition of 
the Appellate Body as to the burden of proof  resting on the party that asserts a claim."950 
The United States cites951 the Appellate Body's statement in US – Wool Shirts and Blouses that 
"it is a generally accepted canon of evidence in civil law, common law and, in fact, most 
jurisdictions, that the burden of proof rests up on the party, whether complaining or defending, 
who asserts the affirmative of a particular claim or defence."952 
7.432.  Turning to Mexico's argument, we recall that in the original dispute the Appellate Body 
summarized "the burden of proof under Article 2.2" as follows: 
In order to demonstrate that a technical regulation is inconsistent with Article 2.2, 
the complainant must make a prima facie  case by presenting evidence and arguments 
sufficient to establish that the challenged  measure is more trade restrictive than 
necessary to achieve the contribution it makes to the legitimate objective, taking 
account of the risks non-fulfilment would create. A complainant may, and in most 
cases will, also seek to identify a possible alternative measure that is less trade 
restrictive, makes an equivalent contribution to the relevant objective, and is 
reasonably available. It is then for th e respondent to rebut the complainant's 
prima facie case  by presenting 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, for example, by demonstrating that the alternative measure identified by the complainant is not, in fact, "reasonably available", is not less trade restrictive, or does not make an equivalent contribution to 
the achievement of the relevant legitimate objective.
953 
                                               
947 Canada's second written submission, para. 77. 
948 Mexico's second written submission, para. 115. 
949 Mexico's second written submission, para. 118. 
950 United States' second written submission, para. 95. 
951 United States' second written submission, para. 95. 
952 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
953 Appellate Body Reports, US – COOL , para. 379 (emphasis added). WT/DS384/RW • WT/DS386/RW 
 
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  7.433.  Mexico contends that the Appellate Body's us e of the term "identify" for what is required of 
complainants in terms of possible alternative measures need not go further than "identification" in terms of proposing such alternatives. We do not agree with Mexico's reading of the 
Appellate Body's explanation. The statement reli ed upon by Mexico includes three elements 
relevant for the comparison of the alternatives with the challenged measure, namely "a possible 
alternative measure that is less trade restrictive, [that] makes an equivalent contribution to the relevant objective, and is reasonably available."
954 After placing the burden in regard to these 
three factors on the complainants, the Appellate Body moves to discuss the respondent's burden of 
proof in respect of alternative measures. 
7.434.  In our view, Mexico misreads the Appellate Body's statements to suggest that the burden 
of proof shifts after the complainant has merely "identified" an alternative, without having to make 
at least a prima facie  case that such alternative "is less trade restrictive, makes an equivalent 
contribution to the relevant objective, and is reasonably available."955 Such an approach would run 
counter complainants' burden of proof in WTO disputes enunciated by the Appellate Body in US – 
Wool Shirts and Blouses  and followed consistently by panels  and the Appellate Body since then. 
H a d  t h e  A p p e l l a t e  B o d y  i n t e n d e d  t o  p r e s c r i b e  a  d i f f e r e n t  b u r d e n  o f  p r o o f  f r o m  t h a t  f o l l o w e d  i n general in WTO dispute settlement, we are confident it would have explained that it was doing so. 
It did not. 
7.435.  The Appellate Body's review of the original  panel's analysis of legitimate objectives also 
suggests that the general rule on burden of proof  applies to Article 2.2 of the TBT Agreement. 
The Appellate Body was "troubled by certain aspe cts of the [original p]anel's analysis of the 
legitimacy of the United States' objective", namely that "although the Panel recognized, at the 
outset of its analysis, that the burden of proving that an objective is not legitimate lay with the 
complainants, its reasoning at times suggests that it, instead, placed on the United States the 
burden of proving that its objective was legitimate."
956 
7.436.  Further, in the original dispute, the United States argued "that the Panel erred by relieving 
the complaining parties of their burden to prove that the measure is 'more trade-restrictive than 
necessary' based on the availability of less trade-restrictive alternative measures."957 In response, 
the Appellate Body referenced the above approach  to burden of proof under Article 2.2, and 
explicitly stated that "the burden of proof with  respect to such alternative measures is on the 
complainants.958"959 
7.437.  For these reasons, we reject Mexico's argument with regard to the burden of proof under 
Article 2.2. The complainants have the burden to "identify a possible alternative measure that is less trade restrictive, makes an equivalent contribution to the relevant objective, and is reasonably 
available."
960 This requires that the complainants both identify at least one specific alternative 
measure, and that they make a prima facie case that such alternative is less trade restrictive, 
makes an equivalent contribution to the relevant objective, and is reasonably available. 
7.438.  These conclusions are also relevant for Canada's point that ascertaining the level of trade-
restrictiveness of a technical regulation "may not be done with the same precision for regulations that have not yet produced measurable trade effects or for possible alternative measures."
961 
We recall that trade-restrictiveness relates to detrimental impact on the competitive opportunities 
for imported livestock, and is not limited to actual trade effects.962 In any event, the complainants 
must address the trade-restrictiveness of both  the amended COOL measure and the alternative 
measures with a sufficient level of precision that allows us to conduct a meaningful comparison 
with alternative measures under Article 2.2 of the TBT Agreement. The complainants cannot be 
relieved of their burden to prove that at least on e specific, reasonably available, and less trade-
                                               
954 Appellate Body Reports, US – COOL , para. 379. 
955 Appellate Body Reports, US – COOL , para. 379. 
956 Appellate Body Reports, US – COOL , para. 449 (emphasis original). 
957 Appellate Body Reports, US – COOL , para. 469. 
958 (footnote original) A ppellate Body Report, US – Tuna II (Mexico) , para. 323. 
959 Appellate Body Reports, US – COOL , para. 469. 
960 Appellate Body Reports, US – COOL , para. 379 (emphasis added). 
961 Canada's second written submission, para. 77. 
962 See section 7.6.3 above. WT/DS384/RW • WT/DS386/RW 
 
- 141 - 
 
  restrictive alternative exists that would fulfil the US objective at least to a degree equivalent to the 
amended COOL measure. 
7.6.5.1.2  "Significantly" less trade restrictive 7.439.  Like in the original dispute
963, the United States argues that a complainant cannot 
establish a breach of Article 2.2 if an alternative measure is only insignificantly less trade 
restrictive than the challenged measure. The United States argues that the word "significantly" in footnote 3 to Article 5.6 of the SPS Agreement shou ld guide the interpretation of Article 2.2 of the 
TBT Agreement. The United States relies on a letter sent by Mr. Sutherland, then Director-General 
of the GATT, to the Chief US Negotiator in mid-December 1993, as a supplementary means of interpretation of the term "more trade-restrictive than necessary" within the meaning of Article 32 of the Vienna Convention on the Law of Treaties.
964 
7.440.  Mexico counters that, "[a]s in the original proceedings, the United States attempts to 
incorporate Article 5.6 of the SPS Agreemen t into Article 2.2 of the TBT Agreement."965 
Mexico points out that the United States' similar arguments failed in the original proceedings.966 
Mexico refers to the Appellate Body's articulation in  the original dispute of the Article 2.2 legal test 
enunciated in US – Tuna II (Mexico) , and notes that the Appellate Body refrained from using the 
word "significantly", and stated merely that the relevant element of the legal test was 
"whether the proposed alternative is less trade restrictive".967 Mexico adds that Article 2.2 neither 
contains the word "significant", nor a footnote similar to footnote 3 to Article 5.6968, 
which provides that "[f]or purposes of paragraph 6 of Article 5 [of the SPS Agreement], a measure is not more trade-restrictive than required unless there is another measure, reasonably available 
taking onto account technical and economic feasibility, that achieves the appropriate level of 
sanitary or phytosanitary protection and is significantly  less restrictive to trade."
969 According to 
Mexico, "[t]hese omissions must be given meaning.970"971 
7.441.  Mexico adds that according to Article 1.4 of the SPS Agreement, "[n]othing in 
this Agreement shall affect the rights of Members under the Agreement on Technical Barriers to Trade with respect to measures not within the scope of this Agreement". Mexico concludes that 
"the SPS Agreement and the TBT Agreement provide different regimes and rules and their scope of 
application is mutually exclusive"
972, and it suggests that "precedents interpreting the 
SPS Agreement should not be applied in disputes involving the TBT Agreement."973 Finally, Mexico 
argues that the Sutherland letter is irrelevant and cannot be considered a supplementary means of 
interpreting Article 2.2 because there is no footnote in that Article, as there is in Article 5.6 of the 
SPS Agreement, that clarifies the meaning of the phrase "more trade-restrictive than necessary." 
7.442.  As Mexico points out, the United States made a very similar argument before the 
Appellate Body, including a reference to the Sutherland letter as a supplementary means of 
interpretation.974 In particular, the United States argued that the comparison with alternatives 
involves assessing the following three elements: "whether (i) there is a reasonably available 
alternative measure (ii) that fulfils the Member's legitimate objective at the level that the Member 
considers appropriate and (iii) is significantly  less trade restrictive."975 
7.443.  To recall, before the Appellate Body, bo th complainants contested the United States' 
similar argument in the context of "more trade-restrictive than necessary". Canada contended that 
                                               
963 Appellate Body Reports,  US – COOL,  para. 45. 
964 United States' first written submission, para. 153, footnote 293. 
965 Mexico's second written submission, para. 120. 
966 Mexico's second written submission, para. 121. 
967 Mexico's second written submission, para. 121 (citing Appellate Body Reports,  US – COOL,  para. 378 
(in turn citing Appe llate Body Report, US – Tuna II (Mexico) , para. 322)). 
968 Mexico's second written submission, para. 122. 
969 Article 5.6 of the SPS Agreemen t, footnote 3 (emphasis added). 
970 (footnote original) A ppellate Body Report, Japan – Alcoholic Beverages II , para. 38. 
971 Mexico's second written submission, para. 122. 
972 Mexico's second written submission, para. 123. 
973 Mexico's second written submission, para. 123. 
974 Appellate Body Reports,  US – COOL,  para. 45. 
975 Appellate Body Reports,  US – COOL,  para. 455 (footnote omitted, emphasis added). WT/DS384/RW • WT/DS386/RW 
 
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  "the fact that Article 2.2 of the TBT Agreement does not contain a footnote similar to footnote 3 of 
the SPS Agreement indicates that 'significantly' shou ld not be read into the 'less trade-restrictive' 
test of Article 2.2."976 Mexico advanced arguments similar to the ones adduced in these compliance 
proceedings.977 
7.444.  In reviewing the United States' argument in the original proceedings, the Appellate Body 
noted that it had established the "proper approach" for interpreting Article 2.2 of the TBT Agreement in US – Tuna II (Mexico) .
978 The Appellate Body added that "[t]hrough … 
[a comparison of the challenged measure and possible alternative measures] a panel will be able 
to judge the 'necessity' of the trade-restrictivene ss of the measure at issue, that is, to discern 
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."
979 
As with the degree of contribution achieved by the challenged measure980, the Appellate Body did 
not qualify this test of relative trade-restrictiveness. 
7.445.  In describing the comparative analysis for completing its Article 2.2 analysis, 
the Appellate Body twice referred to trade-restrictiveness without mentioning the word 
"significantly" or referencing Article 5.6 of the SPS Agreement: "it will be relevant to consider whether the proposed alternative is less trade restrictive"
981 and "whether these alternative 
measures are less trade restrictive than the COOL measure."982 Accordingly, we are of the view 
that the Appellate Body's assessment of the four alternative measures in the original proceedings 
did not entail an analysis of trade-restrictiveness based on the qualifier "significantly". 
7.446.  As Mexico points out, Article 2.2 does not contain a footnote similar to that in Article 5.6, 
and this should be given meaning.983 The plain reading of Article 2.2 and the application of the 
general rules of treaty interpretation codified in Article 31 of the Vienna Convention on the Law of Treaties do not warrant introducing a minimum threshold of trade-restrictiveness by importing the 
word "significantly" from another covered agreement. Indeed, applying these rules suggests that 
the drafters intended that "more trade-restrictiv e than necessary" be interpreted differently in 
Article 2.2 than in Article 5.6. 
7.447.  The Appellate Body has confirmed that th e supplementary means of treaty interpretation 
codified in Article 32 of the Vienna Convention have also attained the status of a rule of "customary or general international law".
984 By the terms of Article 32 itself, recourse to 
supplementary means of interpretation is availa ble to "confirm the meaning resulting from the 
application of Article 31, or to determine the meaning when the interpretation according to 
Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." It does not appear to us that general rules of interpretation 
leave the meaning of the term "more trade-restri ctive than necessary" as used in Article 2.2 
ambiguous, obscure, or manifestly absurd or unreasonable. Thus, we are not persuaded that recourse to Article 32 of the Vienna Convention is  required in seeking to clarify the meaning of 
"more trade-restrictive than necessary" as that term is used in Article 2.2. 
7.448.  Turning to the Sutherland letter, this states that "it was clear from … consultations at the 
expert level that participants felt that the [TBT] Agreement does not concern itself with 
                                               
976 Appellate Body Reports,  US – COOL,  para. 77 (footnote omitted). 
977 "Mexico contests the need to employ supplementary means of interpretation given that the text of 
Article 2.2 and the application of Article 31 of the Vienna  Convention make clear that, unlike in Article 5.6 of 
the SPS Agreement, in Article 2.2 of the TBT Agreement,  there is no footnote providing clarification on the 
meaning of the phrase 'more trade-restrictive than ne cessary'. The absence of such a footnote must have 
meaning. Indeed, even the letter relied upon by the United States indicates that it was not the common intention of Members to incorporate such a footnote in the TBT Agreement. Therefore, in Mexico's view, there 
is no legal basis for incorporating into Article 2.2 of th e TBT Agreement the test in footnote 3 to Article 5.6 of 
the SPS Agreement." Appellate Body Reports,  US – COOL,  para. 109. 
978 Appellate Body Reports,  US – COOL,  para. 461. 
979 Appellate Body Reports,  US – COOL,  para. 461. 
980 Appellate Body Reports,  US – COOL,  paras. 461 and 468. 
981 Appellate Body Reports,  US – COOL,  para. 471. 
982 Appellate Body Reports,  US – COOL,  para. 478. 
983 Appellate Body Report, Japan – Alcoholic Beverages II , p. 26. 
984 Appellate Body Report, Japan – Alcoholic Beverages II , p. 10. WT/DS384/RW • WT/DS386/RW 
 
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  insignificant trade effects."985 In the light of this, the Sutherland letter asked the United States to 
withdraw its objection to adopting the TBT Agreement without the United States' proposed footnote to Article 2.2 (similar to footnote 3 to Article 5.6 of the SPS Agreement).
986 
The Sutherland letter notes that "[i]t was not possible to achieve the necessary level of support for 
the U.S. proposal to add a new footnote to Article 2.2 … ."987 
7.449.  To us, the Sutherland letter does not se rve the purpose suggested by the United States. 
Rather, it supports the view that there was no ag reement among negotiators to read the footnote 
to Article 5.6 of the SPS Agreement into the TBT Agreement. Thus, we cannot agree with the 
United States that we should read such language into the text of Article 2.2. 
7.450.  According to the Sutherland letter, what negotiators seemed to agree on is that the 
TBT Agreement does not concern itself with "insignificant trade effects."988 The Sutherland letter 
does not define this term, let alone suggest that this should be applied specifically to the 
comparison of the trade-restrictiveness of a challenged measure with alternatives.989 Instead, the 
Sutherland letter references the fifth recital of th e preamble of the TBT Agreement, which refers to 
ensuring that technical regulations do not create unnecessary obstacles to international trade. 
Thus, even if it were appropriate in this case to rely upon supplementary means of interpretation under Article 32 of the Vienna Convention – and we are not convinced that it is – what the 
Sutherland letter might demonstrate is negotiators' agreement on the overall balance of the 
TBT Agreement, as reflected in the fifth preambular  recital. This is markedly different from what 
the United States sees in the Sutherland letter. 
7.451.  We therefore decline to read the word "sig nificantly" into Article 2.2 of the TBT Agreement. 
7.6.5.1.3  Sumner Economic Analysis on the magnitude of compliance costs 
7.452.  Canada submitted an economic study by Pr ofessor Sumner to support its estimate of the 
magnitude of added compliance costs required for any non-discriminatory alternative measure to 
cause export revenue losses equivalent to those caused by the original COOL measure (Sumner 
Economic Analysis).
990 Canada claims that the Sumner Economic Analysis demonstrates that any 
non-discriminatory alternative measure991 would require "incredibly large" costs in order to drive 
down imports as much as the original COOL measure has done.992 
7.453.  Following standard supply and demand assumptions993, the model specification of the 
added compliance costs in the Sumner Economic Analysis hinges on four parameters: (i) the elasticity of demand for meat; (ii) the elasticity of  livestock supply; (iii) the share of livestock cost 
in the meat product's retail unit cost; and (iv) the change in livestock revenue based on the 
econometric estimations of the original COOL measure's impact in the Sumner Econometric 
Study.
994 
7.454.  According to Canada, depending on these parameters' values, the findings of the Sumner 
Economic Analysis, when applied to the US-Canada livestock market, suggest that any alternative measure would have to generate a 27-118% increase in meat unit in the cattle sector, and a 
22-72% increase in the hogs sector, to cause export revenue losses comparable to the impact of 
                                               
985 Exhibit US-20. 
986 Exhibit US-20. 
987 Exhibit US-20. 
988 Exhibit US-20. 
989 Exhibit US-20. 
990 Exhibit CDA-126. See also Canada's second written submission, paras. 93-95. 
991 Canada's comments on United States' response to Panel question K, para. 144. 
992 According to Canada, the term "non-discriminatory alternative measure" in the Sumner Economic 
Analysis refers to a measure that does not modify the conditions of competition to the detriment of imported 
livestock, which is a definition it considers consistent with WTO jurisprudence in general and with the findings 
of the Panel and the Appellate Body in the original  proceedings. Canada's comm ents on United States' 
response to Panel question K, para. 146. 
993 Canada's response to Panel question H, para. 248. 
994 Canada's comments on United States' resp onse to Panel question No. 39, para. 73. WT/DS384/RW • WT/DS386/RW 
 
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  the original COOL measure.995 For an average-sized (1,280 pound) steer, the additional processing 
and marketing costs due to increased costs under any non-discriminatory alternative measure would need to range between $608 and $2,672. For an average-sized (280 pound) hog, the additional processing and marketing costs would need to range from $116 to $378.
996 Referring to 
the estimated costs of Uruguay's trace-back system997, Canada argues that the findings of the 
Sumner Economic Analysis demonstrate that a non-discriminatory alternative measure such as a trace-back system could not plausibly cause grea ter export revenue losses than those caused by 
the original or the amended COOL measure.
998 
7.455.  In response to the Panel, Mexico submi tted a variant of the Sumner Economic Analysis 
adapted to the US-Mexican livestock market.999 Using the same economic model specification as 
Canada, the Mexican variant of the Sumner Economic Analysis suggests that, depending on the 
values of the parameters chosen1000, any non-discriminatory alternative measure would have to 
entail a 6-30% increase in the unit cost of meat in the US-Mexican cattle sector. For an average-sized (770 pound) Mexican feeder cattle, an alternative measure such as a trace-back system 
would have to add from $136 to $679 per head of cattle to existing costs in order to generate an 
impact on Mexico's cattle export revenues losses equivalent to the impact of the original COOL measure.
1001 Mexico argues that since the Sumner Economic Analysis only focuses on the original 
COOL measure, the results understate the additional costs that would have to be created to match 
the larger adverse trade effects of the amended COOL measure.1002 
7.456.  The United States disagrees with Canada and Mexico, and argues that the methodology 
and theoretical economic model of the Sumner Economic Analysis and its Mexican variant are 
flawed. According to the United States, the measure of lost export revenue, unlike the common 
approach of price-gap analysis, is an unusual approach in economics that requires a sophisticated economic modelling, the results of which are sensitive to the underlying assumptions.
1003 
The United States contends that some of the assumptions in the Sumner Economic Analysis 
contradict several academic papers.1004 In particular, the United States questions the use of a 
single country-market, in which (i) there is no substitutability effects between meat (beef, pork 
and chicken); and (ii) the Canadian or Mexican export supply sectors respond in the same way as 
the US domestic supply sector. The United States argues that since the measure of lost export revenue is sensitive to large price elasticities, a small change in conditions can lead to major changes in imports and exports values.
1005 The United States also claims that there is no basis for 
equating the term "export revenue loss" with "cos ts" to assess whether an alternative measure is 
less trade restrictive1006 than the amended COOL measure.1007 
                                               
995 Canada's second written submission, paras. 93-95, and response to Panel question No. 40, 
paras. 86-89; Exhibit CDA-126. 
996 Canada's second written submission, paras. 93-95, and response to Panel question No. 40, 
paras. 86-89; Exhibit CDA-126. 
997 Canada's opening statement at the meeting of the Panel, para. 47; Exhibits CDA-131 and 
CDA-145 (BCI). 
998 Canada's opening statement at th e meeting of the Panel, para. 42. 
999 See Mexico's response to Panel question No. 34; and Exhibit MEX-87. 
1000 Mexico considers the same values for the de mand and supply elasticities applied in the 
Sumner Economic Analysis to Canadian livestock, but uses different values for the share of cattle in the cost of 
supplying muscle cuts and change in cattle export  revenue caused by the original COOL measure. 
1001 Mexico's response to Panel question No. 34, para. 56; Exhibit MEX-87. 
1002 Mexico's response to Pane l question No. 34, para. 57. 
1003 United States' comments on Canada's response to Panel question No. 39, paras. 113-115; 
United States' comments on parties' resp onses to Panel question L, paras. 253-255. 
1004 United States' response to Panel question K, paras. 218-220; comments on Mexico's response to 
Panel question No. 34, para. 86; comments on Canada's  response to Panel question H, paras. 243 and 245; 
comments on Canada's response to Panel question J,  para.247; comments on parties' responses to Panel 
question K, paras. 249-250; comments on Canada's addi tional response to Panel question H, paras. 5-7; 
Exhibits US-58, US-63, US-64, and US-81. 
1005 The United States suggests measuring the loss of total profits to producers, defined as the 
"producer surplus" loss, because, according to the Un ited States, the measure of export revenue losses 
overstates the gross profit losses of livestock producer s by overlooking the reduced production costs associated 
with reduced production. United Stat es' comments on Canada's additional  response to Panel question H, 
para. 14. 
1006 According to the United States, the Sumner Econ omic Analysis also reli es on a definition of 
"non-discrimination" that contradicts the Appellate Body 's finding defining a non-discriminatory measure as a 
 WT/DS384/RW • WT/DS386/RW 
 
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  7.457.  In addition to the alleged incorrect mode l specification of the Sumner Economic Analysis 
and its Mexican variant, the United States argues  that the estimations suffer from numerous data 
and methodological shortcomings.1008 The United States claims that the use of inflated 
econometric estimates in the Sumner Economic Analysis applied to Canadian livestock yields 
drastically overstated additional costs.1009 The United States further points out that the Mexican 
variant of the Sumner Economic Analysis did not rely on econometric estimates but used a "COOL 
discount" of $40 per head to estimate the change in Mexican cattle export revenue caused by the 
original COOL measure, which, according to the United States, is inconsistent with Canada's effort 
to isolate the COOL effect from other factors.1010 
7.458.  Overall, the United States claims that the findings of the Sumner Economic Analysis and its 
Mexican variant are inflated, unrealistic and not borne out by the facts and data in the market. 
According to the United States, Mexican exports to the US and Canadian cattle prices relative to 
US price have both increased since the implementation of the original COOL measure. The United States further argues that the results contradict basic economics referenced in various 
papers by Professor Sumner. According to these papers, taxing trade in livestock (i.e. a "COOL 
discount") in an open and duty-free meat market  would have minimal effect on the price of 
livestock. It could only affect where the live stock are slaughtered, leaving the supply of, or 
demand for, meat unaffected.
1011 
7.459.  More generally, the United States claims that the Sumner Economic Analysis and its 
Mexican variant are irrelevant because they do not identify any particular alternative measure, but rather assess the trade effect of an undefined measure unrelated to country of origin labelling.
1012 
As a result, the United States contends that both Canada and Mexico fail to establish (i) how the 
figures in Canada's Sumner Economic Analysis and its Mexican variant correlate to a reduction in Canadian and Mexican exports; (ii) what the corresponding costs would be under a trace-back 
regime; (iii) how the additional costs of the alternative measure would not exceed the estimated 
minimum trade-restrictive cost; and (iv) how such additional costs would relate to an increase in trade under such an alternative.
1013 The United States is of the view that any trade impacts the 
amended COOL measure may cause are due to the much lower processing and marketing costs of 
the original and amended COOL measures outlined in the USDA regulatory impact analyses that accompany the 2009 and 2013 Final Rules. Moreover, th e United States contends, these costs will 
fall over time after industry has adjusted to the new labelling regime of the amended COOL 
measure.
1014 
                                                                                                                                               
measure "causing an equal reduction in market share" , where domestic and imported livestock are equally 
competitive. United States' response to Panel question K, paras. 205-208 and 211-212; comments on Canada's additional response to Panel question H, para. 12. 
1007 United States' response to Panel question No. 39, para. 118. 
1008 United States' second written submission, paras. 140-141 and 144-146; response to Panel question 
No. 39, para. 118; response to Panel question K, paras. 205-209 and 213-223; comments on Canada's and 
Mexico's responses to Panel question No. 7 para. 9; comm ents on parties' responses to Panel question No. 8, 
para. 10; and comments on Me xico's response to Panel question No. 34, para. 84. 
1009 United States' second written submission, para. 141;  response to Panel question K, paras. 213-217; 
comments on parties' response to Panel question No. 41, para. 119; comments on Canada's response to Panel 
question J, para. 248; and comments on Canada's addi tional response to Panel question H, paras. 9-10. 
1010 The United States also argues that the Mexican variant of the Sumner Economic Analysis does not 
establish that the amount computed of per head regulato ry cost represents a "non-d iscriminatory" alternative 
measure, unlike the analysis applied to Canada. Unit ed States' comments on Me xico's response to Panel 
question No. 34, para. 87; comments on Canada's additi onal response to Panel ques tion H, paras. 15-21; and 
comments on Mexico's response to Panel question No. 34, paras. 87 and 92-93. 
1011 United States' second written submission, para. 145; United States' response to Panel question K, 
paras. 221-223; comments on Canada's response to Pane l question J, para. 248; Exhibits US-64, US-65, and 
US-66. 
1012 United States' comments on Mexico's response to Panel qu estion No. 34, paras. 89-91. 
1013 United States' opening statement at the meeting of the Panel, paras. 45-46; comments on Canada's 
response to Panel question No. 40, paras. 116-118; comme nts on Mexico's response to Panel question No. 41, 
para. 120; and comments on Canada's and Mexico's responses to Panel question No. 42, paras. 121 and 123. 
1014 United States' comments on Canada's response  to Panel question J, para. 248; comments on 
Canada's additional response to Panel question H, para. 8; Exhibits CDA-1, CDA-2, and US-81. WT/DS384/RW • WT/DS386/RW 
 
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  7.460.  As noted1015, we consider that it is not our task to establish a unified economic model; 
rather, we need to assess, in light of the parties' arguments, whether the simulated estimations are reliable. 
7.461.  We note that, unlike a general equilibriu m model, a partial equilibrium analysis, such as 
the Sumner Economic Analysis, only considers the effects of a policy in the equilibrium of a 
particular market, i.e. the US-Canada and US-Mexico market segments, respectively, ignoring its effects (including feedback e ffects) in any other markets. 
7.462.  Having reviewed the Sumner Economic Analysis and its Mexican variant, we note that the 
simulation results are contingent on the interplay of three main elements: 
a. the theoretical model used to derive the effects of the original COOL measure on market 
equilibrium, which depends on the assumptions considered, many of which are simplified 
in order to derive readily a closed-form (solvable) specification; 
b. the value of the exogenous parameters of the demand and supply elasticities and of the 
share of slaughter livestock farm price in cost of retail meat; and 
c. the estimation of the lost imported livestock revenue caused by the original COOL 
measure, which hinges on the pre-COOL and post-COOL price and quantity data used for the calibration and on the estimation of the long-run impact of the original COOL 
measure.
1016 
7.463.  The comparison of the figures reported in the Sumner Economic Analysis and its Mexican 
variant shows how sensitive the results are to the set of parameters' value considered, especially with respect to the value assigned to the change in export revenue. The simulated increase in the 
unit cost of meat can be up to 337%, 227% and 400% higher than the lowest simulated figures 
for the Canadian cattle and hogs, and Mexican cattle sectors, respectively. 
7.464.  Moreover, as the United States points out, all economic models are based on assumptions, 
and small changes in these assumptions can have major (positive or negative) effects on the 
simulated figures. We also note that Canada and Mexico fail to address some of the issues raised by the United States, such as the existence of el asticities of substitution between different meats 
and the use of specific and different supply elasticities for Canada, Mexico and the United States. 
For instance, various studies assessing US and Canadian supply and import demand elasticities suggest that the short-run US import demand pric e elasticity for Canadian slaughter steers (-1.79) 
is relatively elastic compared to the US slaughte r demand price elasticity (-0.65 and -0.76), mainly 
because of Canada's small market share of US cattle supplies.
1017 
7.465.  We note further that we have not been gi ven simulation results associated with different 
assumptions underlying the economic model specification (and not simply with different 
parameters values), we are unable to determine an d compare to what extent the findings of the 
Sumner Economic Analysis and its Mexican variant would have changed if some of the above-referenced points raised by the United States
1018 were to be incorporated in the computation of the 
model specification. As a result, we cannot rely on the range of estimated figures of the Sumner 
Economic Analysis and its Mexican variant. 
7.466.  In addition, as the United States points out, the figures reported in the Sumner Economic 
Analysis and its Mexican variant are related to a hypothetical non-discriminatory undefined 
measure. In fact, the structure of the economic model specification in the Sumner Economic 
Analysis is such that it makes no distinction between alternative measures. The Sumner Economic Analysis and its Mexican variant implicitly assume, without substantiating it, that the set of all 
possible hypothetical non-discriminatory measures has the same impact in terms of added 
compliance costs. As a result, neither of the complainants' studies assesses the actual magnitude 
                                               
1015 See section 7.5.4.1.5 above. 
1016 This itself depends on the econometric specification and/or data used. Exhibit CDA-126 and 
Canada's responses to Panel questions H-L. 
1017 Exhibits US-63 and US-64. 
1018 United States' response to Panel question K, para. 221. Exhibits US-63, US-64, and US-81. WT/DS384/RW • WT/DS386/RW 
 
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  of the cost of a specific trace-back system or an y of the other three alternatives put forward by the 
complainants. Hence, we cannot draw any inferences from these studies as to whether the implied additional costs of an alternative, such as a tr ace-back system, implemented in the United States 
would be effectively lower than the hypothetical and simulated figures. 
7.467.  Given the limitations of Canada's Sumner Economic Study and its Mexican variant, and our 
conclusion that we cannot rely on them in our assessment of alternative measures, we need not 
address the United States' procedural objections to Mexico's reliance on the Sumner Economic 
Study.
1019 
7.6.5.2  First alternative measure 7.468.  The complainants' first alternative measure would involve mandatory origin labelling based 
on the country of substantial transformation, combined with voluntary point-of-production labelling 
according to the country of the animal's birth, raising, and slaughter.
1020 The first alternative 
measure would cover all muscle cuts from US-slaughtered animals (Categories A-C)1021, 
and exclude foreign-slaughtered muscle cuts (Category D)1022 and ground meat (Category E).1023 
7.469.  The mandatory element of the complainants' first alternative measure would require that 
Labels A-C indicate origin according to substantial transformation, i.e. the animal's country of slaughter.
1024 The labelling requirements for muscle cuts from foreign-slaughtered animals 
(Label D)1025 would remain unchanged; the first alternative measure would extend these 
requirements to muscle cuts from US-slaughtered animals (Labels A-C).1026 As all Category A-C 
muscle cuts originate from US-slaughtered animals, all Labels A-C1027 could read "'Product of the 
U.S.' (or some variant indicating US origin)"1028, such as "Slaughtered (or harvested) in the 
US".1029 
7.470.  As a voluntary aspect of the complainants' first alternative measure, Labels A-C may 
specify the countries where the animal was born and raised1030, thus providing the same 
information as under the amended COOL measure. The first alternative measure would not change 
the current Label D in this regard either; rath er, it would extend the amended COOL measure's 
voluntary labelling rule for Category D muscle cuts to US-slaughtered (Category A-C) muscle 
cuts.1031 
7.471.  For US-slaughtered muscle cuts, the complainants' first alternative measure would remove 
the three exemptions maintained under the amended COOL measure for (i) entities not meeting 
                                               
1019 See United States' response to Panel question No. 35, and comments on Mexico's responses to 
Panel questions Nos. 34-35. 
1020 See Canada's first written submission, para. 156; and Mexico's first written submission, para. 182. 
1021 Canada's first written submission, paras. 157 and 162, and response to Panel question No. 51; 
Mexico's first written submission, para. 184. 
1022 Canada's response to Panel question No. 47; Mexico's response to Panel question No. 47. 
1023 Canada's response to Panel question No. 44; Mexico's response to Panel question No. 44. 
1024 See Canada's first written submission, para. 156; and Mexico's first written submission, 
para. 183. See also United States' first writte n submission, para. 167 and para. 7.15 above. 
1025 Canada's and Mexico's responses to Panel ques tion No. 47. See also Canada's first written 
submission, para. 157, and response to  Panel question No. 47; Mexico's first written submission, para. 190, 
and second written submission, para. 128. 
1026 See Canada's first written submission, para. 160; and Mexico's first written submission, para. 190. 
1027 Canada's and Mexico's responses to Panel question No. 51. 
1028 Panel question No. 51. 
1029 Canada's response to Panel question No. 51. See also Canada's responses to Panel questions 
Nos. 46 and 47. 
1030 See Canada's first written submission, para. 156; and Mexico's first written submission, para. 185. 
1031 Canada's and Mexico's responses to Panel ques tion No. 47. See also Canada's first written 
submission, para. 160; and Mexico's first written subm ission, para. 190. The amended COOL measure already 
allows for providing more detailed origin information for Category D muscle cuts  on a voluntarily basis. 
According to the 2013 Final Rule, Label D "may include more specific location information related to production steps (i.e., born, raised, and slaughtered) provided records to substantiate the claims are maintained". 
2013 Final Rule, § 65.300(f)(2). WT/DS384/RW • WT/DS386/RW 
 
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  the definition of the term "retailer"; (ii) ingredients in "processed food items"; and (iii) products 
served in a "food service establishment".1032 
7.472.  As to how origin information would be conveyed following the removal of these three 
exemptions, according to Canada: 
[f]ood service establishments could convey information about origin on menus, signs 
or placards. Menus and displays could be set up so as to allow a modification in the information without having to replace them (through clips on menus, for instance). 
With respect to processed food items, orig in information on muscle cuts of beef or 
pork they contain could be displayed on packages in the list of ingredients (e.g. "beef (slaughtered in the U.S.)" under the first alternative measure; and "pork (product of U.S., Canada)" under the second alternative). … [F]ood processors 
may not have to modify the ingredients lists often, because it would be relatively easy 
for them to find a steady suppl y of meat with the same origin (e.g. product of the U.S. 
and Canada). As for small retailers, they would have to convey information about 
origin in the same way as do covered retailers under the amended COOL measure 
(e.g. butcher shops could use signage).
1033 
7.473.  Mexico adds that "[f]ood service establishments could inform consumers about the origin 
of muscle cuts and processed food items by indicating origin information on menus, blackboards 
where daily specials are posted, and on their web sites".1034 
7.6.5.2.1  Whether the first alternative meas ure would make an equivalent contribution 
to the relevant legitimate objective 
7.474.  In meat production "substantial transf ormation" means the slaughter of the originating 
animal – both in the context of the amended CO OL measure and the complainants' suggested first 
alternative measure.1035 Slaughter is only one of the three production steps (birth, raising, and 
slaughter) on which Labels A-C provide consumer  information under the amended COOL measure. 
Thus, the complainants' first alternative measure would mandate less label information on the origin of muscle cuts derived from US-slaughter ed livestock than the amended COOL measure. 
As the Appellate Body held, "under … a [mandatory] labelling scheme [based on substantial 
transformation,] consumers would be provided with information on where livestock were slaughtered, but they would not be provided with  any information as to where the livestock were 
born and raised."
1036 
7.475.  This would result in limited contribution to  the objective of providing origin information to 
consumers. In the original dispute, the Appellate Body noted that, "in the context of Article 2.4 of 
the TBT Agreement, the [original p]anel [had] found that CODEX STAN 1-1985, which is based on 
the principle of substantial transformation, 'does not have the function or capacity of 
accomplishing the objective of providing information to consumers about the countries in which an animal was born, raised and slaughtered' and hence is ' ineffective  and inappropriate  for the 
fulfilment of the specific objective as defined by the United States'."
1037 According to the 
Appellate Body, these findings by the original panel "suggest that a mandatory labelling regime based on substantial transformation would, at best, contribute only partially to the objective of providing information to consumers on where livestock from which meat is derived were born, 
raised, and slaughtered."
1038 
                                               
1032 See Canada's first written submission, para. 162, and response to Panel qu estion No. 51; Mexico's 
first written submission, para. 182. 
1033 Canada's response to Panel question No. 46. 
1034 Mexico's response to Panel question No. 46. 
1035 Canada's first written submission, para. 156. As noted above, the complainants assert that the 
United States applies a "substantial transformation" test  and, for NAFTA countries, a test based on change in 
tariff classification to determine origin. According to the complainants, the result under both tests is to 
designate the place of slaughter as the country of origin. Canada's first written submission, para. 18 and 
footnote 53; Mexico's first written su bmission, para. 32 and footnote 30. 
1036 Appellate Body Reports, US – COOL , para. 485. 
1037 Appellate Body Reports, US – COOL , para. 485 (emphasis original, footnote omitted). 
1038 Appellate Body Reports, US – COOL , para. 486. WT/DS384/RW • WT/DS386/RW 
 
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  7.476.  The complainants explain that information on the other two production steps (birth and 
raising) would be voluntary under their first alternative measure.1039 According to the 
Appellate Body, "the contribution of a voluntary labelling requirement to the objective of providing consumers with information on where livestock were born, raised, and slaughtered would be a 
function of the accuracy with which labels reflect origin as the country or countries in which 
different production steps took place, the scope of the products covered by such a voluntary labelling scheme, and the extent to which labels would be used."
1040 
7.477.  In the original dispute, the Appellate Body explained that "in its analysis under Article 2.1 
of the TBT Agreement, the [original p]anel [h ad] referred to evidence suggesting that US 
consumers are not generally willing to pay for information on origin, and that, prior to the introduction of the COOL measure, there was a lack of widespread participation in voluntary origin 
labelling programmes."
1041 We have held that the original panel's finding about "the lack of 
[consumer] interest in a voluntary COOL regime"1042 continues to apply in this compliance 
dispute.1043 
7.478.  In the context of the first alternative measure, Canada and the United States question 
whether industry participants would voluntarily provide origin information in the absence of sufficient consumer readiness to pay for it.
1044 Mexico argues that "at least one major retailer" 
voluntarily labelled its products "100% US beef".1045 Although Mexico advances this piece of 
evidence1046 to show the occurrence of voluntary origin labelling, it is silent on the extent of such 
voluntary labelling and whether industry participants would voluntarily affix country of origin labels on muscle cuts according to the three production  steps. On the whole, the evidence does not 
suggest that the voluntary option would be exercised on a wide scale. 
7.479.  Thus, even with its voluntary element, the complainants' first alternative measure would 
provide less information on origin than the amended COOL measure for muscle cuts derived from 
US-slaughtered livestock covered by Labels A-C. 
7.480.  In the original dispute, the Appellate Body reviewed a similar measure with combined 
mandatory and voluntary aspects, but could not draw a definitive conclusion for comparing the 
respective degrees of contribution after assessing merely the contribution under the alternative 
measure's mandatory and voluntary aspects.
1047 The Appellate Body noted that an alternative 
measure's coverage might also be relevant for a ssessing its degree of contribution. In reviewing 
the complainants' first alternative in the original dispute (mandatory origin labelling based on 
substantial transformation), the Appellate Body stated that: 
without knowing whether a mandatory labelling system based on substantial 
transformation would require all beef and pork sold in the United States to be labelled, 
we are unable to compare the degree of the C OOL measure's contribution with that of 
this alternative measure proposed by the complainants.1048 
7.481.  We note that the complainants' first alternative measure would remove the three 
exemptions of the amended COOL measure.  Given the extent of these exemptions1049, the first 
alternative measure would cover a significantly wider range of muscle cuts from US-slaughtered livestock than the amended COOL measure. Effectively, all muscle cuts from US-slaughtered 
                                               
1039 Canada's first written submission, para. 158; Mexico's first written submission, para. 182. 
1040 Appellate Body Reports, US – COOL , para. 483. 
1041 Appellate Body Reports, US – COOL , para. 483 (footnotes omitted). 
1042 Panel Reports, US – COOL , para. 7.354. 
1043 See para. 7.160 above. 
1044 Canada's second written submission, para. 98; United States' first written submission, para. 168. 
1045 Mexico's second written submission, para. 130. 
1046 Exhibit MEX-15-A. 
1047 According to the Appellate Body, "it is unclear whether a voluntary labelling scheme combined with 
a mandatory labelling requirement based on substantia l transformation would make a contribution to the 
objective of providing consumers with information on wh ere livestock were born, raised, and slaughtered, at 
least equivalent to the contribution made by  the COOL measure." A ppellate Body Reports, US – COOL , 
para. 488. 
1048 Appellate Body Reports, US – COOL , para. 486. 
1049 See paras. 7.258-7.262 above. WT/DS384/RW • WT/DS386/RW 
 
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  livestock marketed in the United States would carry an origin label under the complainants' first 
alternative measure. At the same time, the labels under the first alternative measure would provide less origin information for this extended coverage than the amended COOL measure. The question, therefore, is whether a suggested  alternative that would provide less origin 
information on a wider range of products would make at least "an equivalent contribution to the 
relevant legitimate objective"
1050 as the amended COOL measure. 
7.482.  We have found that the objective of the amended COOL measure is to provide origin 
information to consumers1051, and that this is a legitimate objective under the TBT Agreement.1052 
We have also established the level at which the United States "actually"1053 achieves this legitimate 
objective through the amended COOL measure.1054 Further, the Appellate Body has consistently 
held that, for the purposes of Article 2.2 of th e TBT Agreement, an alternative measure needs to 
make at least an "equivalent degree" of contribution as the challenged measure.1055 Hence, 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. 
7.483.  The complainants have confirmed that all
1056 Labels A-C could read "Product of the 
U.S."1057 or "Slaughtered (or harvested) in the US"1058 under their first alternative measure.1059 
As a result, not only would the first alternative measure provide less origin information 
(although for a significantly wider range of products), it would result in all muscle cuts from US-
slaughtered animals carrying the same label, irrespective of where the animals were born and raised. This would be in sharp contrast with the amended COOL measure, which mandates distinct labels for Category A, B, and C muscle cuts, reflecting not only the animals' identical country of 
slaughter (i.e. the United States) but also their po tentially different countries of birth and raising. 
Based on this, the first alternative measure as described by the complainants 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. 
7.484.  While recognizing that Labels A-C would appear the same under their first alternative 
measure, the complainants argue that this alternative measure, taken as a whole and including its 
extended coverage, should be considered as making  an equivalent contribution "taking account of 
the risks non-fulfilment would create". The United States responds that alternative measures that contribute to a legitimate objective to a lesser degree than the challenged measure cannot prove a 
violation of Article 2.2.
1060 Referencing the sixth recital to the TBT Agreement1061, the 
United States adds that it is up to each Member to determine what legitimate objectives it wishes 
to pursue and to what degree.1062 
                                               
1050 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (footnote omitted). 
1051 See section 7.6.2.1 above. 
1052 See section 7.6.2.2 above. 
1053 Appellate Body Reports, US – COOL , para. 426. See also Appellate Body Report, US – Tuna II 
(Mexico) , para. 317. 
1054 See section 7.6.2.3 above. 
1055 Appellate Body Report, US – Tuna II (Mexico) , paras. 321, 322, 323, and 330. Appellate Body 
Reports, US – COOL, paras. 378, 379, 471, 481 and 488. 
1056 Canada's and Mexico's responses to Panel question No. 51. 
1057 Mexico's response to Panel question No. 51. 
1058 Canada's response to Panel question No. 51. See also Canada's responses to Panel questions Nos. 
46 and 47. 
1059 See also Mexico's response to Panel question No. 51; and United States ' comments on Mexico's 
response to Panel question No. 51. 
1060 United States' second written submission, para. 121 (citing Appellate Body Report, US – Tuna II 
(Mexico) , para. 330). 
1061 The sixth recital to the TBT Agreement reads as follows: " Recognizing  that no country should be 
prevented from taking measures necessary to ensure the qu ality of its exports, or for the protection of human, 
animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it 
considers appropriate, subject to the requirement that th ey are not applied in a manner which would constitute 
a means of arbitrary or unjustifiable discrimination between countries wher e the same conditions prevail or a 
disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement". 
1062 See United States' first written submission, pa ra. 170, and second written submission, para. 121 
(citing Appellate Body Reports, US – COOL , para. 373 and Appellate Body Report, US – Tuna II (Mexico) , 
paras. 315-316). WT/DS384/RW • WT/DS386/RW 
 
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  7.485.  We are mindful of a Member's right to pursue legitimate objectives "at the levels it 
considers appropriate."1063 However, as the Appellate Body noted, the preamble to the 
TBT Agreement strikes a "balance … between, on the one hand, the desire to avoid creating unnecessary obstacles to international trade and, on the other hand, the recognition of Members' 
right to regulate."
1064 The sixth preambular recital to the TBT Agreement reflects this by setting 
forth that a Member shall not be prevented from taking measures necessary to achieve its legitimate objectives at the levels it considers appropriate, "subject to certain qualifications"
1065: 
namely that such measures "are not applied in a manner which would constitute a means of 
arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement." 
7.486.  The Appellate Body explained the relevance of the phrase "the risks non-fulfilment would 
create" in the context of a comparative analysis under Article 2.2: 
[T]he obligation to consider '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. 
This suggests a further element of weighing and balancing in the determination of 
whether the trade-restrictiveness of a technical regulation is 'necessary' or, alternatively, whether a possible alternative measure, which is less trade restrictive, would make an equivalent contribution to the relevant legitimate objective, taking 
account of the risks non-fulfilment would create, and would be reasonably 
available.
1066 
7.487.  This suggests 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. This is confirmed by the Appellate Body's summary of the three main elements of the comparative analysis un der Article 2.2 of the TBT Agreement: 
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.
1067 
7.488.  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. However, 
in reviewing "the risks non-fulfilment would create", we were unable to ascertain the gravity of these consequences.
1068 Accordingly, we cannot determine the specific implications of risks of non-
fulfilment for the interplay between less information coupled with more extensive coverage under 
the first alternative measure, or for the first alternative's degree of contribution. 
7.489.  We observe that less origin information might reduce consumer confusion or 
misinformation in some circumstances. For example, consumers might find a large amount of 
information on a product packaging difficult to und erstand. In addition, consumers might be more 
interested in specific types of origin information, for instance in origin information according to certain production steps, such as the place of sl aughter. In any event, the implications of the 
quantity of origin information for consumers be ing effectively informed would depend on the 
                                               
1063 See sixth recital to the TBT Agreement; Appellate Body Reports, US – COOL , para. 373; and US – 
Tuna II (Mexico) , paras. 315-316. 
1064 Appellate Body Report, US – Clove Cigarettes , para. 96. 
1065 Appellate Body Reports, US – COOL , para. 373 (citing Appellate Body Report, US – Tuna II (Mexico) , 
para. 316). 
1066 Appellate Body Report, US – Tuna II (Mexico) , para. 321. See also Appellate Body Reports, US – 
COOL , para. 377. 
1067 Appellate Body Reports, US – COOL , para. 471 (citing Appellate Body Report, US – Tuna II (Mexico) , 
para. 322)  (emphasis added).  
1068 See 7.6.4.4 above. WT/DS384/RW • WT/DS386/RW 
 
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  nature of the information being conveyed and the method of conveyance. In the context of the 
first alternative measure, it is difficult to establish the exact implications for consumer information of having less information on the labels – even for a wider coverage of products. 
7.490.  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. 
7.491.  The United States argues that this should be the end of our analysis of the first alternative 
measure.
1069 We agree. According to the Appellate Body, the three factors of the comparative 
analysis are conjunctive.1070 An alternative measure that has not been proven to make at least an 
equivalent degree of contribution cannot serve as a basis for finding a violation of Article 2.2 of the TBT Agreement – irrespective of whether the alternative measure is reasonably available or how 
its eventual trade-restrictiveness compares with the challenged measure. As the United States 
points out
1071, at the outset of its Article 2.2 assessment in US – Tuna II (Mexico) , 
the Appellate Body noted all three factors of the comparative analysis under that Article1072, but 
ended its Article 2.2 review after having overturned the panel's finding that the alternative 
measure would make a contribution equivalent to that made by the challenged measure.1073 
7.6.5.3  Second alternative measure 7.492.  The complainants' second alternative measure would extend ground meat labelling rules to 
muscle cuts
1074 from US-slaughtered1075 animals.1076 Thus, Labels A-C would "list all countries of 
origin contained therein or that may be reasonably contained therein".1077 This would be governed 
by the 60-day "inventory allowance"1078, according to which if "a raw material from a specific 
origin is not in a processor's inventory for more than 60 days, that country shall no longer be 
included as a possible country of origin."1079 
7.493.  Under the second alternative measure, La bels A-C would not provide information on where 
the originating animal was born, raised, and slaughtered.1080 These labels would read "Product of 
the U.S."1081 for muscle cuts from exclusively US-origin animals. In light of the 60-day inventory 
allowance, the labels could also read "Product of the U.S., Canada"1082 or "Product of the 
United States and Mexico"1083 depending on whether Canadian or  Mexican origin raw material may 
also be reasonably contained in the ground meat. As the original panel held, "a processor may use 
the same label for all of its ground meat, provided that the label lists all countries of origin of the 
                                               
1069 United States' opening statement at the meeting of the Panel, para. 38. 
1070 See Appellate Body Reports, US – COOL , para. 376. 
1071 United States' opening statement  at the meeting of the Panel, para. 38. 
1072 The Appellate Body stated that "[i]t was for the Panel, therefore, in assessing Mexico's claim that 
the US 'dolphin-safe' labelling provisions 'are more tr ade-restrictive than necessar y' within the meaning of 
Article 2.2, to examine, inter alia, the contribution that the US measure makes to the achievement of its 
objectives; the trade-restrictiveness of the US 'dolphin-safe' labelling provisions; whether Mexico had identified a 'reasonably available' and less trad e-restrictive alternative measure, and to compare the degree of the US 
measure's contribution with that of the alternative measure, which is reasonab ly available and less trade 
restrictive, taking account of the risks non-fu lfilment would create." Appellate Body Report, US – Tuna II 
(Mexico) , para. 326. 
1073 Appellate Body Report, US – Tuna II (Mexico) , paras. 324-333. 
1074 Like the first alternative, the complainants' seco nd alternative measure woul d not modify the ground 
meat label. Canada's and Mexico's responses to Panel question No. 44. 
1075 Like the first alternative, the complainants' seco nd alternative measure would not modify Label D. 
Canada's and Mexico's responses to Panel question No. 47. 
1076 Canada's first written submission, para. 164; Mexico's first written submission, para. 192. 
1077 2009 Final Rule, § 65.300(h) (unamended). 
1078 Panel Reports, US – COOL , para. 7.435. 
1079 2009 Final Rule, § 65.300(h) (unamended). 
1080 Canada's and Mexico's responses to Panel question No. 52. 
1081 Canada's response to Panel question No. 53. 
1082 Canada's response to Panel question No. 53. 
1083 Canada's response to Panel question No. 53. WT/DS384/RW • WT/DS386/RW 
 
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  meat ground by the processor, and that the processor has had in its inventory meat for grinding of 
each origin at least every 60 days."1084 
7.494.  Similarly to the first alternative measure, the complainants' second alternative measure 
would remove the three exemptions of the original COOL measure and maintained by the 
amended COOL measure.1085 
7.6.5.3.1  Whether the second alternat ive measure would make an equivalent 
contribution to the relevant legitimate objective 
7.495.  The complainants' second alternative measure would extend the original COOL measure's 
unchanged ground meat labelling rules, including the 60-day inventory allowance, to muscle cuts from US-slaughtered animals. 
7.496.  As noted, under the second alternative measure, Labels A-C would "list all countries of 
origin contained therein or that may be reasonably contained therein".
1086 Thus, unlike under the 
amended COOL measure, Labels A-C would not provide country of origin information according to point-of-production (birth, raising, and slaughter).
1087 As a consequence, the complainants' second 
alternative measure would involve less detailed origin information for muscle cuts from US-
slaughtered animals than th e amended COOL measure. 
7.497.  Apart from the reduced detail of information, the 60-day inventory allowance would 
introduce new potential for label inaccuracy. The original panel viewed inventory allowance as a 
"significant flexibility"1088 because "it allows a processor to reference a country of origin on its 
ground meat label even if the processor has not had ground meat from that particular country in its inventory for the last 60 days or less."
1089 In addition, in its Article 2.2 analysis, the original 
panel held that the ground meat label could provide origin information only with limited accuracy: 
Because of th[e] so-called "60-day inventory allowance" in the 2009 Final Rule (AMS), 
the ground meat label is likely to convey inaccurate origin information as a processor 
may use the same label for all of its ground meat listing all countries of origin of the 
ground meat that the processor has had in its inventory at least for 60 days. In other words, an origin label affixed on ground meat could be listing a country name of meat 
that the processor might not even have used to produce the specific ground meat in 
that package. In fact, the Vilsack letter contains a statement confirming this: "[t]his [60-day inventory allowance] provision allows for labels to be used in a way that does not clearly indicate the product's country of origin".
1090 
7.498.  As regards the actual contribution of th e second alternative measure, like for the first 
alternative measure, we take note of the origin information that Category A-C muscle cut labels would convey based on the complainants' descr iptions. According to Canada, the "majority"
1091 of 
US-slaughtered muscle cuts would be labelled "Product of the U.S."1092, and market actors 
handling muscle cuts of both US and Canadian origin would increasingly affix a joint "Product or the US., Canada" label.
1093 Likewise, according to Mexico, the "majority"1094 of meat processed by 
plants relying also on Mexican cattle would carry a joint "Product of the United States and Mexico" 
label.1095 
                                               
1084 Panel Reports, US – COOL , para. 7.427. 
1085 As for how previously exempted products and se ctors would label products under the complainants' 
second alternative measure, see paras. 7.472-7.473 above. 
1086 2009 Final Rule, § 65.300(h).  
1087 Canada's and Mexico's responses to Panel question No. 52. 
1088 Panel Reports, US – COOL , para. 7.435. 
1089 Panel Reports, US – COOL , para. 7.427. 
1090 Panel Reports, US – COOL , para. 7.706. This supporting finding was not overturned by the 
Appellate Body.  
1091 Canada's response to Panel question No. 53. 
1092 Canada's response to Panel question No. 53. 
1093 Canada's response to Panel question No. 53. 
1094 Mexico's response to Panel question No. 53. 
1095 Mexico's response to Panel question No. 53. WT/DS384/RW • WT/DS386/RW 
 
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  7.499.  We note that these labels would be similar in appearance to those under the original COOL 
measure1096, but would indicate origin according to the flexibility for mixing animals and products 
of potentially different sources. In light of the 60-day inventory allowance, and given that Mexico and Canada are the two main sources of US livestock imports
1097, we note the possibility that a 
single North American label (e.g. "Product of Canada, Mexico, and the United States") could be 
a f f i x e d  t o  s o m e  p r o p o r t i o n  o f  m u s c l e  c u t s  f r o m  U S - s l a u g h t e r e d  a n i m a l s  m a r k e t e d  i n  t h e  United States. As long as products from Canada, Mexico, and the United States are in a market 
participant's inventory during any 60-day wind ow, muscle cuts derived from US-slaughtered 
animals could indistinguishably carry the same North American label under the complainants' second alternative measure.
1098 Absent indications from the complainants to the contrary, this 
outcome cannot be excluded in light of the relative integration of the North American livestock and 
meat market1099 and the fact that the 60-day inventory allowance is available for market 
participants at every stage of meat supply and distribution.1100 Further, to the extent that market 
participants make economically rational choices to avail themselves of this inventory allowance, an 
increasing proportion of muscle cuts of purely US origin would no longer be labelled as such under 
the second alternative measure, but would carry a label also showing a foreign origin.1101 
7.500.  The second alternative measure could thus result in muscle cuts from US-slaughtered 
animals born or raised in different countries carrying the same label, which could possibly be 
affixed on muscle cuts that do not originate in at least one of the countries shown on the label.1102 
This would be in sharp contrast with the amended COOL measure, which mandates distinct labels for Category A, B, and C muscle cu ts, reflecting – with the relatively higher degree of accuracy 
established above
1103 – the countries of birth, raising, an d slaughter of the originating animals. 
Thus, the complainants' second alternative measure would potentially provide less accurate origin information than the amended COOL measure for covered muscle cuts of US-slaughtered animals. 
Based on this, the second alternative measure as described by the complainants 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. 
7.501.  Like for the first alternative measure, the complainants argue that removing the three 
exemptions of the amended COOL measure should offset the loss of accuracy in origin information under the second alternative measure.
1104 We have explained1105 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. 
In any event, absent sufficient arguments and ev idence from the complainants, we have been 
unable to ascertain the gravity of the consequences of not fulfilling the objective of providing 
consumer information on origin.1106 Accordingly, like for the first alternative measure, we cannot 
determine the specific implications of risks of non-fulfilment for the interplay between less 
                                               
1096 See Table 1 above; Panel Reports, US – COOL , para. 7.100. 
1097 The trade figures submitted by the parties indicate  that Canada and Mexico are the two main direct 
sources of US livestock imports. According to these figu res, the United States impo rts cattle from Canada and 
Mexico, and hogs from Canada. For US cattle imports, see Exhibit Appendix CDA- 2, Exhibits MEX-60, and 
Exhibit US-59. For US hog imports, see Ex hibit Appendix CDA-7 and Exhibit US-59. 
1098 The original panel held that "a processor may use the same label for all of its ground meat, provided 
that the label lists all countries of origin of the meat ground by the processor, an d that the processor has had 
in its inventory meat for grinding of each origin at least every 60 days."  Panel Reports, US – COOL , 
para. 7.427. 
1099 See Panel Reports, US – COOL , paras. 7.140-7.142. 
1100 Panel Reports, US – COOL , para. 7.434 (citing 2009 Final Rule, p. 2671).  
1101 Canada's a nd Mexico's responses to Panel questi on No. 53; United States' comments on Canada's 
and Mexico's responses to Panel question No. 53. 
1102 The complainants argue that the labelling flexibility of their second alternative measure would 
reduce the sources of discriminatory costs (segregation, recordkeeping) under the amended COOL measure. See Canada's first written submission, para. 167; and Mexico's first written submission, para. 194. 
1103 See section 7.6.2.3 above. 
1104 See Canada's first written submission, para. 167; and Mexico's first written submission, para. 197. 
1105 See para. 7.488 above. 
1106 See section 7.6.4.4 above. WT/DS384/RW • WT/DS386/RW 
 
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  accurate information and more extensive coverage  under the second alternative measure, or for 
the second alternative's degree of contribution. 
7.502.  Like for the first alternative measure, we lack relevant arguments and explanations from 
the complainants in this regard. Consequently, we cannot determine how and to what degree 
extended coverage could actually compensate for the less accurate origin information provided to 
consumers under the second alternative measure. 
7.503.  Accordingly, we find that the complainants have not made a prima facie case that their 
second alternative measure would make an equivalent degree of contribution to the objective of 
providing origin information to consumers as the amended COOL measure. In light of this finding 
and for the reasons explained under the first alternative measure1107, we end our analysis of the 
second alternative measure here. 
7.6.5.4  Third alternative measure 
7.504.  The complainants' third alternative measure would apply to muscle cuts from 
US-slaughtered animals.1108 It would entail a mandatory trace-back1109 system to provide "specific 
information"1110 on "the precise location"1111 where the animal was born, raised, and 
slaughtered.1112 The complainants do not indicate that this alternative would remove the existing 
exemptions under the amended COOL measure. 
7.505.  The essence of the third alternative measure would be to preserve the link between the 
animal (or group of animals) and the resulting meat1113 by requiring that a retailer be able to trace 
a muscle cut piece of meat back to the original animal.1114 According to the complainants, the third 
alternative would eliminate the need to segregate,  throughout the supply chain, both animals and 
muscle cuts on the basis of the country or countries where the animals were born and raised, 
because each individual animal or group of an imals and each covered muscle cut commodity would 
have to be traceable, regard less of its country of origin.1115 
7.506.  The United States contends that the comp lainants present the third alternative "more as a 
concept than as an actual measure".1116 As explained above1117, adequate identification of an 
alternative measure by the complainants is a pr erequisite of meeting their burden to make a prima 
facie case that such measure "is less trade restrictive, makes an equivalent contribution to the 
relevant objective, and is reasonably available".1118 As the Appellate Body pointed out, the 
complainants' identification of an alternative measure should, at a minimum, enable comparison with the challenged measure in terms of the relevant legal elements.
1119 An alternative measure 
may be found not to be reasonably available, for example "where it is merely theoretical  in 
                                               
1107 See para. 7.491 above and Appellate Body Report, US – Tuna II (Mexico) , paras. 324-333. 
1108 Canada's second written submission, para. 125, and response to Panel question Nos. 44, 47, 55, 
and 60; Mexico's first written submission, para. 206, and response to Panel question Nos. 44, 47, and 55. 
1109 Further to the parties' explanatio ns, we use the term "traceability" as a general term to describe the 
tracking of a given product and "trace-back" to specifical ly denote traceability from the birth of an animal to 
the retail sale of a resulting muscle cut of meat. S ee parties' responses to Panel question No. 54, and 
Appellate Body Reports, US – COOL , para. 489 and footnote 1009. 
1110 Mexico's first written submission, para. 200. 
1111 Canada's first written submission, para. 169. 
1112 Canada's first written submission, para. 169; Mexico's first written submission, paras. 200 and 206. 
As Mexico points out, the complainants suggested a similar alternative in the original proceedings. See Mexico's first written submission, para. 200; and Appellate Body Reports, US – COOL , paras. 480 and 489-490. 
1113 Canada's response to Panel question No. 62. 
1114 Mexico's first written submission, para. 201. 
1115 Canada's first written submission, para. 177; Mexico's first written submission, paras. 200-210. 
1116 United States' comments on responses to Panel question No. 57, para. 172. 
1117 See section 7.6.5.1.1 above. 
1118 Appellate Body Reports, US – COOL , para. 379. 
1119 Specifically, the Appellate Body has referred to a complainant's identification of "a possible 
alternative measure that is less trade restrictive, makes an equivalent cont ribution to the relevant objective, 
and is reasonably available" See Appellate Body Reports, US – COOL , para. 379. As explained, a full analysis of 
the complainants' Article 2.2 claims requires a comparison of the amended COOL measure with the complainants' suggested alternatives. See section 7.6.1.2 above. WT/DS384/RW • WT/DS386/RW 
 
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  nature".1120 Likewise, adequate identification of the alternative is essential for determining the 
alternative measure's trade-restrictiveness and degree of contribution in comparison with the challenged measure. We therefore consider the co mplainants' explanations of the implementation 
of trace-back by the United States to be of ce ntral importance to their burden of proof and our 
examination of the complainants' third alternative measure. 
7.507.  We note that the complainants describe the third alternative measure with reference to 
various examples of traceability and trace-back pr ograms in the United States and other countries, 
which are discussed below. In their arguments on the third alternative, the parties also reference 
the costs associated with other traceability and trace-back programs. The complainants accept that a trace-back system for muscle cuts from US-slaughtered animals would entail costs.
1121 They 
argue that such costs would be distributed througho ut the supply chain and would thus fall evenly 
on all market participants, whether foreign or domestic. This would allegedly eliminate the 
disincentive to use imported livestock and the disproportionate costs borne by foreign producers under the amended COOL measure.
1122 
7.508.  The United States asserts that the estima tion of the cost of a trace-back system is a 
complex undertaking, requiring extensive stakeholder outreach.1123 In its view, a trace-back 
system – even one designed in general terms – wo uld significantly increase the costs associated 
with recordkeeping and verification as well as labelling.1124 According to the United States, the 
complainants' suggested trace-back regime would not merely impose costs on the domestic market, but also on foreign producers who would need to develop compatible trace-back programmes.
1125 The United States argues that costs associated with a trace-back regime would 
amount to several billions of dollars1126, leading to changes in the industry that are difficult to 
predict, including increased consolidation and a dramatic slowdown in the slaughtering process.1127 
7.509.  Given the parties' extensive reference to the costs entailed by the third alternative1128, 
we examine the trace-back system proposed by th e complainants with regard for the evidence and 
arguments on its associated costs. To the extent  that such evidence and arguments are advanced 
to describe the complainants' third alternative, the issue of costs may be relevant for assessing 
whether they have met their burden of adequately identifying a "trace-back" measure. In addition, 
the costs imposed by an alternative measure may be directly relevant to whether such a measure can be considered reasonably available to a responding Member.
1129 The potential costs of trace-
back are further relevant to examine the validity of the complainants' arguments on the 
relationship between costs and trade-restrictiveness. 
                                               
1120 Appellate Body Report, Brazil – Retreaded Tyres , para. 156 (quoting Appellate Body Report, US – 
Gambling , para. 308) (emphasis added).  
1121 See, e.g. Canada's first written submission, para. 178; and Mexico's first written submission, 
para. 209. 
1122 Canada argues that "while a trac e-back system would entail costs fo r tracking throughout the supply 
chain, the fact that these costs would be related to each individual animal or group of  animals – irrespective of 
the country of origin – means that the costs would fall evenly on all market partic ipants, whethe r foreign or 
domestic." Canada's first written submission, para. 178 (footnotes omitted). Mexico contends that "this 
alternative would accurately and comprehensively fulfil the objective of the COOL Measure and yet not 
discriminate against imports in the se nse that it would eliminate the option of restricting trade in imports and 
as well as the option of discounting the price of imports as the most commercially viable option to comply with the Amended COOL Measure. Thus, costs of the mandator y labelling would be spread evenly throughout the 
market." Mexico's first written submission, para. 200. 
1123 United States' comments on responses to Panel question No. 59, para. 179. 
1124 United States' first written submission, para. 185. 
1125 United States' first written submission, para. 187. 
1126 United States' first written submission, para. 190. 
1127 See United States' opening statement at the meeting of the Panel, para. 52. 
1128 See generally parties' responses to Panel questions Nos. 39-41. This is nota bly reflected in Canada's 
position that there is a certain level of compliance co sts that a non-discriminatory  alternative measure could 
entail that would generate trade impacts equivalent to or greater than those of the amended COOL measure. See Canada's second written submission, paras. 94-95; response to Panel question No. 40; and 
Exhibit CDA-126. We have addressed the methodological and other shortcomings of the evidence submitted by 
Canada as to the magnitude of those costs required to  have equivalent trade effects to the original COOL 
measure. See section 7.6.5.1.3 above.  
1129 See Appellate Body Reports, EC – Seal Products , para. 5.277; Brazil – Retreaded Tyres , para. 156; 
and US – Gambling , para. 308. WT/DS384/RW • WT/DS386/RW 
 
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  7.510.  We turn to the complainants' identification and description of the proposed trace-back 
system with particular focus on the parties' arguments on the implementation and related costs of such a measure. We are guided by the Appellate  Body's clarification that a party bearing the 
burden in the context of an alternative measure's reasonable availability "must support such an 
assertion with sufficient evidence", and "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".
1130 
7.6.5.4.1  Implementation and cost s of the third alternative measure 
7.511.  According to Canada, a trace-back system would involve three stages: (i) from the birth of 
the animal to the slaughterhouse; (ii) the killing of  the animal and the division of the carcass into 
cuts at the slaughterhouse; and (iii) the delivery of  cuts from the slaughterhouse to the consumer 
through the distribution chain.1131 The first stage, birth to slaughterhouse, would entail three 
pillars: (a) premises identification; (b) animal identification; and (c) animal movement.1132 
According to Canada, full implementation of the animal movement pillar would not be necessary 
because not all animal movements are relevant (e.g. animal movements to an auction facility).1133 
The table below represents graphically the structure of Canada's suggested trace-back system. 
Stage 1 
 
from birth to slaughterhouse Stage 2 
 
killing of the animal and 
division of the carcass 
into muscle cuts at 
slaughterhouse Stage 3 
 
delivery of muscle cuts 
from the 
slaughterhouse 
through the 
distribution chain all 
the way to the retailer 1st pillar: Premises identification 
2nd pillar: Animal 
identification 
3rd pillar: Animal movement 
identification 
 
7.512.  Although Canada refers to dispensable as pects of the third pillar and Mexico does not 
explicitly adopt these stages, the complainants' general description of the third alternative 
suggests that trace-back would, at a minimum, be  required to maintain some continuity between 
the livestock and meat products being traced, from birth through the slaughter process and up to the point of retail sale.
1134 We note that the United States does not contest the general relevance 
of these phases for trace-back. We therefore adop t the general framework of these distinct stages 
and pillars to assess the trace-back system suggested by the complainants. 
                                               
1130 Appellate Body Report, China – Publications and Audiovisual Products , paras. 327-328. We note that 
the Appellate Body was referring in that case to the respondent's burden under Article XX of the GATT 1994 to show that an alternative measure would impose an  undue burden. See also Appellate Body Report, Korea – 
Various Measures on Beef , para. 181. As acknowledged by Mexico, it is the complainants' burden under 
Article 2.2 of the TBT Agreement to make a prima facie  case that their proposed alternatives are less trade 
restrictive, reasonably avai lable, and make an equivale nt contribution to the objective of the amended COOL 
measure. See Mexico's second written submission, paras. 114-117. 
1131 Canada's second written submission, para. 109. See also Canada's response to Panel question 
No. 62. 
1132 Canada's second written submission, para. 112.  
1133 Canada's second written submission, para. 112. See also Canada's response to Panel question 
No. 57. 
1134 See, e.g. Exhibit CDA-92, p. 6 and Figure 1. WT/DS384/RW • WT/DS386/RW 
 
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  7.6.5.4.1.1  Stage 1: Trace-back from birth to the slaughterhouse 
7.513.  With respect to the first stage of the proposed trace-back system, namely from animal 
birth to the slaughterhouse, the complainants refer to two US traceability programmes: the National Animal Identification System (NAIS) and the 2013 Final Rule on Traceability for Livestock 
Moving Interstate (Interstate Livestock Traceability Rule). 
7.514.  The NAIS was first proposed in 2002 and primarily concerned the protection of commercial 
interests from the potential harm associated  with the outbreak of an animal disease.
1135 To this 
end, the NAIS aimed "to achieve the ability to id entify and trace animals of interest within 48 
hours of an animal disease problem" with "rapid access to reliable and complete data on both animal ID and movement history".
1136 Further, "[t]o collect the requisite information, NAIS was 
composed of three sequential components – premises registration, animal identification, and 
animal tracking."1137 This "was based on a state-federal-industry partnership", and that, while 
some states mandated some components of animal identification, "at the federal level, NAIS was a voluntary program".
1138 
7.515.  In 2010, the USDA decided "to replace NAIS with a more flexible, state-based program 
that mandates traceability only for livestock moving in interstate commerce."1139 The result was 
the Interstate Livestock Traceability Rule under which, "unless specifically exempted, livestock 
belonging to species covered by the regulations that are moved interstate must be officially 
identified and accompanied by an interstate certificate of veterinary inspection or other documentation."
1140 According to the United States, the Interstate Livestock Traceability Rule 
"represents a significantly more modest approach to the problem than the previously contemplated 
[NAIS]".1141 Generally speaking, the Interstate Livestock Traceability Rule currently creates 
traceability for an animal's movement between the slaughter facility and the state the animal was in at 18 months of age.
1142 
7.516.  For the general costs of the first stage of trace-back, the complainants refer to cost 
assessments related to each of these traceabili ty programs. Canada argues that it has been 
documented that implementing full animal traceability under the NAIS would have added about 
USD 5.97 per head to the costs of cattle, an d USD 0.06 per head to the costs of hogs.1143 In total, 
implementing NAIS was estimated to cost the fe deral government of the United States between 
USD 23.8 and 33 million annually. The same estimate concluded that the cost would be partially offset by direct benefits in the form of cost savings achieved through NAIS. Further, NAIS would 
have provided the government with "an array of 'indirect benefits' that are difficult to empirically 
value".
1144 Full traceabilit y, that is to say 100% NAIS participation, would have cost around 
USD 210 million annually to the US cattle industry  and USD 6.4 million a nnually to the US hog 
industry.1145 Put in perspective, Canada argues, this re presents less than a quarter of 1% of the 
retail value of US beef products.1146 
7.517.  Mexico submits a summary of an economic  analysis conducted by the USDA to assess the 
economic impact of implementing the Interstate Livestock Traceability Rule on the cattle 
industry.1147 This analysis combined compliance costs with official identification and interstate 
movement documentation components of the rule, concluding that "annual incremental costs 
                                               
1135 See Exhibit CDA-92, p. 13; United States' response to Panel question No. 63, para. 145. 
1136 Exhibit CDA-92, p. 13. 
1137 Exhibit CDA-92, p. 13. 
1138 Exhibit CDA-92, p. 11. 
1139 Exhibit CDA-92, p. 11. 
1140 Interstate Livestock Traceability Rule, p. 2040. 
1141 United States' response to Panel question No. 62, para. 135. 
1142 United States' response to Panel question No. 62, paras. 136-137. 
1143 Canada's second written submission, para. 124 (citing Exhibit CDA-133, pp. 68 and 98). 
1144 Canada's second written submission, para. 132 (citing Exhibit CDA-133, pp. 143 and 184) 
1145 Canada's second written submission, para. 133 (citing Exhibit CDA-133, pp. 71 and 100). According 
to the study, the USDA admits that the estimates are likely higher than what actual costs would have been. See Exhibit CDA-133, p. xiii. 
1146 Canada's second written submission, para. 133; and comments on the United States' response to 
Panel question No. 63, para. 96. 
1147 Exhibit MEX-86. WT/DS384/RW • WT/DS386/RW 
 
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  would range from a total of USD 5.5 million to USD 7.3 for producers who combine official 
identification eartagging with current management activities, to USD 14.5 million to USD 34.3 million for producers who would handle their cattle solely for compliance with the regulation, or a cost per animal range from USD 0.18 to USD 12.18."
1148 According to the USDA, the estimated 
cost was minimal and represented only a "small fraction" of the value of US cattle and calf 
production, which was estimated at USD 31.8 billion in 2009.1149 
7.518.  With respect to the specific sub-compon ents (three pillars) of the first stage, the 
complainants do not advance explanations or data on the costs for implementing premises 
identification, i.e. the first pillar of the first st age of the proposed trace-back system. As to the 
second pillar of the first stage, Canada notes th at the USDA observed that implementing a single 
ear tag approach to comply with animal identification requirements under the Interstate Livestock 
Traceability Rule could be cost-efficient to producers, as evidenced by other countries' practice.1150 
For the third pillar, Canada points out that the NAIS involved tracking animal movements in one of the NAIS-compliant animal tracking databases.
1151 Canada also claims that tracking cattle 
movements is not as costly as the United States portrays it, and that tracking cattle movements 
under the NAIS was estimated to represent at most one fifth of the costs associated with implementing the NAIS for the cattle industry.
1152 
7.519.  In response, the United States points out that the NAIS analysis referred to by Canada 
only provides an assessment of an existing and limited voluntary system. According to the United States, the analysis assesses only the direct costs of replacing the existing tagging and branding systems with an electronic system. More over, the NAIS was limited to identifying animals 
only from birth to slaughter, where identification is maintained through carcass inspection.
1153 
The United States also questions the relevance of the Interstate Livestock Traceability Rule based on the fact that its costs are incurred primarily by ranches and feed lots as opposed to 
downstream entities such as slaughter facilities, processors, and retailers.
1154 The United States 
notes that the costs of a trace-back system would be substantially greater for its cattle than its hog industry. The former is far more complex than the latter, requiring the tracking of each 
individual head of cattle. By contrast, the hog indu stry is far more integrated and trace-back could 
be based on batches of swine instead of individual animals.
1155 According to the United States, this 
would mean that 90% of the costs of the NAIS would fall on its cattle industry.1156 
7.520.  We recall the complainants' argument that the third alternative measure would eliminate 
the need to segregate livestock and muscle cuts according to country of origin. The Interstate 
Livestock Traceability Rule may give support to this contention as regards livestock. As the United States explains, under the Interstate Livestock Traceability Rule, "there is no need to 
physically segregate different animals as all covered animals have an official identification number 
on an ear tag (or through some other means)."
1157 Further, the United States adds that "[a]t the 
time the animal receives its identification number, all animals are treated the same, regardless of 
whether any particular animal has spent time outside the United States previously."1158 
                                               
1148 See Exhibit MEX-86, p. 1; and Mexico's response to Panel question No. 62, para. 139. In connection 
with the fourth alternative measure, Canada cites cost estimates provided in the final Interstate Livestock 
Traceability Rule that differ slightly from the estimate s for the proposed rule relied upon by Mexico. For 
example, according to Interstate Livest ock Traceability Rule, "[t]he combined annual costs of the rule for cattle 
operations of official identification and movement documentation will range between $14.5 million and $34.3 million, assuming official identification will be underta ken separately from other rout ine management practices; 
or between $10.9 million and $23.5 million, assuming that tagging will be combined with other routine management practices that require working cattle through a chute." Interstate Livestock Traceability Rule, p. 2041. 
1149 Mexico's response to Panel question No. 62, para. 139. 
1150 Canada's comments on responses to  Panel question No. 68, para. 108. 
1151 Canada's second written submission, para. 124. 
1152 Canada's second written submission, para. 127 (citing Exhibit CDA-133, pp. 69-70). 
1153 United States' second written submission, para. 134. 
1154 United States' response to Panel question No. 62, para. 144.  
1155 United States' response to Panel question No. 65, para. 153. 
1156 United States' first written submission, para. 192. 
1157 United States' response to Panel question No. 62, para. 140. 
1158 United States' response to Panel question No. 62, para. 141. With respect to the Interstate 
Livestock Traceability Rule, it was noted that "[t] his rulemaking does not affect our import/export 
 WT/DS384/RW • WT/DS386/RW 
 
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  7.521.  However, the trac eability of interstate animal moveme nts under the Interstate Livestock 
Traceability Rule differs substantially from the type of trace-back system contemplated in the 
complainants' third alternative measure. As pointed out by the United States, the Interstate Livestock Traceability Rule provides for notable exceptions from the requirement that animals 
moving interstate have an official identification number and be accompanied by an interstate 
certificate of veterinary inspection (ICVI)
1159 or other document.1160 Apart from the limitation of 
coverage to animals moving interstate, the Interstate Livestock Traceability Rule exempts cattle 
intended for slaughter that are under the age of 18 months from the requirement to have an 
official identification number.1161 Further, the United States notes that "animals that are 'moved 
directly to a recognized slaughtering establishment' (which includes all animals imported for immediate slaughter) are exempt from the system en tirely in that they do not need an official 
identification number or an ICVI".
1162 
7.522.  Given these differences, th e evidentiary value of the Inters tate Livestock Traceability Rule 
is at best limited in respect of the implementa tion and the potential costs of the complainants' 
third alternative measure. The Interstate Livestock Traceability Rule represents only a fragment of 
the first stage of trace-back, unlike the more comprehensive trace-back from animal birth to retail muscle cut under the complainants' proposal. Inde ed, Canada acknowledges that the Interstate 
Livestock Traceability Rule framework "would be insufficient for the first stage of a trace-back 
system (i.e. the three pillars of an identifica tion and traceability system for livestock)".
1163 
Consistent with the narrower scope of the Interstate Livestock Traceability Rule, the United States indicates that its "regulatory impact analysis estimated the incremental costs of additional 
measures associated with the interstate traceability requirements for all dairy cattle and beef 
cattle at age 18 months or older."
1164 
7.523.  Further, the Interstate Livestock Tracea bility Rule does not appe ar to provide origin 
information on US livestock imports in Categories B and C. For Category B, as mentioned, the 
average age at which Category B feeder cattle are imported into the United States is typically within the first year of their lives (before they are 18 months old). By tracking only interstate 
movements long after animals have been in the United States, the Interstate Livestock Traceability 
Rule does not provide information on a relevant portion of the animal's life history. Canada states that "the USDA has confirmed that feeder cattle (cattle under 18 months of age) 'will be subject to the official identification requirements in a future rulemaking'. It is Canada's understanding that 
the program will apply to all ages of cattle as of 2015."
1165 At the same time, in asserting that that 
"the costs could not be greater than the estimate d costs under the NAIS", Canada recognizes that 
"the costs of covering these animals [i.e. animal less than 18 months older] under the [Interstate 
                                                                                                                                               
requirements. While brands may be used as official iden tification for cattle moving interstate in accordance 
with the provisions of this final rule , the branding of imported cattle from Canada and Mexico is not intended to 
provide official individual identification, but is rather a permanent mark used to designate the country that exported the animal." Interstate Livestock Traceability Rule, p. 2048. 
1159 Under the Interstate Livestock Traceability Rule, the ICVI is defined as "[a]n official document 
issued by a Federal, State, Tribal, or accredited veterina rian certifying the inspection of animals in preparation 
for interstate movement", and further required to show inter alia "the species of animals covered by the ICVI; 
the number of animals covered by the ICVI; the purpos e for which the animals are to be moved; [and] the 
address to which the animals are destined". See Interstate Livestock Traceability Rule, § 86.1. 
1160 See United States' response to Panel question No . 62, para. 139; Interstate Livestock Traceability 
Rule, § 86.5(c).  
1161 See United States' response to Panel question  No. 62, para. 139 (citing Interstate Livestock 
Traceability Rule, § 86.5(c)(7)(ii)). According to the United States, "[t]here was significant opposition by the U.S. cattle industry to extending the traceability regime back to birth." United States' response to Panel question No. 62, footnote 126 (citing Interstate Livestock Traceability Rule, p. 2047: "Other commenters stated that the sheer number of animals that will be  required to be identified and tracked under these 
regulations will make including feeder cattle very costly  for producers, veterinarian s, sale barns, and State 
agencies and that the volume of in formation that will need to be gene rated may swamp the whole system, for 
no significant benefit."). 
1162 See United States' response to Panel question  No. 62, para. 139 (citing Interstate Livestock 
Traceability Rule, § 86.5(c)(1) and (7)(i)). 
1163 Canada's response to Panel question No. 64, para. 160. 
1164 United States' response to Panel question No. 62, para. 143 (citing Exhibit US-55). 
1165 Canada's response to Panel question No. 74, para . 183 (citing Interstate Livestock Traceability Rule, 
p. 2047 and Exhibit CDA-127, p. 32).  WT/DS384/RW • WT/DS386/RW 
 
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  Livestock Traceability Rule] are not known to Canada".1166 Mexico does not directly address the 
implications of extending traceability to Category B livestock imports for the relevance of its cost assessments and implementation of the first stage of trace-back.
1167 
7.524.  The evidence before us also suggests that Category C cattle would fall into the Interstate 
Livestock Traceability Rule's exemption for animals "moved directly to a recognized slaughtering 
establishment".1168 Canada states that "[e]ven if an ICVI is not required for cattle moved directly 
to a slaughterhouse, such cattle must be accompanied by an 'owner-shipper statement'."1169 
Although the "owner-shipper statement" is defined in such a way as to include potentially relevant 
origin information, Canada only argues the applicability of such information in the context of its fourth alternative measure, without indicating whether and how it would serve for the third alternative. Mexico does not address the tracking of animals imported for immediate slaughter in 
connection with the third alternative's implementation or cost estimates. 
7.525.  To the extent that the complainants adduce  cost estimates based on a traceability system, 
such as the Interstate Livestock Traceability Rule, that does not apply to the majority of imported 
animals in Categories B and C, such evidence is of limited assistance in assessing an alternative 
measure designed to convey origin information on muscle cuts derived from such animals. Like the first two alternatives, the complainants' third alternative measure would cover all muscle cuts from 
US-slaughtered animals, including animals born and/or raised outside the United States. While the 
NAIS may have extended to such animals, we  note the program's voluntary nature, and the 
limited participation in its premises registration. In light of the complainants' limited arguments in this regard, we are unable to ascertain the relevance of the Interstate Livestock Traceability Rule 
and the NAIS for the implementation and costs of  the first stage of their third alternative. 
7.526.  With regard to the specific sub-divisions of the first stage, the complainants provide only a 
partial description, particularly as to what the first and third pillars would consist of and how they 
would be implemented. For the first pillar, neither complainant has explained the exact manner of 
premises identification to be included in the third alternative measure. 
7.527.  For the third pillar, Canada states that fu ll implementation of anim al movement traceability 
would not be necessary because not all animal movements are relevant.
1170 Canada explains that 
"the system would only need the reporting of the bi rth of an animal on a farm and the presence of 
an animal on a farm or feedlot where it is bein g raised" to provide information on where livestock 
were born, raised, and slaughtered.1171 In response to the Panel's request for clarification, Canada 
addresses the dispensability of the third pillar with respect to its own traceability system: "for the 
purpose of fulfilling the United States' objective and in order to make a trace-back system in the United States non-discriminatory and less trade-restrictive than the amended COOL measure, the 
third pillar of Canada's  system for cattle may not be strictly necessary."
1172 
                                               
1166 Canada's response to Panel question No. 74, para . 183. While this is presumably based on the fact 
that the NAIS envisaged complete first-stage traceability, it takes no account of the voluntary nature of the 
NAIS nor the limitations of the NAIS costs assessme nts put forward. See United States' second written 
submission, para. 134 (asserting that the NAIS cost anal ysis evaluated "only 'direct' costs of changing the 
tagging and branding systems in place to an electronic system" and that identification was only "maintained 
through carcass inspection") and para. 151. See also Exhibits CDA-133 and CDA-92, p. 22. 
1167 Similar to Canada, Mexico states that "rule-maki ng concerning traceability  for this category of 
livestock is expected in the near future". Mexico's response to Panel question No. 63, para. 136. 
1168 See para. 7.241 above. 
1169 Canada's comments on the Unit ed States' response to Panel qu estion No. 63, para. 99 (citing 
Interstate Livestock Traceability Rule, § 86.5(c)(1)). Canada additionally notes that an "owner-shipper statement" is defined as "[a] st atement signed by the owner or sh ipper of the livestock being moved stating 
the location from which the animals are moved interstate; the destination of the animals ; the number of 
animals covered by the statement; the species of animal covered; the name and address of the owner at the time of the movement; the name and address of the shippe r; and the identification of each animal, as required 
by the regulations, unless the regulations specifically provide that the identification does not have to be recorded". Canada's comments on th e United States' response to Pane l question No. 63, para. 99 (citing 
Interstate Livestock Traceability Rule, § 86.1) (emphasis by Canada). 
1170 See para. 7.511 above.  
1171 Canada's second written submission, para. 112.  
1172 Canada's response to Panel question No. 57, para. 130 (emphasis original).  WT/DS384/RW • WT/DS386/RW 
 
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  7.528.  These explanations imply that  the third alternative would require some  form of animal 
movement traceability within the United States for animals raised there for any period of time before slaughter. While Canada refers to tracking "the presence of an animal on a farm or feedlot where it is being raised", it is unclear whether this necessarily extends to every animal movement 
and raising location, or what the cost implicatio ns would be based on the amount of information 
tracked. Moreover, the complainants do not account for whether this has any implications for the comparability of the third alternative to evidence they have put forward regarding other 
traceability schemes, such as the NAIS.
1173 While some unspecified element of the third pillar 
might be dispensable under the first stage, the complainants have not explained what this pillar would consist of in order to provide origin information under their third alternative measure. 
7.6.5.4.1.2  Stage 2: Trace- back at the slaughterhouse 
7.529.  Both Canada and Mexico suggest that there are particular challenges for trace-back after 
the first stage. As acknowledged by Canada, "[t]he essence of a trace-back system is to preserve the link between the animal or group of animals and the meat (i.e. the identity of the meat)".
1174 
According to Canada, "the second stage – the killing  of the animal and the division of the carcass 
into cuts at the slaughterhouse – is the stag e of a trace-back system where most of the 
compliance costs would be entailed."1175 While Mexico does not specifically address the costs 
associating with maintaining traceability in the slaugh ter facility, it also refers to the view of some 
industry participants "that linking the two systems [of animal identification and product tracking] will be difficult and costly".
1176 
7.530.  The United States argues that maintaining individual trace-back for each animal once 
processing has begun, on an industrial scale, would entail dramatic slowdowns in the meat cutting 
process, and would add substantial burdens and costs to retailers and other vendors who would have to associate particular cuts of meat with labels that would correspond to individual 
animals.
1177 According to the United States, the cost analysis commissioned by the USDA, which 
Canada relies upon, evaluates traceability only up to the point of slaughter, which is the least expensive of the three stages of meat production. Thus, the United States claims, neither 
complainant has provided any evidence as to the costs of trace-back during this stage.
1178 
7.531.  The importance of maintaining traceability through the slaughter process illustrates the 
limitations of cost estimates confined to the first stage of trace-back. Although Canada states that linking animal and meat "mostly concerns the seco nd stage of the system" of traceability within 
the slaughterhouse
1179, it notes that the Interstate Livestock Traceability Rule framework "deals 
with traceability for livestock, not meat".1180 This raises doubts as to the utility of referring to such 
existing – or abandoned – systems with a view to obtaining a clear understanding of the third 
alternative measure, particularly if, as Canada says, "the bulk of the costs of a trace-back system 
are incurred at the second stage of the system, i.e. at the slaughterhouse."1181 The same is true of 
a program like the NAIS, which applied only up to the point of slaughter. As a result, the 
traceability systems referred to by the complainants for the description and costs of trace-back 
stop short of bridging the very gap between animal and meat traceability that the complainants' third alternative would have to fill in order to function. 
7.532.  The complainants also refer to examples of non-US trace-back systems in the context the 
second stage of trace-back, specifically regarding the continuity between animal and meat 
                                               
1173 For example, with respect to tracing animal mo vements under the NAIS, it was considered that 
"[t]he minimum traceback information included: the national premises identification number (PIN); the animal ID number (AIN) or group ID number (GIN); the date of the event; and the event itself (e.g., move-in to a 
new premises or move-out of the current premises)." Exhibit CDA-92, p. 17.  
1174 Canada's response to Panel question No. 62, para. 144. 
1175 Canada's response to Panel question No. 42, para. 94 (citing Exhibits CDA-86, p. 32; CDA-89, p. 9; 
and CDA-158, pp. 2-3).  
1176 Mexico's first written submission, para. 210 (citing Exhibit MEX-33, p. 11).  
1177 United States' second written submission, paras. 152 and 154. 
1178 United States' second written submission, paras. 151-152; opening statement at the meeting of the 
Panel, para.51; and comments on re sponses to Panel question No. 42. 
1179 Canada's response to Panel question No. 62, para. 144. 
1180 Canada's response to Panel question No. 62, para. 145. 
1181 Canada's comments on parties' respon ses to Panel question No. 54, para. 87. WT/DS384/RW • WT/DS386/RW 
 
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  identification. Canada states that "[p]reserving that link is done on a country-wide and commercial 
basis in at least two WTO Members, namely Japan and Uruguay".1182 According to Canada, "[w]hile 
there is no single method, Uruguay's system provides a good example of how preserving the link is done from an operational perspective."
1183 Canada also "notes that the operations at the second 
stage of the trace-back system in Uruguay are fina nced by a contribution from market participants 
in the amount of 1 U.S. dollar per animal slaughtered."1184 Mexico also points to trace-back 
systems in the European Union, Korea, Japa n, and Uruguay, noting that "Uruguay has 
implemented a comprehensive trace back system which allows tracking livestock and the meat 
derived from those animals".1185 
7.533.  The complainants' references to other trace-back systems do not always clearly separate 
the second and third stages, and appear to be made for the more general illustration of 
maintaining the link from animal birth to retail sale. Therefore, some of this evidence may be 
understood to have potential relevance for both the second and third stages of trace-back. We accordingly address other trace-back systems below in connection with any relevant clarification 
they provide as to the overall implementation of trace-back under the third alternative.
1186 
7.6.5.4.1.3  Stage 3: Trace-back from slaughterhouse to retail 7.534.  Canada notes that "[t]he third stage of a trace-back system involves the distributors and 
the retailer. … The distributors and the retailer have to preserve the information about the muscle 
cut, including if further cutting is done."
1187 Mexico foresees that the third alternative measure 
"will cover the production steps after delivery of the animals to the slaughterhouse up to the point 
of sale to the consumer."1188 
7.535.  In addition to these general descriptions, Canada and Mexico both reference the trace-back 
system in Uruguay with respect to the post-slaughter stages of the third alternative measure, again without clear distinction between the second and third stages.
1189 With specific regard to the 
costs of the third stage, i.e. beyond the slaughterhouse, Canada contends that Japan's experience 
shows how the costs of conveying information to consumers under a trace-back system may be borne directly by governments rather than busine sses. According to Canada, bearing the costs of 
correctly conveying information to consumers, for instance by maintaining a website, could reduce 
labelling costs to market participants.
1190 
7.536.  The United States responds that the third stage of trace-back would require each retailer 
to provide consumers with the ability to trace each  individual cut of beef back to an individual 
animal. According to the United States, this would be especially costly for retailers that further 
process and cut the meat they receive from slaugh terhouses, as such retailers would need to set 
up potentially complicated processes to ensure that each cut that was further processed would 
continue to retain traceability.1191 The United States maintains that those procedures would add 
substantial burden to retailers and other vendors, who would have to associate particular cuts of meat with labels that would correspond to the individual animal.
1192 As with the second stage, the 
                                               
1182 Canada's second written submission, para. 117. 
1183 Canada's second written submission, para. 117 (citing Exhibits CDA-95; CDA-96; CDA-97, pp. 6-9; 
CDA-98, pp. 10-11; CDA-104; CDA-105; CDA-106; CDA-131, pp. 49-55). 
1184 Canada's second written submission, para. 124 (citing Exhibit CDA-134).  
1185 Mexico's first written submission, para. 208, (citing Exhibits MEX-41, MEX-42, MEX-43, and 
MEX-44). 
1186 See paras. 7.547-7.549 below. 
1187 Canada's second written submission, para. 118. 
1188 Mexico's response to Panel question No. 60, para. 127. 
1189 See, e.g. Canada's second written submission, para. 118; Mexico's response to Panel question 
No. 42, para. 86 ("For example, in the case of Uruguay,  Canada has provided evidence on the cost of trace-
back from farm to consumer on a per head basis. This includes all states of production and sale.") (citing 
Exhibit CDA-145 (BCI)).  
1190 Canada's comments on parties' responses to Panel question No. 68, para. 107. 
1191 United States' second written submission, para. 152. 
1192 United States' second written submission, para. 154. WT/DS384/RW • WT/DS386/RW 
 
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  United States argues that neither complainant provides estimates or adequate evidence of the 
costs incurred in later stages leading to retail.1193 
7.537.  Given the complainants' treatment of the se cond and third stages in their descriptions of 
trace-back, we address the third stage and the re levance of other trace-back systems below in 
connection with the overall implementation of  trace-back under the third alternative. 
7.6.5.4.1.4  Overall implementa tion and costs of trace-back 
7.538.  The complainants' evidence and arguments le ave significant gaps as to the three separate 
stages that would need to be linked under the third alternative measure. As noted, for the first 
stage, the complainants cite certain traceability programs within the United States that have more limited coverage and applicability than that required under the third alternative measure. The complainants' point to more comprehensive trace-back schemes in other countries, but have 
claimed that these are illustrative of feasibility and not necessarily indicative of the exact trace-
back that would be implemented in the United States. 
7.539.  To obtain an overall view of the implemen tation and costs of a trace-back system within 
the United States, the complainants' description would need to be examined beginning with the 
birth of livestock, including livestock born abroad. In this regard, Canada and Mexico contend that they currently (or imminently in the case of Canadian hogs) have in place traceability systems that 
could supply relevant origin information for animals exported to the United States.
1194 To the 
extent that the third alternative covers muscle cuts  from all US-slaughtered animals, this may be 
relevant for a complete review of the implementation of a comprehensive US trace-back system for such muscle cuts. However, we are not in a position to carry out such a review, given the 
uncertainties in the complainants' description of trace-back following the animals' entry into the 
United States. 
7.540.  We understand from the complainants' de scriptions that the third alternative could be 
implemented in the United States through a variety of different tracking technologies and 
informational systems. For example, Canada states that its own identification and traceability systems will provide relevant origin information through individual ear tag numbers for live cattle 
and group tattoo numbers for hogs up to the point of export. According to Canada, "[t]his number 
could be transferred to the US system electronically, depending on an electronic system being in place in the United States to receive the data."
1195 Canada further argues that "[t]here is no 
indication that the cost of transferring the origin information from Canada to the United States 
would be higher than the costs of linking any data base established by the United States under the 
first phase of a trace-back system with any database established by it under the second or third phases of a trace-back system."
1196 Similarly, Mexico explains that applicable rules already require 
that its cattle exports bear an ear tag "that can be used to trace the animal, including the State of 
origin, the ranch which the cattle belongs to, and complete information about its producer".1197 
Mexico states that "[t]here are many methods of animal identification and traceability available 
today, for example, ear tags and electronic methods".1198 
                                               
1193 United States' second written submission, paras. 151-152; opening statement at the meeting of the 
Panel, para. 51; and comments on re sponses to Panel question No. 42. 
1194 Parties' responses to Panel questions Nos. 58-59.  
1195 Canada's response to Panel question No. 59, para. 136. Canada further notes that "the USDA 
(APHIS), too, observed that a single eartag to co mply with animal identification requirements under 
the Final Rule on Traceability could be cost-efficient to  producers". Canada's comments on the United States' 
response to Panel question No. 68, para. 108 (citing Interstate Livestock Traceability Rule, p. 2058: "Additionally, within beef operations, over 60 percent of calves had some form of individual identification. […] 
Additionally, with an array of official eartags, pr oducers may choose a single eartag that meets both 
management and official identification needs. This opti on would make the additional cost of official eartags 
quite small."). 
1196 Canada's response to Panel question No. 59, para. 137. 
1197 Mexico's first written submission, para. 211. 
1198 Mexico's first written submission, para. 209. WT/DS384/RW • WT/DS386/RW 
 
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  7.541.  We note that ther e are a number of methods of animal id entification – the second pillar of 
the first stage of trace-back – with potentially varying costs.1199 The NAIS cost analysis referenced 
by Canada made certain assumptions as to the type of identification system used. For instance, "[i]n the cattle (bovine) industry, it was assumed the technology used for animal identification 
would be electronic identification (eID) using Radio Frequency Identification (RFID) ear tags and 
identification would be on an individual animal basis."
1200 For swine, the study "assumed market 
hogs would be identified with a group/lot ID and cull breeding stock would be identified with a 
unique visual premises ear tag".1201 Any resulting cost estimates may be of assistance only to the 
extent the complainants' third alternative adopte d these and other operational assumptions, but 
would not be directly or at all comparable to, an d hence relevant for, any trace-back system that 
employed other means. The complainants do not specify whether and to what extent their third 
alternative would incorporate such operational assumptions used with respect to other traceability 
programs. 
7.542.  A further difficulty of assessing the overall implementation and costs of the third 
alternative arises with respect to the retrieval and management of trace-back information. 
Canada's description of the third alternative measure envisions the possibility of establishing some form of "database".
1202 According to the United States, "[a]t present, there is no searchable 
electronic data base at the national level" and "[t]he vast majority of states do not have 
searchable electronic databases either".1203 Traceability of animal movements under the Interstate 
Livestock Traceability Rule occurs "by following the paper trail that animal has created through ICVI's that are on record in the livestock facilities that the animal has resided in."
1204 While Canada 
points to certain mechanisms that could facilitate the management of information under a trace-
back regime1205, it leaves unclear the manner of data storage, management, and retrieval – as 
well as related costs – that would form part of the third alternative. For its part, Mexico discusses 
its own readiness to export cattle equipped for trace-back purposes1206, but does not explain the 
sort of information tracking and storage that would exist within in the United States through later stages of its third alternative measure. 
7.543.  Both complainants seem to distinguish tr ace-back from the COOL recordkeeping and audit 
requirements. In particular, they contend that the COOL statute's prohibition of a mandatory 
identification system necessitates use of the la tter at the expense of Canadian and Mexican 
                                               
1199 One source notes that that, apart from branding, "[ o]ther methods of animal identification include 
tattooing, retina scanning (Optibrandin g™), iris imaging, and, currently the most common method, tagging. 
Tags may have simple printed numbe rs, imbedded microchips, or machine- readable codes, such as radio 
frequency identification (RFID). Ear ta gs cost in the neighborhood of $1 or $2 apiece. RFID technology is more 
costly, with instruments for reading RF ID tags costing several hundred dollars  apiece, though prices have been 
rapidly falling." Exhibit CDA-86,  p. 28. Anothe r source refers  to "tags, radio frequency identification devices, 
and other ID devices" capable of be aring "a unique, 15-digit" animal id entification number. Further, "[i]n 
recent years, the use of RFID devices and injectable tr ansponders with information that is read by scanners 
and fed into computer databases is becoming more co mmon, because these devices allow for faster, easier 
access to information." Exhibit CDA-92, p. 16. 
1200 Exhibit CDA-133, p. 8. 
1201 Exhibit CDA-133, p. 8. See also Exhibit MEX-86. 
1202 See Canada's response to Panel question No. 59, para. 137. 
1203 United States' response to Panel question No. 62, para. 137. 
1204 United States' response to Panel question No. 62, para. 137. As the Interstate Livestock Traceability 
Rule relies on the "paper trail" of ICVIs on record in  livestock facilities or anim al identification by other 
documents created in the ordinary course of business, the United States explains that "the current traceability 
regime for animal movement s is considered a 'book end' system." See United States' response to Panel 
question No. 62, footnote 128. 
1205 Canada notes that "APHIS provides information sy stems that the states and tribes may use at no 
charge" and "[a] state or tribe may also decide to develo p its own system". Canada's comments on the 
United States' response to Panel ques tion No. 62, para. 89 (citing the Inte rstate Livestock Traceability Rule, 
p. 2059). Canada further states that "[u]nder the NAIS, a producer would select one of the NAIS-compliant animal tracking databases (ATDs) maintained by states  and private industry to re port the movements of an 
animal. The USDA would operate a 'portal system' to enable  health official to submit  requests for information 
to the administrators of the ATDs. Thus, there was no single database. However, that would not have been an obstacle to an efficient traceability  system for livestock (the first stag e of a trace-back system)." Canada's 
comments on the United States' response to Panel question No. 63, para. 93 (footnotes omitted). 
1206 See Mexico's responses to Panel questions Nos. 57-59.  WT/DS384/RW • WT/DS386/RW 
 
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  livestock.1207 However, there are indications that these systems might not be so clearly 
dichotomous, as the complainants' explanations suggest that the third alternative measure could 
entail elements of recordkeeping and audit simi lar to that under the amended COOL measure.1208 
For example, Canada describes mitigation of tr ace-back costs through reducing the amount of 
label information, but states that "market participants would nevertheless have to be able to 
demonstrate, if audited, that a muscle cut derives from an animal (or group of animals) that was born, raised and slaughtered at a specific location (farm, feedlot, slaughterhouse)."
1209 Thus, we 
understand that the third alternative measure could possibly require audit capability of records for 
even more information than that required under  the amended COOL measure, with possible cost 
implications that the complainants do not address.1210 Ultimately, the complainants' explanations 
do not resolve these basic questions, and leave us  in doubt about the existence, amount, manner, 
and resulting costs of recordkeeping and au dit under the third alternative measure. 
7.544.  The lack of clarity on the complainants' third alternative measure is compounded by their 
explanations of the eventual muscle cut labels. Fo r example, Canada states that the label "would 
provide consumers with information, not only in respect of country of origin, but on the precise 
name and location of the farm, feedlot and processi ng facility (i.e. state/province, municipality, or 
specific address)."1211 Canada further describes the following  labelling flexibility as follows: 
Under a trace-back system, the label could indicate the precise name and address of 
the farm, feedlot and processing facility where each of the production steps took 
place. However, the costs of labelling could be mitigated by reducing the information conveyed on the label. The labelling requir ements under a trace-back system could be 
the same as those under the amended COOL measure.
1212 
7.545.  Mexico similarly proposes that the third alternative could provide detailed information on 
where the animals were born, raised, and slaughtered1213 as follows: 
[A] "Product of U.S." or similar label that is  based on a "born, raised and slaughtered" 
rule will be permissible under this alternative as well as the more detailed information on where the animal was born, raised and slaughtered. This [third] alternative 
provides the United States with flexibility in establishing the labeling conditions.
1214 
7.546.  Both complainants thus frame their third alternative in flexible terms as to what 
information the label would convey to consumers. At the same time, the complainants seem to presuppose that the trace-back system would entail tracking more detailed information than under 
the amended COOL measure, irrespective of the information actually labelled. Ultimately, 
the complainants do not explain whether and to what extent the method and costs of traceability across the three stages of trace-back would depend  on the information being labelled. Nor do they 
                                               
1207 See Canada's first written submission, paras. 172 and 178; Mexico's first written submission, 
paras. 202-203 (both citing Hayes and Meyer paper, p. 7). 
1208 In this connection, we note that the Hayes an d Meyer paper refers to "some mixture of both 
systems". Hayes and Meyer paper, p. 8. In addi tion, the paper factors the costs of "labels, additional record 
keeping, audit compliance  and labor" into its trace-back costs estimates. Hayes and Meyer paper, p. 9 
(emphasis added). 
1209 Canada's second written submission, para. 120 (emphasis original). 
1210 Such recordkeeping burdens would likely extend throughout the entire supply chain, as "the 
ultimate disposition of a meat product is often not know n at any particular stage of the production chain". See 
para. 7.272 above; Appellate Body Reports, US – COOL , para. 344. As stated by the Hayes and Meyer paper 
with respect to the US pork industry, "all pork sold thro ugh US retailers will have to be identified and traced. 
Since it is not likely that 'retail' and 'foodservice' prod uction systems will be segreg ated, all U.S. born, raised 
and slaughtered pork (since any of it  may enter the retail channel), and al l pork from feeder pigs or slaughter 
pigs imported from Canada would be subject to  traceback." Hayes and Meyer paper, p. 9.  
1211 Canada's first written submission, para. 169. 
1212 Canada's second written submission, para. 120 (footnote omitted). Canada adds that "[i]nstead of 
displaying all the information on the label, the label could instead contain a bar code that consumers could 
scan using a scanner made available in the store. Another po ssibility is to put an identification number on the 
label, as in Japan, to allow consumers to obtain the information through a website, which they could access in the store with their smartphones." Canada's second written submission, para. 120, footnote 208. 
1213 Mexico's first written submission, para. 206.  
1214 Mexico's first written submission, para. 207. See also Mexico's second written submission, 
para. 138. WT/DS384/RW • WT/DS386/RW 
 
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  clarify the implications of any differences between the information kept in the supply chain and 
eventually conveyed to consumers under their third alternative. 
7.547.  Finally, the various foreign trace-back systems referred to by complainants do not explain 
how these are meant to elucidate the implementati on of trace-back in the context of the US 
livestock and meat market. Third parties to this dispute with trace-back systems cited by the 
complainants have cautioned against drawing undue comparisons between the regimes adopted by different Members.
1215 These third parties have also provided descriptions of their trace-back 
systems1216, in some cases revealing potentially important differences from the complainants' third 
alternative measure and its requirement of verifiable  trace-back from the birth of an animal to the 
retail sale of its muscle cut meat.1217 
7.548.  In other cases, such as the trace-back sy stem of the European Union, continuity across the 
three stages appears to be maintained1218, but the complainants do not account for how certain 
                                               
1215 Australia notes "that the information from third part ies may inform the Panel as to other trace-back 
practices", but that "the subject of these proceedings is  the compliance of measures applied by the US and not 
measures and systems in place in other WTO member countries." Australia's response to Panel question No. 68. The European Union avers that "simply because a measure is reasonably available to one Member that 
does not necessarily mean th at it is reasonably available to another Member, within the meaning of Article 2.2 
of the TBT Agreement and/or that it fulfils the level of  protection chosen by the Member concerned." European 
Union's response to Panel question No. 68, para. 46. New Zealand states that "while the [its trace-back] 
scheme works well for New Zealand’s purposes and in the New Zealand context, New Zealand is unable to 
comment on the extent to which this experience can info rm the reasonable availabili ty of a trace-back measure 
in the United States to provide origin information to consumers." New Zealand's response to Panel question 
No. 68, para. 8. Japan states that "[s]ince production  and distribution systems vary from country to country, 
we are not in a position to be able to express a view re garding the extent to which Japan’s Cattle Identification 
and Traceability System corresponds to the complainants ' suggested trace-back system and in what way, if 
any, it could be releva nt for the reasonable availability of the tr ace-back system." Japan's response to Panel 
question No. 68. 
1216 For example, Australia explains that it has in place the "National Livestock Identification System 
(NLIS)" "for the identification and traceability of catt le, sheep and goats. The NLIS  is a centralised system 
which records movement of livestock through the supply chain from farm to  slaughter." This system entails 
premises identification of "livestock producing properties, saleyards and aba ttoirs" and animal identification by 
means of "individual electronic identification devices (ear tags and/or rumen boluses) fo r cattle". Traceability to 
premises is maintained during slaughter and "carcasses are identified … enabling the continuation of traceability throughout the slaughte r and processing chain." The Australi an Department of Agriculture is 
responsible for supervision and audit activities to verify "effective operation of the systems in place". 
Australia's response to Panel question No. 68. 
In Japan, "the Cattle Traceability Act stipulates th at it is obligatory to record cattle’s information 
including the date of birth and movement history of each  animal for the purposes of preventing the spread of 
BSE and promoting the provision of individual identification information." This includes requirements for "producers to report the movement history information of each animal at every stage, from its birth to 
slaughter" to an independen t administrative agency. These "reports must contain each animal's individual 
identification number, date of birth or date of importatio n, sex, species, individual identification number of its 
mother, information of its movement (the farm(s) that raised the animal), date of movement, and date of 
slaughter, death or export." Cattle ar e equipped with ear tags with their identification number when they are 
born or imported. "After cattle are slaughtered, th e package of beef product must show the individual 
identification number of the animal the beef is deri ved from down to the retail stage." Consumers can access 
the animal's information by searching the identification number on a design ated website. Japan's response to 
Panel question No. 68. 
1217 Australia repeatedly refers to food and product safety as elem ents of its trace-back system, 
including in connection with animals "that may pose a bios ecurity or health risk" and declarations of "essential 
information about the food safety status of the livest ock". Australia's response to Panel question No. 68. 
New Zealand explains that it "has a Na tional Animal Identification and Trac ing (NAIT) scheme that provides for 
traceability from birth to death or live export of animals". This scheme  is mandatory for cattle and is 
administered by a company owned by various industry  bodies. New Zealand's resp onse to Panel question 
No. 68, para. 1. New Zealand notes that its NAIT scheme  covers the three pillars of the first stage of trace-
back. New Zealand's response to Panel question No. 68,  para. 6. However, "[a]s to the second and third 
stages, the NAIT scheme is not designed to provide tr aceability past death or live export." New Zealand's 
response to Panel question No. 68, para. 6.  
1218 The European Union explains that  its regulations require "the es tablishment of a system for the 
identification and registration of bo vine animals, including a computerised database. Animals are identified by 
an ear tag applied to each ear for life, with the same unique code establishing the birth place. Each moving 
animal is accompanied by a passpor t and its movements registered. A co mpulsory label for beef indicates 
where the animal from which the beef is derived was born, fattened and slaughtered. … Beef from third countries must at least be labelled as non-EU origin, to gether with the place of slaughter." The European Union 
 WT/DS384/RW • WT/DS386/RW 
 
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  features, such as the use of "batch traceback", would be applied in the United States under the 
third alternative measure.1219 There is also evidence to question the general comparability of 
conditions in the European Union and the United  States for the implementation of trace-back. 
For instance, the Hayes and Meyer paper, which the complainants invoke, refers to several 
"key advantages" in the European Union for the implementation of trac e-back, including prior 
mandatory animal identification, smaller EU plant size and slower line speeds, and other particular features of the EU pork industry.
1220 
7.549.  Similarly, we understand the complainants' references to the trace-back systems of Japan 
and Uruguay as being made for the general proposition that trace-back through the stages of animal, carcass, and muscle cut is feasible.
1221 The complainants do not cite any particular 
similarity between the livestock and meat industri es of the different countries, nor do they adopt 
any concrete features of these systems for their third alternative. While the complainants have 
disputed the cost implications of the differing features of the United States' industry1222, their 
abstract reliance upon the examples of foreign tr ace-back systems provides little if any clarity 
about the proposed trace-back system to be implemented in the United States. 
7.550.  As regards costs in general, it is clear that the complainants' third alternative would 
impose costs on the affected industries and regulatory authorities involved in any trace-back 
system. The complainants nonetheless contend that these costs are within the reach of the 
United States as a responding Member for the purposes of Article 2.2 of the TBT Agreement. Canada asserts that "[i]t is technically and economically feasible to establish a trace-back system in the United States. Trace-back systems exist in other WTO Members. A trace-back system is, 
therefore, a reasonably available alternative measure."
1223 Mexico similarly asserts that "the Hayes 
and Meyer Paper suggests that trace-back is technically and economically feasible in the United States and, therefore, is a reasonably available alternative."
1224 
7.551.  However, 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. Nor 
                                                                                                                                               
has also proposed indicating the country of origin or  place of provenance for pork that would provide for 
"identification and regi stration ensuring the link between the meat  and the animal or group of animals from 
which it was obtained, and the tran smission of such information from the slaughterhouse to consumers." 
European Union's response to Pane l question No. 68, paras. 44-45. 
1219 According to one source, this is used by EU retailers and processors  who "typically do not make any 
attempt to maintain the identity of the meat as it is  broken down into retail packs." The Hayes and Meyer 
paper discusses this in contra st to further tracing of "an individual piec e of meat back to the original passport" 
and "a bar codded tag for each individual retail cut … placed manually on the pack". Hayes and Meyer paper, 
p. 9. The European Union states that  "[i]n principle, a batch may have been raised in no more than one 
country and slaughtered in no more th an one country. The label must state the country or countries of rearing 
and of slaughter. There is a derogation for third countries: the label ne ed only state that the animal was reared 
in a non-EU country, and the country of slaughter." Eu ropean Union's response to  Panel question No. 68, 
paras. 44-45. According to Canada, "[t]hat link is also preserved in the EU, but it is Canada's understanding 
that, while it may be possible to trace a muscle cut of be ef back to an animal or group of animals, it may not 
always be possible to obtain the entire life history of  the animal or group of an imals from the reference code 
(bar code) on the label of a meat package." Canada's second written submission, para. 117, footnote 203. 
1220 Hayes and Meyer paper, p. 9. It also notes that "[ t]he almost universal reliance on the sale of boxed 
products or retail ready packs in the U.S. would forc e packers to adopt the more expensive individual cut 
traceback system".  
1221 We note the United States' position that Uruguay does not have a system that requires consumers 
to be able to trace back particular meat products to the ranch, and that related cost estimates are therefore 
not relevant. United States' comments on response s to Panel question No. 40, para. 117. See also 
United States' response to Panel question No. 54, para. 133, footnote 120 (citing Exhibit CDA-92, p. 41); and Exhibit CDA-131, p. 33 ("The main objective of the SNIG to this day has been to guarantee the individual or 
group traceability of bovine cattle, fro m slaughterhouse to the farm of orig in" and not through retail or to the 
ultimate consumer.)  
1222 The United States contends that both Japan and Uruguay have much smaller industries and have 
different types of production. See United States' se cond written submission, para. 155, and comments on 
responses to Panel question No. 42, para. 127. Canada in particular counters this with its Sumner study on the 
magnitude of trade-restrictive costs. See section 7.6.5. 1.3 above. Mexico cross-refe rs to evidence submitted 
by Canada on the cost of trace-back from farm to co nsumer on a per head basis in Uruguay, but does not 
elaborate on its applicability to the implementation of trace-back in the United States. Mexico's response to 
Panel question No. 42, para. 86 (citing Exhibit CDA-145 (BCI)). 
1223 Canada's first written submission, para. 180 (footnotes omitted). 
1224 Mexico's first written submission, para. 208. WT/DS384/RW • WT/DS386/RW 
 
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  do the complainants elaborate on the manner or cost implications of spanning these stages in the 
United States under the third alternative measure. Canada outlines various forms of cattle and swine traceability that currently exist in the United States but acknowledges that "they are not pieced together in one single national system".
1225 Canada states that it "is not aware of the 
specific costs under each of the programs" it identified at the federal and state levels with various 
forms of traceability.1226 Nevertheless, "Canada understands that the costs of these programs are 
well within the capacity of the United Stat es and of the relevant market participants."1227 Mexico 
cites a Congressional Research Service report from 2005 on the challenges of tracing animal 
identification post-slaughter, which generally refers to linking animal and meat identification while also reflecting the objection of the meat industry that "linking the two systems will be difficult and costly".
1228 
7.552.  In conclusion, the complainants evoke distin ct stages of the third alternative for tracking 
an animal's birth, slaughter, processing, and product labelling.1229 However, the complainants do 
not address each of these stages with sufficient clarity. In fact, the complainants' explanations on 
the implementation and costs of the third alternat ive provide for extensive flexibility both overall 
and for specific stages. As result, we lack a cohesive depiction of the complainants' third alternative measure and the linkages between the various stages of trace-back. 
7.553.  Consequently, the complainants have not sufficiently explained how their third alternative 
measure would be implemented in the United States. In our view, this lack of an adequate identification of the third alternative measure prevents us from undertaking an assessment of this alternative and meaningfully comparing it with  the amended COOL measure as required under 
Article 2.2 of the TBT Agreement. Arguably, on th is ground alone the complainants have not made 
a prima facie  case as to the third alternative measure of  trace-back in the United States. This is 
more clearly borne out under the separate legal elements of the comparative analysis under 
Article 2.2 of the TBT Agreement, which we examine in the following sections. 
7.6.5.4.2  Whether the third alternat ive measure is reasonably available 
7.554.  The Appellate Body has held that, for conducting an assessment of consistency with 
Article 2.2, "[i]n most cases, a comparison of  the challenged measure and possible alternative 
measures should be undertaken".
1230 Further, "it may be relevant for the purpose of this 
comparison to consider … whether it is reasonably available".1231 
7.555.  In the context of Article XX of the GATT 1994 and Article XIV of the GATS, the 
Appellate Body has stated "[a]n alternative measure may be found not to be 'reasonably available' 
                                               
1225 Canada's response to Panel question No. 62, para. 158. 
1226 Canada's response to Panel question No. 62, para. 158. 
1227 Canada's response to Panel question No. 62, para. 158. Canada also references the building of 
"traceability systems to bridge the separate animal and meat tracking systems" in general terms without 
clearly indicating how this would be accomplished unde r the third alternative measure. Canada's first written 
submission, para. 171. In this connection, there is eviden ce suggesting that historical factors have resulted in 
the creation of "two largely distinct sets of traceabili ty systems in the livestock/meat sector: one set for live 
animals and another for meat",  and that the "curre nt challenge for the cattle/bee f sector is to link these 
systems and develop a system for iden tifying farm-level attributes in fi nished meat products". Canada's 
reference to NAIS as a potent ial "building block for a trace-back system to verify designatio ns on labels" would 
similarly cover only a limited portion of the tr ace-back required under the third alternative.  Canada's second 
written submission, para. 111. 
1228 Mexico's first written submission, para. 210 (citing Exhibit MEX-33, p. 11):  
As the extent of traceability increases, so do likely costs. Animal ID prior to slaughter, and product tracking after slaughter and processing, generally now are within practical reach, most 
industry observers agree. Howeve r, the meat industry essentia lly has argued, notably in the 
context of COOL, that linking the two systems will be difficult and costly. Industry officials said 
new costs will be incurred in identifying and segreg ating animals, physically reconfiguring plants 
and processing lines, and labeling and tracking the final products. 
See also Exhibit CDA-92, p. 21. 
1229 See para. 7.511 above. 
1230 Appellate Body Report, US – Tuna II (Mexico) , para. 322. See also Appellate Body Reports,  US – 
COOL , para. 379. 
1231 Appellate Body Report, US – Tuna II (Mexico) , para. 322. See also Appellate Body Reports,  US – 
COOL , para. 379. WT/DS384/RW • WT/DS386/RW 
 
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  … 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."
1232 In EC – Seal Products , the Appellate Body 
further clarified this as follows: 
This passage suggests that the "prohibitive costs or substantial technical difficulties" 
are indeed those associated with the burden placed on a Member. At the same time, however, this language does not foreclose the possibility that there may be other 
indications that the alternative measure is "merely theoretical in nature". As we see it, 
if there are reasons why the prospect of imposing an alternative measure faces significant, even prohibitive, obstacles, it may be that such a measure cannot be considered "reasonably available". We would not exclude a priori  the possibility 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 willi ngness of the industry to comply with the 
requirements of that measure. We theref ore consider that an assessment of the 
reasonable availability of an alternative measure could potentially include the burden on the industries concerned.
1233 
7.556.  The Appellate Body has stated that a part y bearing the burden in the context of the an 
alternative measure's reasonable availability "must support such an assertion with sufficient evidence", and "provide evidence … substantiating the likely nature or magnitude of the costs that 
would be associated with the proposed altern ative, as compared to the current system".
1234 
As noted, the complainants put forward cost estimates that would only partially cover the 
suggested alternative1235, along with trace-back systems of other WTO Members of limited 
evidentiary value in terms of the implementation and costs of the complainants' third alternative 
measure in the United States.1236 We do 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 of these. Nevertheless, we do consider 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 associate costs provided by the complainants in this case. 
7.557.  We therefore find that the complainants have not made a prima facie case that the trace-
back system proposed as their third alternative measure is reasonably available for the purposes 
of their claims under Article 2.2 of the TBT Agreement. 
7.6.5.4.3  Whether the third alternative me asure is less trade restrictive than the 
amended COOL measure 
7.558.  Apart from reasonable availability, the parties also presented views as to the relationship 
between the costs of trace-back and the relative tr ade-restrictiveness of the third alternative. For 
example, Canada contends that "[a] technical regulation that increases compliance costs in a 
non-discriminatory manner, but does not otherwise modify the conditions of competition to the detriment of imported products may nevertheless be 'trade-restrictive' if the cost increase has the 
                                               
1232 Appellate Body Report, Brazil – Retreaded Tyres , para. 156 (quoting Appellate Body Report, US – 
Gambling , para. 308). While these statements were made in the context of necessity under Article XX of the 
GATT 1994 and Article XIV of the GATS, we find them instructive for whether a technical regulation is "more trade-restrictive than necessa ry to fulfil a legitimate objective" un der the TBT Agreement. In the context of 
Article 2.2 of the TBT Agreement, the Appellate Body re called its own precedent that "in order to establish 
'necessity' in the context of Article XX of the GA TT 1994 and Article XIV of the GATS, a comparison of a 
measure found to be inconsistent an d reasonably available less trade-re strictive alternatives should be 
undertaken." Appellate Body Report, US – Tuna II (Mexico) , footnote 645 (citing as an example Appellate Body 
Report, Korea – Various Measures on Beef , para. 166). 
1233 Appellate Body Reports, EC – Seal Products , para. 5.277. 
1234 Appellate Body Report, China – Publications and Audiovisual Products , paras. 327-328.  
1235 See section 7.6.5.4.1.1 above. 
1236 It is also unclear how much more costly trace-ba ck would be for cattle and beef as compared to 
hogs and pork. It has been noted that "the cattle indu stry is expected to bear the brunt of the costs of 
implementing a national ID program, in large part beca use each individual animal will have to be tagged, 
unlike in the large, vertically integrated pork and po ultry industries, where animals are usually raised and 
moved in lots". Exhibit CDA-92, pp. 10-11. See also Exhibits CDA-86, p. 33; CDA-89  and MEX-37, p. 7.  WT/DS384/RW • WT/DS386/RW 
 
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  effect of reducing trade flows or reducing pr ices of both imported and domestic products."1237 
Likewise, according to Mexico, "the costs of compliance with a technical regulation may be a factor in the assessment of trade-restrictiveness of the measure at issue. For example, the cost of compliance may be very high, upsetting competitive opportunities available to imported 
products."
1238 The United States emphasizes the focus on trade-restrictiveness under Article 2.2 
and contends that the "complainants would have to establish a causal nexus between a change in costs on the U.S. industry and a change in market access for Canadian and Mexican 
producers."
1239 
7.559.  In this case, the complainants have not demonstrated that trace-back – including the 
various possible costs of animal identification, me at traceability, and eventual recordkeeping and 
verification aspects – would be less trade restrictiv e based purely on the alleged even distribution 
of costs.1240 
7.560.  We therefore find that the complainants have not made a prima facie case that a trace-
back system for all US-slaughtered cattle and swine would be less trade restrictive than the 
amended COOL measure. Given the complainants' insufficient description of their third alternative 
and the above limitations of their evidence put forward on its costs, we need not address the 
parties' disagreement on the specific relationship of costs and trade-restrictiveness under 
Article 2.2 of the TBT Agreement. 
                                               
1237 Canada's comments on the United States' respon se to Panel question No. 39, para. 55. Canada 
elsewhere refers to "the costs that a measure entails fo r market participants, in th e sense of the losses that 
the measure causes them." Canada's respon se to Panel question No. 39, para. 80. 
1238 Mexico's response to Pane l question No. 39, para. 82. 
1239 United States' response to Panel question No. 39, para. 115.  
The European Union states that, with respect to trad e-restrictiveness, "one question that arises is 
whether one is looking only at the absolute  impact of a regulation on  imports, or also at its relative  impact on 
imported and domestic products. The point may be signif icant in this case because Canada and Mexico appear 
to argue that there is an alternative measure (the third alternative) that is generally overall more costly, but 
preferable in the sense that the costs would be equally  distributed amongst domestic  and imported products." 
European Union's third-party submission, para. 110 (emphasis original). 
Korea submits that "the ordinary meaning of trade-re strictiveness would be that the flow of goods and 
services between national borders is constrained. Considering the addition al costs and administrative burden 
incurred by the trace-back system, one would tend to conclude that the alternative measure would constrain 
the flow of the goods in dispute. … If the trade-back  system incurring additional costs and administrative 
burden unnecessarily requires more in formation than the policy objective of the COOL requir ements pursues, 
Korea considers that the trace-back sy stem should not be regarded as a reasonably  available alternative 
measure." Korea's third-party submission, paras. 10 and 12. 
In the view of Japan, "costs can be  a relevant factor in the assessme nt under Article 2.2 and that cost 
information could constitute probative evidence of trade restrictiveness. Costs can reflect the regulatory burden 
imposed by the challenged measure on imports. In some cases, costs can help estimate the magnitude of the 
impact. Furthermore, costs can provide an objective ba sis to compare the regulato ry burden imposed by the 
challenged measure with the regulatory burden that would be imposed by reasonably available alternative 
measures identified by the complaining party. At the same time, costs should not be dispositive." Japan's response to Panel question No. 39. 
1240 For example, Canada argues that this "could no t possibly entail costs that would have a greater 
impact" and "it would create a level playing field". Cana da's second written submissi on, para. 112. Canada also 
contends that "[a] relevant consideration in that [Sum ner] analysis is the fact that, under any one of the 
alternative measures Canada has proposed, the costs of  complying with the measure would be borne by all 
market participants. Any cost increase associated with those tasks would not dispropo rtionately affect imported 
livestock." Canada's comments on the United States' re sponse to Panel question No. 39, para. 54. Mexico 
submits that "if there were trace-back to the originat ing farm, there would likely be no incentive to exclude 
imported Mexican cattle or shift the cost of compliance solely to Mexican animals. This is because all farmers 
would be treated the same and it would be immaterial wh ere they were located. Because U.S. beef processors 
would still have to trace U.S. cattle to individual fa rms, there would be no cost saving associated with 
excluding Mexican cattle. Thus, the economic incentive to  discriminate against Mexican cattle would likely be 
eliminated." Mexico's first written submission, para.204. We note that Canada expressly recognizes that "there might be some contraction in the U.S. industry under a trace-back system as  a result of a po ssible reduction in 
consumer demand." Canada's  second written submission, para. 136. See also Hayes and Meyer paper, p. 12 
(explaining the reduction of consumer purchases of pork in response to increased production costs and prices). WT/DS384/RW • WT/DS386/RW 
 
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  7.6.5.4.4  Whether the third alternative meas ure would make an equivalent contribution 
to the relevant legitimate objective 
7.561.  In the original dispute, the Appellate Body understood the participants "to accept that a 
trace-back system could require the provision of  consumer information on the country(ies) where 
livestock were born, raised, and slaughtered, or of even more detailed information, such as the 
specific location of individual production steps within a country."1241 The complainants put forward 
arguments to similar effect in this compliance dispute.1242 
7.562.  The capability of the proposed trace-back  system to fulfil the relevant objective would 
largely depend on the system adopted, subject to what may be reasonably available and technically feasible. We consider this analogous to the alternative measure assessed by the panel in EC – Seal Products , for which there was found to be an "inextricable link between the 
contribution of the alternative measure to the objective and the feasibility of its 
implementation".
1243 Thus, while a trace-back system may provide "consumer information on the 
country(ies) where livestock were born, raised, and slaughtered, or of even more detailed 
information"1244, the actual contribution of trace-back to the relevant objective would be "merely 
theoretical"1245 until the alternative measure is adequately identified and the complainants 
demonstrate its reasonable availability. 
7.563.  The insufficiency of the complainants' evid ence and arguments as to the implementation of 
the third alternative impedes our assessment of its provision of consumer information. In any event, we are not required
1246 to assess the contribution of the third alternative measure to the 
relevant objective due to the complainants' failure to meet their prima facie  b u r d e n  a s  t o  
reasonable availability and trade-restrictiveness. 
7.6.5.4.5  Conclusion on the third alternative measure 7.564.  We have found that the complainants have not provided a sufficient explanation of how 
their third alternative measure would be implemented.  This lack of adequate identification of the 
third alternative measure prevents an assessment of  the required elements of this alternative and 
its comparison with the amended COOL measur e under Article 2.2 of the TBT Agreement. 
Accordingly, we find that the complainants have not made a prima facie case that the third 
alternative measure is reasonably available an d less trade restrictive than the amended COOL 
measure. For these reasons, we are neither able nor required to find whether it would contribute to fulfilment of the relevant ob jective to an equivalent degree. 
7.6.5.5  Fourth alternative measure 
7.565.  The fourth alternative measure would pr escribe that muscle cuts from US-slaughtered 
animals
1247 carry labels indicating the place of birth, raising, and slaughter according to 
"states and/or province(s)"1248 – in addition to the country designations required by the amended 
COOL measure. Relying on the amended COOL measure's abbreviations1249, Labels A-C could read, 
for instance, as follows1250: 
                                               
1241 Appellate Body Reports, US – COOL , para. 490. 
1242 Canada's first written submission, para. 169; Mexico's first written submission, paras. 206-207. 
1243 Panel Reports, EC – Seal Products , para. 7.485. See also Appellate Body Reports, EC – Seal 
Products , para. 5.267. The panel also stated that "the degree of contribution achieved by the alternative 
measure … depend[ed] on the reasonable availability of  satisfying adequate … standards … as well as the 
capability of accurately distinguishi ng the resulting products for placemen t on the … market." Panel Reports, EC 
– Seal Products , para. 7.481. 
1244 Appellate Body Reports, US – COOL , para. 490. 
1245 See para. 7.555 above. 
1246 See para. 7.491 above. 
1247 According to the complainants, th eir alternatives would not cover gr ound meat or muscle cuts from 
foreign-slaughtered animal s, and would not change the amended COOL measure's Labels D and E. See 
Canada's and Mexico's responses to Panel questions Nos. 44 and 47. 
1248 Canada's second written submission, para. 138; Mexico's response to Panel question No. 71. 
1249 According to the amended COOL measure, "[a]bbr eviations may be used fo r state, regional, or 
locality label designations for these commodities whether domestically harvested or imported using official 
 WT/DS384/RW • WT/DS386/RW 
 
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7.566.  According to the complainants
1251, the labels could also show only one state or province for 
the production step of raising: for instance, the last state or province in which raising took place 
(i.e. where the animals were "finished" before slaughter). 
7.567.  As a further flexibility, according to Canada, the United States could limit the labelling 
requirements to country designations identica l to those under the amended COOL measure. 
However, market participants would nevertheless have to be able to demonstrate, if audited, that 
a muscle cut was derived from an animal that was born in a specific state/province, raised in a 
specific state/province, and slaughtered in specific state/province.1252 
7.568.  According to the complainants, a key element of the fourth alternative measure would be 
to eliminate segregation on a country basis.1253 Instead, segregation would be required on a more 
detailed state/province level.1254 For this, the fourth alternative could maintain the amended COOL 
measure's recordkeeping requirements and rely on  records kept under the Interstate Livestock 
Traceability Rule.1255 Verifying the designation of a state or province in which a production step 
took place could be done through the same audi t and verification system  of the amended COOL 
measure.1256 
7.569.  As an alternative to segregation on a state/province basis for all movements of animals 
(and reliance on the Interstate Livestock Traceability Rule), a national identification and 
traceability system, such as the United States' abandoned NAIS, could be used on a mandatory basis.
1257 
7.6.5.5.1  Mexico's endorsement of the fourth alternative measure 
7.570.  The fourth alternative measure was first proposed by Canada in its second written 
submission.1258 Mexico endorsed it later in the proceedings, first during the substantive meeting 
with the Panel1259, and again in its responses to the Panel.1260 
7.571.  The United States considers Mexico's endorsement to have come too late, and contends 
that it has not had sufficient time to respond to Mexico's claims under the fourth alternative.1261 
According to the United States, our Working Procedures, read in conjunction with Articles 9 and 
12.4 of the DSU, preclude us from admitting Mexico's endorsement of Canada's fourth alternative 
measure and the evidence submitted in support.1262 
                                                                                                                                               
United States Postal Service abbreviations or other abbreviations approved by CBP." 2009 Final Rule, § 
65.400(f) (unamended). 
1250 Canada's second written submission, para. 149; Mexico's response to Panel question No. 71. 
1251 Canada's and Mexico's responses to Panel question No. 71. 
1252 Canada's response to Panel question No. 71. 
1253 Canada's second written submission, paras. 140 and 142-143, response to Panel question No. 71; 
Mexico's response to Panel question No. 71. 
1254 Canada's second written submission, para. 142; Mexico's response to Panel question No. 71. 
1255 Canada's and Mexico's responses to Panel question No. 71. 
1256 Canada's second written submission, para. 141. See also Mexico's response to Panel question 
No. 71. 
1257 Canada's and Mexico's responses to Panel question No. 71. 
1258 Canada's second written submission, paras. 90-91 and 138-152.  
1259 Mexico's opening statement at the meeting with the Panel, para. 54.  
1260 See Mexico's response to Panel questions Nos. 71-72. 
1261 United States' response to Panel question No. 35,  para. 102, and comments on Mexico's response to 
Panel question No. 72.  
1262 United States' response to Panel question No. 35,  para. 102, and comments on Mexico's response to 
Panel question No. 72.  Born:  Canada, AB 
Raised:  U.S., MT 
Slaughtered:  U.S., WI  Brn:  CDA, AB 
Raisd:  USA, MT 
Slghtrd:  USA, WI OR WT/DS384/RW • WT/DS386/RW 
 
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  7.572.  As both the United States and Mexico note, each complainant must individually and 
separately meet its burden of proof for each of its claims.1263 This follows also from Article 9 of the 
DSU, according to which, even when a single panel is established for the examination of multiple complaints on the same matter, such a panel must "organize its examination and present its 
findings to the DSB in such a manner that the rights which the parties to the dispute would have 
enjoyed had separate panels examined the complaints are in no way impaired."
1264 
7.573.  As a factual matter, Mexico endorsed Canada's fourth alternative measure for the first time 
in its opening oral statement at the Panel's substantive meeting on the 18 February 2014.1265 
After the meeting, the parties were asked to prov ide written answers to a set of questions posed 
by the Panel. One of those written questions invited Mexico to confirm whether it was also proposing Canada's fourth alternative measure, and if yes to provide evidence in support of its 
prima facie case on the matter.
1266 In accordance with the timetable adopted by the Panel, 
Mexico responded to the Panel's written questions on 7 March 2014, confirming its endorsement of 
Canada's fourth alternative measure.1267 Prior to receiving these answers, in a communication 
dated 3 March 2014, the United States requested an additional week for submitting comments on 
the complainants' and third parties' responses to  the Panel's questions. Having considered the 
parties' comments on the United States' request for extension, on 5 March 2014 the Panel revised 
the timetable to grant the additional week requested by the United States.1268 I n  l i n e  w i t h  t h i s  
revised timetable, on 21 March 2014 the parties submitted their comments on each other's responses. 
7.574.  Article 12.4 of the DSU provides that "[in ] determining the timetable for the panel process, 
the panel shall provide sufficient time for the part ies to the dispute to prepare their submissions". 
In the context of the fourth alternative measur e, meeting this requirement entailed giving the 
United States sufficient time to respond to Mexico's endorsement at the meeting as well as its 
relevant responses to the Panel's questions following the meeting. As indicated by the 
Appellate Body in Australia – Salmon , "[a] fundamental tenet of due process is that a party be 
provided with an opportunity to respond to claims made against it".
1269 
7.575.  More generally, according to the Appellate Body: 
[d]ue process is a fundamental principle of WTO dispute settlement.1270 It informs and 
finds reflection in the provisions of the DSU.1271 In conducting an objective 
                                               
1263 Mexico's response to Panel ques tion No. 35, para. 59; United Stat es' response to Panel question 
No. 35, and comments on Mexico's response to Panel question No. 35. Mexico seems to suggest otherwise, however, when it states that "Mexico and Canada […] have jointly presented a prima facie  case with respect to 
the four alternative measures that have been proposed." Mexico's opening statement at the meeting with the Panel, para. 55. 
1264 Article 9.2 of the DSU. We make this observation without prejudice to our comments above with 
respect to procedural aspects of the establishment of  this compliance Panel. See section 1.3.4 above.  
1265 This endorsement was not solicited by any of the advanced questions sent to the parties before the 
substantive meeting. 
1266 Panel question No. 72 asked Mexico: "Do you propos e the fourth alternative measure put forward by 
Canada in its Second Written Submission? If yes, please elaborate how the Article 2.2 test should be applied to 
this alternative, and please also answer Question 71." Question No. 71 addressed Canada in the following 
terms: "How would the fourth suggested  alternative measure affect segregat ion, recordkeeping, and labelling? 
Please respond to the US arguments about frequent interstate movements and the concentration of Canadian cattle production. (United States' Second Written Submission, paras. 161-162)." 
1267 Mexico's response to Pa nel questions Nos. 71-72. 
1268 The Appellate Body has held that panels enjoy a margin of discretion to deal with situations that are 
not explicitly regulated. According to  the Appellate Body, "the DSU, and in  particular its Appendix 3, leave 
panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated." Appellate Body Report, EC – Hormones , 
footnote 138. 
1269 Appellate Body Report, Australia – Salmon , para. 278. 
1270 (footnote original) The Appellate Body has held that  "the protection of due process is an essential 
feature of a rules-based system of adjudication, such  as that established under the DSU", and that "due 
process is fundamental to ensuring a fair and or derly conduct of dispute settlement proceedings". 
(Appellate Body Reports, Canada – Continued Suspension  / US – Continued Suspension , para. 433; and 
Appellate Body Report, Thailand – H-Beams , para. 88, respectively. See also Appellate Body Report, Chile – 
Price Band System , para. 176). WT/DS384/RW • WT/DS386/RW 
 
- 175 - 
 
  assessment of a matter, a panel is "bound to ensure that due process is 
respected".1272 Due process is intrinsically connected to notions of fairness, 
impartiality, and the rights of parties to be heard and to be afforded an adequate opportunity to pursue their claims, make out their defences, and establish the facts in 
the context of proceedings conducted in a balanced and orderly manner, according to 
established rules. The protection of due process is thus a crucial means of guaranteeing the legitimacy and efficacy of a rules-based system of adjudication.
1273 
7.576.  The "fair", "impartial", "balanced and or derly" nature of due process entails that due 
process applies to all parties in a dispute equally.1274 In this sense, complainants' right "to be 
afforded an adequate opportunity to pursue their claims" and respondents' right "to be afforded an 
adequate opportunity … to make out their defences" are two sides of the same coin: the right to 
be heard. Whereas the United States is undeniably entitled to an adequate opportunity to respond 
to claims made against it, it is equally imperative that Mexico have an adequate opportunity to make its claims. The same applies generally to arguments and evidence advanced by the parties. 
7.577.  That balance is also reflected in our Working Procedures. Paragraph 7 thereof provides that 
"each party shall submit all factual evidence to the Panel no later than during the substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party."
1275 Moreover, "[e]xceptions to this 
procedure shall be granted upon showing good caus e", provided that the Panel "shall accord the 
other party a period of time for comment, as a ppropriate, on any new factual evidence submitted 
after the substantive meeting."1276 
7.578.  Mexico endorsed the fourth alternative measure at the Panel's single substantive meeting 
with the parties. It would have been preferable for Mexico to do this at an earlier stage, and not following the two exchanges of written submission s among the parties. Likewise, it would have 
been preferable for Canada to propose the fo urth alternative measure in its first written 
submission. Introducing and clarifying the altern ative measures at the earliest possible stage 
would have contributed to more efficient panel proceedings – both organizationally, and in terms 
of the other parties' and third parties' right to be heard more fully with regard to the fourth 
alternative measure.
1277 
7.579.  Canada, the other complainant in this dispute, proposed the fourth alternative measure 
only in its second written submission, with the result that the opening oral statement at the 
substantive meeting was Mexico's first opportunity to endorse Canada's newly introduced 
alternative measure. The terms of the Working Proc edures did not preclude Mexico from endorsing 
Canada's fourth alternative measure in the opening oral statement at the Panel hearing.1278 
                                                                                                                                               
1271 See Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 107. See also 
Appellate Body Reports, India – Patents (US) , para. 94; and Chile – Price Band System , para. 176. 
1272 (footnote original) A ppellate Body Report, Chile – Price Band System , para. 176.  
1273 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 147.  
1274 Panel Report, Australia – Apples, para. 7.7 (citing Appellate Body Report on Canada – Continued 
Suspension , para. 433). 
1275 Panel Working Procedures (as revised on 21 January 2014) in Annex A-1.  
1276 Panel Working Procedures (as revised on 21 January 2014) in Annex A-1. 
1277 In Thailand – Cigarettes (Philippines) , the Appellate Body "recalled th at panel proceedings consist of 
two main stages, the first of which involves each party setting out its 'case in chief, including a full presentation of the facts on the basis of submission of supporting evidence', and the second designed to permit 
the rebuttal by each party of the arguments and evidence submitted by the other parties. Nonetheless, the submission of evidence may not always fall neatly into one or the other of these categories, in particular when 
panels themselves, in the exercise of th eir fact finding authority, seek to pursue specific lines of inquiry in their 
questioning of the parties. In this re spect, we wish to reiterate that due process will best be served by working 
procedures that provide 'for appropriate factual di scovery at an early stage in panel proceedings'." 
Appellate Body Report,  Thailand – Cigarettes (Philippines) , para. 149 (footnotes omitted). 
1278 According to the Appellate Body, "when the partic ular circumstances of specific disputes present 
situations that are not explicitly regulated by their working procedures, panels, in the exercise of their control over the proceedings, and subject to the constraints of  due process and the DSU, enjoy a margin of discretion 
to deal with such situatio ns." Appellate Body Report,  Thailand – Cigarettes (Philippines) , para. 149 
(footnote omitted). WT/DS384/RW • WT/DS386/RW 
 
- 176 - 
 
  7.580.  Once a claim or argument is properly put before it, a panel has broad powers of 
investigation and discovery in order to make an objective assessment of the matter before it.1279 
Following Mexico's endorsement of the Canada's fourth alternative measure at the substantive meeting, the Panel availed itself of these faculties to invite the complainants to submit further 
arguments and factual evidence with respect to th e fourth alternative measure. By the terms of 
paragraph 7 of the Working Procedures, Mexico then had the right to submit arguments and evidence in response to these questions from the Panel. 
7.581.  Turning to the United States, we gran ted the extension for the period of comments 
requested by the United States. As a result, the Unit ed States had in total four and a half weeks to 
prepare its response to Mexico's endorsement of the fourth alternative measure, and two weeks to 
comment on Mexico's responses to the Panel's questions, including with regard to the fourth 
alternative measure. By way of comparison, the Un ited States had less than four weeks to submit 
its first written submission following receipt of the complainants' first written submissions. Likewise, the parties had less than four weeks to submit their second written submissions setting 
out rebuttals on the totality of the claims. 
7.582.  We recognize that during the two and a half weeks between Mexico's endorsement of the 
fourth alternative measure and its responses to the Panel's questions, the United States could not 
have anticipated the arguments and evidence that Mexico might put forward in its responses in 
relation to the fourth alternative measure. Yet, Mexico gave clear indications at the substantive meeting that it was proposing the same alternative that Canada had raised in its second written submission. In its opening statement, Mexico stated  that it "agrees with Canada's submissions on 
this alternative and the fact it (i) would provide a greater contribution to the objective than the 
Amended COOL Measure, (ii) would be less trade restrictive and (iii) is reasonably available."
1280 
In addition, Mexico referenced "the evidence and arguments" of Canada in this regard.1281 In its 
comments on Mexico's responses to the Panel, the United States noted that it "has had time to 
evaluate Canada's fourth alternative."1282 We see no reason why the same does not apply to 
Mexico's endorsement of Canada's evidence and arguments for the fourth alternative measure at 
the hearing, given that at that point Mexico advanced no additional argument and evidence to that 
provided by Canada. 
7.583.  We also recognize that, as the United States points out1283, a response to the same claim 
made by separate complainants may be different – depending, for instance, on any differences 
between the complainants and their relevant argume nts and evidence. In fact, this was one of the 
considerations we took into account for extending the period of time for parties to comment on each other's responses. The extension we grante d corresponds exactly to the period of time 
requested by the United States following Mexico's responses to the Panel's relevant questions. 
7.584.  In light of the above, we do not consider  that Mexico's endorsement of Canada's fourth 
alternative measure came too late in these proceedings. Nor do we consider that the 
United States' rights of due process rights have been affected as a result. Accordingly, we admit 
Mexico's endorsement of the fourth alternative measure and the arguments and evidence submitted in support of its claims under that al ternative measure. Under the circumstances, we 
proceed to examine whether Canada and Mexico make a prima facie case in relation to the fourth 
alternative measure. 
7.6.5.5.2  The implementation of  the fourth alternative measure 
7.585.  As noted, in comparing the challenged measure with a proposed alternative measure under 
Article 2.2 of the TBT Agreement, "it will be relevant to consider whether the proposed alternative 
is less trade restrictive; whether it would make an equivalent contribution to the relevant 
                                               
1279 Panel Report, Australia – Apples, para. 7.76. See also Appellate Body Report, Japan – Agricultural 
Products, para. 129, for the same proposition and the lim its to a panel's investigative authority.  
1280 Mexico's opening statement at th e meeting of the Panel, para. 54. 
1281 Mexico's opening statement at th e meeting of the Panel, para. 55. 
1282 United States' comment on Mexico's response to Panel question No. 72. 
1283 United States' comments on Mexico's response to Panel question No. 35, para. 100.  WT/DS384/RW • WT/DS386/RW 
 
- 177 - 
 
  legitimate objective, taking account of the risks non-fulfilment would create; and whether it is 
reasonably available."1284 
7.586.  Before reviewing these aspects of the fourth alternative measure, we first address how this 
proposed measure would be implemented according to the complainants. As noted, 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[]" but entails an "actual, concrete proposal[]".
1285 Having a basic understanding of how an alternative 
measure would be implemented is a prerequisite for comparing this alternative with the challenged 
measure.1286 
7.587.  The complainants' fourth alternative measure would prescribe that origin information be 
provided at retail – or at least maintained and transmitted in the supply chain1287 – according to 
states/provinces, and not just by countries of origin. As noted, the complainants suggest two 
approaches to achieve this: (i) trace-back; and (ii) segregation and recordkeeping. 
7.6.5.5.2.1  Trace-back 
7.588.  According to the complainants, the first appr oach would entail a national identification and 
traceability system, such as the United States' abandoned NAIS, applied on a mandatory basis.1288 
7.589.  We have already addressed the shortcomings of the complainants' references to the NAIS 
for describing the operation of trace-back under the third alternative measure.1289 In the context of 
the fourth alternative measure, the complainan ts refer to the NAIS without adducing any 
arguments that would affect the relevance of thes e shortcomings for a trace-back approach under 
the fourth alternative measure. Further, the co mplainants do not explain how NAIS should be 
implemented differently to provide origin information according to states/provinces. 
7.590.  In any event, as Canada recognizes, the NAIS could serve as a model for only "the first 
stage of a trace-back system" under the fourth alternative measure.1290 As regards the second 
stage, Canada describes a single aspect of trace-back at the slaughterhouse. Canada argues that 
US slaughterhouses could assemble groups of anim als on a state/province basis in larger groups 
than under the third alternative measure.1291 Thus, according to Canada, trace-back under the 
fourth alternative measure would entail lower compliance costs than the third alternative.1292 
Canada makes this argument in response to the United States' contention that state/province labelling would entail that "each individual head of cattle be tracked as it goes through the livestock production process"
1293, and thus, like the third alternative measure, the fourth 
alternative would also require "the tracking of individual animals."1294 Mexico advances no 
description as to how trace-back could serve for the implementation of the fourth alternative measure at the second stage, i.e. the killing of th e animal and the division of the carcass into cuts 
at the slaughterhouse. Further, the complainants provide no specific argument as to how trace-
back would be implemented in the third stage, i.e.  in meat processing and distribution beyond the 
slaughterhouse, under the fourth alternative measure. 
7.591.  In sum, the complainants, in particular Mexico, provide very limited or no specific 
description of how a trace-back approach would serve to implement their fourth alternative 
                                               
1284 Appellate Body Reports, US – COOL, para. 471 (citing Appellate Body Report, US – Tuna II (Mexico) , 
para. 322).  
1285 United States' comment on Canada's response to Panel question No. 74. 
1286 See paras. 7.553 and 7.556 above. 
1287 Canada's response to Panel question No. 71. 
1288 Canada's and Mexico's responses to Panel question No. 71. 
1289 See section 7.6.5.4.1 above. 
1290 Canada's response to Panel question No. 71. 
1291 Canada's response to Panel question No. 74. 
1292 Canada's response to Panel question No. 74. 
1293 United States' second written submission, para. 160. 
1294 United States' opening statement at the meeting of the Panel, para. 56. Mexico seems to agree with 
this US point, arguing that under the fourth alternat ive measure "each head of livestock would be treated 
individually within the system and all cattle would be tr eated the same." Mexico's response to Panel question 
No. 72. WT/DS384/RW • WT/DS386/RW 
 
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  measure. For the first stage, the complainants ha ve referenced an abando ned US measure (NAIS), 
without addressing the shortcomings of the NAIS fo r describing the operation of trace-back at that 
stage. We lack an adequate explanation from the complainants for the second and third stages of trace-back. Yet, Canada considers the second stage to be the most costly.
1295 
Further, as explained for the third alternative measure, all three stages of trace-back are 
necessary to ensure origin information at the point of retail sale.1296 To the extent relevant, 
we also note that the complainants provide no explanation on how they could supply relevant 
state/province origin information compatible with a US trace-back system specifically for the fourth 
alternative measure. 
7.592.  Accordingly, we find that the complainants have not provided a sufficient explanation of 
how their fourth alternative measure would be implemented using a trace-back system. 
7.6.5.5.2.2  Segregation and recordkeeping 
7.593.  According to the complainants, the second  approach to implement the fourth alternative 
measure would entail segregation on a more detailed state/province level.1297 To substantiate 
origin claims, the amended COOL measure's reco rdkeeping requirements could be maintained, 
relying also on records kept under the Interstate Livestock Traceability Rule.1298 
7.594.  The complainants refer specifically to th e Interstate Livestock Tr aceability Rule for its 
recordkeeping requirements on interstate movements.1299 According to Canada, if "further 
developed to facilitate the verification of origin  designations by state", the "records kept for … 
complying with the [Interstate Livestock Traceabi lity Rule] could be used to verify [origin] 
designations under the proposed [fourth] alternative measure."1300 At a later point, Canada 
appears to adjust this argument by stating that the "United States could rely on the segregation of 
animals on a state/province basis and on documents generated pursuant to, or required under, [the Interstate Livestock Traceability Rule], combined with requirements for producer's affidavits 
for elements that are not currently fully covered under that Rule."
1301 
7.595.  Canada and the United States contest the exact scope of the current exemptions from the 
Interstate Livestock Traceability Rule for inter-state livestock movements, including from its 
record-keeping rules, and whether these exemptio ns would be addressed in future rulemaking.1302 
In any event, the United States argues that records kept pursuant to the Interstate Livestock Traceability Rule do not accompany the animal.
1303 Canada responds that all cattle moving 
interstate and destined for slaughter, irrespective of age, must be accompanied by an owner-
shipper statement, which is subject to the recordkeeping requirements.1304 
7.596.  We noted above the shortcomings of the complainants' references to the Interstate 
Livestock Traceability Rule for describing the implementation or essential features of the third 
alternative measure.1305 In the context of the fourth alternative measure, the complainants refer 
to this Rule without adducing arguments that would clarify its requirements or relevance to an alternative providing state/province designations on retail muscle cuts. 
7.597.  In particular, only Canada provides a limited explanation of how the Interstate Livestock 
Traceability Rule might apply under the fourth alternative measure. We understand Canada to 
advance a combination of owner-shipper statements under the Interstate Livestock Traceability Rule and producer's affidavits for elements that are not currently fully covered under that Rule. 
Nevertheless, Canada recognizes that currently  "there is no requirement to record the 
                                               
1295 Canada's response to Panel question No. 74. 
1296 See section 7.6.5.4.1 above. 
1297 Canada's second written submission, para. 142; Mexico's response to Panel question No. 71. 
1298 Canada's and Mexico's responses to Panel question No. 71. 
1299 Canada's second written submission, paras. 150-151; Mexico's response to Panel question No. 71. 
1300 Canada's second written submission, para. 151. 
1301 Canada's comments on United States ' response to Panel question No. 70. 
1302 Canada's comments on United States' response to Panel question No. 70; United States' comments 
on Canada's response to  Panel question No. 71. 
1303 United States' comments on Canada's responses to Panel questions Nos. 71 and 74. 
1304 Canada's comments on United States ' response to Panel question No. 70. 
1305 See section 7.6.5.4.1.1 above. WT/DS384/RW • WT/DS386/RW 
 
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  identification number of [currently exempt ed] cattle on the owner-shipper statement".1306 
Accordingly, it is unclear how owner-shipper statements could be used to convey origin information on specific animals, and consequently what elements would not be fully covered and thus need to be substantiated by producers' affidavits for the purposes of the fourth alternative 
measure. In any event, the Interstate Livestock Traceability Rule deals with traceability of 
interstate animal movements.
1307 Thus, it is limited to the life of the animal. 
7.598.  The complainants advance limited arguments on how recordkeeping would be implemented 
under the fourth alternative measure from the anim al's slaughter to the meat retail stage. As a 
general point, the complainants assert that the re cordkeeping requirements "could be the same as 
those under the amended COOL measure".1308 They add that verifying the designation of a state or 
province in which a production step took place could be done through the same audit and 
verification system of the amended COOL measure.1309 As regards applying the fourth alternative 
measure specifically at the slaughterhouse, according to Canada, "U.S. slaughterhouses could continue to rely on, for instance, health papers or producer affidavits, including for animals born 
and/or raised in Canada."
1310 
7.599.  However, the complainants do not specify how the amended COOL measure's 
recordkeeping requirements would be implemente d to maintain and transmit the more detailed 
origin information under the complainants' fourth alternative measure. For instance, despite its 
assertions, Canada recognizes that "[t]he presence of an ear tag from Canada would no longer be sufficient because information on the province would be necessary."
1311 The United States agrees, 
and points out that " Canadian  entities would need to maintain those records with each sale of the 
animal, including the sale of the animal to the U.S. slaughterhouse."1312 As a result, it is not clear, 
for instance, what records would be necessary to allow US slaughterhouses to initiate the origin claim of foreign-origin animals, and whether relying on the amended COOL measure's 
recordkeeping requirements would be sufficient for the complainants' fourth alternative measure. 
7.600.  Finally, we note that the complainants ar gue that the fourth alternative measure is not 
merely theoretical because the amended COOL measure already provides that state, regional, or 
locality label designations may be used in lieu of country of origin labelling for perishable 
agricultural commodities.
1313 To the extent the complainants are advancing this argument to 
describe how their fourth alternative measure could be implemented, we consider its relevance to be limited. In fact, Canada recognizes that this voluntary rule does not apply to meat, and it is not 
aware of US retailers having used this ru le for the products covered by the rule.
1314 
7.601.  In light of the above, we find that the complainants have not sufficiently explained how 
their fourth alternative measure would be im plemented by means of either trace-back, 
or recordkeeping and segregation. 
7.6.5.5.2.3  Conclusion on the implementa tion of the fourth alternative measure 
7.602.  As noted, the complainants' limited explanat ions do not provide a sufficient description of 
how their fourth alternative measure would be implemented in the United States. As noted1315, an 
adequate identification of an alternative measur e is a prerequisite for assessing its reasonable 
availability and for comparing its trade-restrictiveness and degree of contribution with the 
                                               
1306 Canada's comments on United States ' response to Panel question No. 70. 
1307 Canada's second written submission, para. 150. 
1308 Canada's response to Panel question No. 71; Mexico's response to Panel question No. 71. 
1309 Canada's second written submission, para. 141. See also Mexico's response to Panel question 
No. 71. 
1310 Canada's response to Panel question No. 71. 
1311 Canada's response to Panel question No. 71. To the extent relevant, we note that the complainants 
provide no further arguments as to how their industries would collect an d convey informatio n necessary for, 
and compatible with, their fo urth alternative measure. 
1312 United States' comments on Canada's response  to Panel question No. 71 (emphasis original). 
1313 Canada's second written submission , para. 149 and Mexico's response to Panel question No. 72. 
See 2009 Final Rule, § 65.205. 
1314 Canada's response to Panel question No. 73. See also United States' comments on Canada's 
response to Panel question No. 73. 
1315 See paras. 7.553-7.556 above. WT/DS384/RW • WT/DS386/RW 
 
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  challenged measure. Accordingly, we are not in a position to carry out the comparative analysis 
with regard to the fourth alternative measure. 
7.6.5.5.3  Costs of the fourth alternative measure 7.603.  In light of the parties' arguments in this dispute, we have noted that the costs of an 
alternative measure may have implications for both its reasonable availability and its trade-
restrictiveness.
1316 We have also noted that the complainants have the initial burden to make a 
prima facie case in this regard.1317 The complainants have adduced only limited arguments on the 
costs of the fourth alternative. 
7.604.  As regards implementing the fourth alternative measure by means of trace-back, only 
Canada has adduced argument as to the specific costs of this approach.1318 This argument is 
limited to the NAIS and, hence, to only the first stage of trace-back. 
7.605.  As regards implementing the fourth alte rnative measure by means of recordkeeping and 
segregation, Canada relies on "the same mechanisms and logic that prevail under the amended COOL measure, except that the mechanisms and lo gic apply one level down (states and provinces, 
as opposed to countries)."
1319 Accordingly, based on the logic set out above1320, the fourth 
alternative measure would involve increased segreg ation and higher overall segregation costs than 
the amended COOL measure. 
7.606.  With the increase of segregation, the over all recordkeeping burden and costs would also be 
higher under the fourth alternative measure th an under the amended COOL measure. As the 
United States explains, "while the type of docu ments may be the same, the information provided 
in these documents, the entity maintaining thos e documents, and the sheer number of documents, 
would be quite different (and more burdensome) under the fourth alternative than it is under the 
amended COOL measure."1321 
7.607.  Thus, implementing the fourth alternat ive measure by recordkeeping and segregation 
could entail higher overall segregation and record keeping costs than the amended COOL measure. 
Indeed, in response to the United States' suggestion that Canada may voluntarily provide province designations
1322, Canada recognizes that this would create a "further … burden" for Canada.1323 
Instead of specifying the overall costs, the co mplainants focus on whether the segregation and 
recordkeeping costs of their fourth alternative would be borne in a discriminatory fashion. Yet, the complainants recognize that there might be an absolute cost level which might result in trade-restrictiveness even with a non-discriminatory distribution of costs.
1324 
7.608.  The complainants' limited arguments on the costs of the fourth alternative measure1325 
reinforce our conclusion that the complainants have not adequately explained how the fourth 
                                               
1316 See para. 7.509 above. 
1317 See para. 7.510 above. 
1318 Canada argues that "the costs of [the NAIS] ha d been estimated to be $ 5.97 per head for cattle 
and $ 0.06 for hogs." Canada's resp onse to Panel question No. 74. 
1319 Canada's response to Panel question No. 71. 
1320 See section 7.5.4.1.2.3 above. 
1321 United States' comments on Canada's  response to Panel question No. 71. 
1322 United States' second written submission, para. 163. 
1323 Canada's response to Panel question No. 73. 
1324 See section 7.6.5.1.3 above. In regard to this po int, Canada advances that "state and/or province 
designations would certainly not entail additional costs in the minimum amount of $608 per head of cattle and 
$116 per hog." Canada's second written submission, para. 146 (footnote omitted). However, we have found that we cannot draw any inferences from the studies adva nced by the complainants as to whether the implied 
additional costs of any non-discriminatory alternative measure implemented in the United States are effectively lower than the hypothetical and simulated figures. See 7.6.5.1.3 above.  
1325 Canada contests the relevance of the United States' argument that there could be more animal 
concentration and less animal movements in Canada than  in the United States. However, Canada does not 
contest this argument as such. As the United States points out, this might have implications for the overall costs of the fourth alternative in the United States an d Canada. Hence, it might also impact how these costs 
would be distributed among the United States and Canada. To reduce the overall US costs of the fourth 
alternative measure, Canada mentions that only the last state/province of raising should be shown on the label. However, Canada does not addr ess the implication of this flexibility for the distribution of costs among 
 WT/DS384/RW • WT/DS386/RW 
 
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  alternative measure would be implemented so as to enable a meaningful comparison with the 
amended COOL measure. 
7.6.5.5.4  Conclusion on the fourth alternative measure 7.609.  The complainants failed to provide an adeq uate explanation of how their fourth alternative 
measure would be implemented. In addition, th e complainants have not advanced sufficient 
arguments on the costs of the fourth alternative measure to enable us to review the fourth alternative measure's reasonable availability and trade-restrictiveness. 
7.610.  Consequently, we find that the complainants have not made a prima facie case that the 
fourth alternative measure is reasonably available and less trade restrictive than the amended COOL measure. In light of this, we do not find it necessary to assess whether the fourth alternative measure would make a contribution to the objective of providing consumer information 
on origin at least equivalent to the amended COOL measure's actual degree of contribution to the 
same objective. 
7.6.6  Conclusion on Article 2.2 of the TBT Agreement 
7.611.  We have found that the amended COOL measure pursues a legitimate objective and 
contributes to the fulfilment of this objective to a considerable but necessarily partial degree. Further, we have found that the amended COOL measure has increased the "considerable degree 
o f  t r a d e - r e s t r i c t i v e n e s s "  f o u n d  b y  t h e  A p p e l l a t e  B o d y  i n  t h e  o r i g i n a l  d i s p u t e .  W e  h a v e  a l s o  
established the nature of the risks of not fulfilling the amended COOL measure's objective as well as the consequences of non-fulfilment; however, we have been unable to ascertain the gravity of 
these consequences. 
7.612.  Following this relational analysis, we conducted a comparative analysis of the 
complainants' suggested four alternative measures , and found that the complainants did not make 
a prima facie case that any of these alternatives demonstrate that the amended COOL measure is 
more trade restrictive than necessary within th e meaning of Article 2.2 of the TBT Agreement. 
7.613.  In light of the above, we conclude that the complainants have not made a prima facie  case 
that the amended COOL measure violates Article 2.2 of the TBT Agreement. 
7.614.  In concluding, we recall our earlier finding that providing consumer information on origin is 
a legitimate objective. A Member is therefore free to adopt technical regulations consistent with its WTO obligations to pursue this objective. Further, in making our findings, we do not mean to imply 
that there is no practical, WTO-consistent way for Members to pursue the above legitimate 
objective. In the context of Article 2.2 of the TBT Agreement, we have not made a determination 
whether or not the complainants' four alternative measures fulfil the three elements
1326 of the 
legal test of the comparative analysis. Rather, our comparative analysis is focused on whether the 
complainants have made a prima facie case, and concludes that the complainants have not done 
so in the context of our comparative analysis. In this context, we consider that some form of trace-back could require the provision of consumer information on the country(ies) where livestock 
were born, raised, and slaughtered, or of even more detailed information, such as the specific 
location of individual production steps within a country.
1327 
7.615.  By virtue of our terms of reference, ou r comparative analysis under Article 2.2 of the 
TBT Agreement is confined to the four alternative measures as identified by the complainants. 
We have not reviewed other possible variations of these alternatives; nor have we considered 
general techniques to convey country of origin information to consumers in the abstract. We do not wish to exclude that some variation of the alternatives suggested by  the complainants might 
provide a WTO-consistent solution for pursuing the legitimate objective of providing consumer 
information on origin. 
                                                                                                                                               
the two countries. Canada's response to Panel questi on No. 71; United States' second written submission, 
paras. 159-161. 
1326 See paras. 7.427-7.428 above. 
1327 See Appellate Body Reports, US – COOL, para. 490, and para. 7.562 above. WT/DS384/RW • WT/DS386/RW 
 
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  7.616.  In sum, our findings of violation relate specifically to the discriminatory nature of the 
amended COOL measure with respect to imported livestock. In our view, attaining a non-discriminatory solution might well be achieved through further consultations among the parties. 
7.7  Article III:4 of the GATT 1994 
7.617.  Article III:4 of the GATT 1994 provides in relevant part: 
The products of the territory of any contracting party imported into the territory of 
any other contracting party 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 sale, purchase, transportation, distribution or use. 
7.618.  The complainants argue that the amende d COOL measure violates Article III:4 of the 
GATT 1994, and request the Panel to address their claims under Article III:4 irrespective of the 
Panel's findings under Article 2.1 of the TBT Agreement.
1328 The United States contends that the 
complainants failed to establish the inconsistency of the amended COOL measure with Article III:4 
of the GATT 1994.1329 
7.7.1  Legal test 7.619.  As the Appellate Body has recently conf irmed, there are three elements that must be 
demonstrated to establish that a measure is inconsistent with Article III:4: "(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."
1330 
7.620.  The complainants argue, and the United St ates does not contest, that the amended COOL 
measure fulfils the first two elements.1331 At the same time, the parties disagree on the specific 
criteria for the "less favourable treatment" elemen t, and on the extent to which it might overlap 
with the "less favourable treatment" test under Article 2.1 of the TBT Agreement.1332 
7.621.  The United States argues in this regard that detrimental impact on competitive conditions 
"is not enough" for establishing less favourable treatment under Article III:4.1333 It contends that 
                                               
1328 See Canada's first written submission, para. 90; and Mexico's first written submission, para. 213. 
1329 See United States' first written submission, Section III.C. 
1330 Appellate Body Reports, EC – Seal Products , para. 5.99 (citing Appellate Body Report, Thailand – 
Cigarettes (Philippines) , para. 127 (referring to Appellate Body Report, Korea – Various Measures on Beef , 
para. 133). See also Canada's first written submission, para. 91; and Mexico's first written submission, para. 215. In its arguments, the United States focuses on the "less favourable treatment" of Article III:4 of the 
GATT 1994, and does not call into question the relevance of the other two elements of the Article III:4 legal 
test. 
1331 For the "like products" element, see Canada's firs t written submission, para. 92; and Mexico's first 
written submission, para. 217. For the "measure at issue" element, see Canada's first written submission, para. 93; and Mexico's first written submission, para. 224. 
1332 See Canada's first written submission, para. 94; Mexico's first written submission, paras. 225-229; 
United States' first written submission, paras. 121-138; Canada's second written submission, paras. 57-62; Mexico's second written submission, paras. 73-80; and United States' second written submission, paras. 81-94. 
As regards the third parties, the European Union agrees with the United States, and contends that the 
analysis under Article III:4 of the GA TT 1994 "includes a consideration of no t only the impact  of the measure 
on competitive opportunities for imports, but also a consideration of whether the origin neutral objective or regulatory distinction is legitimate and even-handed" . European Union's third-party submission, para. 140. 
See also European Union's third-pa rty statement, pa ras. 36-37 and 44-45. Conversely, New Zealand supports 
the complainants' approach, arguing that the legal test under Article III:4 does not entail "an analysis of whether the … measure makes distinctions that can be ex plained by factors or circumstances unrelated to the 
origin of the imported products". New Zealand's third- party submission, paras. 27-29. Finally, Japan submits 
that importing the interpretation of Article 2.1 of th e TBT Agreement into  Article III:4 of the GATT 1994 "is not 
without difficulties", and that introducing flexibility into Article III:4 may render Article XX of the GATT 1994 "meaningless". Japan's third-pa rty statement, paras. 18-19. 
1333 United States' first written submission, para. 123. WT/DS384/RW • WT/DS386/RW 
 
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  the Panel should additionally assess whether any detrimental impact can be "explained by other 
factors or circumstances that do not reflect discrimination".1334 
7.622.  Canada responds that the United States is trying to "import the legitimate regulatory 
distinction component of the TBT Article 2.1 test into the GATT Article III:4 analysis" of less 
favourable treatment, without any textual basis.1335 Mexico adds that, unlike under Article 2.1 of 
the TBT Agreement, establishing less favourable treatment in the context of Article III:4 of the 
GATT 1994 remains a single-step approach,1336 and there is "no need to make any additional 
determination under Article III:4 on whether the detriment reflects discrimination against like 
imported products".1337 
7.623.  The Appellate Body has recently clarified the meaning of the term "treatment no less 
favourable" in Article III:4 of the GATT 1994. In pa rticular, it considered "well established" that 
"the term 'treatment no less favourable' requires effective equality of opportunities for imported 
products to compete with like domestic products."1338 The Appellate Body added that "because 
Article III:4 is concerned with ensuring effective equality of competitive opportunities for imported 
products, a determination of whether imported products are treated less favourably than like 
domestic products involves an assessment of the implications of the contested measure for the equality of competitive conditions between imported and like domestic products."
1339 
Thus, according to the Appellate Body, "Article III: 4 permits regulatory distinctions to be drawn 
between products, provided that such distinctions do not modify the conditions of competition between imported and like domestic products."
1340 
7.624.  On this basis, the Appellate Body concluded: 
If the outcome of this assessment is that the 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 . … 
We do not consider … that for the purposes of an analysis under Article III:4, a panel 
is required to examine whether the detrimental impact of a measure on competitive opportunities for like imported products stem s exclusively from a legitimate regulatory 
distinction.
1341 
7.625.   We consider the Appellate Body's clarificatio ns in this regard to directly dispose of similar 
arguments in this compliance dispute. The Appellate Body unequivocally stated that "the legal standard for the non-discrimination obligations under Article 2.1 of the TBT Agreement does not 
apply equally to claims under Article … III:4 of the GATT 1994."
1342 Accordingly, we reject the 
United States' suggestion to address legitimate regulatory distinctions in the context of less favourable treatment under Article III:4 of the GATT 1994. 
                                               
1334 United States' first written submission, para. 123 (citing Appellate Body Report, Dominican Republic 
– Import and Sale of Cigarettes , para. 96). The United States also argues that "[t]he analysis under 
Article III:4 … necessarily entails an ex amination of whether the regulation makes distinctions that could not 
be considered even-handed as to the group of 'like' im ported products versus the group of 'like' domestic 
products, or whether those distinctions  are, in fact, even-handed and any detrimental effect can be explained 
by factors or circumstances unrelated to the foreign origin of the imported  product." See Unit ed States' first 
written submission, para. 134 (emphasis original, footnote omitted). 
1335 Canada's second written submission, para. 58. 
1336 Mexico's second written submission, para. 75. 
1337 Mexico's second written submission, para. 75. 
1338 Appellate Body Reports, EC – Seal Products , para. 5.101 (citing Appellate Body Reports, US – Clove 
Cigarettes , para. 176 (in turn referring to GATT Panel Report, US – Section 337 Tariff Act , para. 5.10); China - 
Publications and Audiovisual Products , para. 305 (in turn referring to Appellate Body Report, Korea - Various 
Measures on Beef , paras. 135 and 136); and Thailand – Cigarettes (Philippines) , para. 126 (in turn referring to 
Appellate Body Report, Japan – Alcoholic Beverages II , p. 16)). 
1339 Appellate Body Reports, EC – Seal Products , para. 5.101 (citing Appellate Body Reports, US – Clove 
Cigarettes , paras. 177 and 179; and Korea – Various Measures on Beef , para. 137). 
1340 Appellate Body Reports, EC – Seal Products , para. 5.116. 
1341 Appellate Body Reports, EC – Seal Products , paras. 5.116-5.117 (emphasis added). 
1342 Appellate Body Reports, EC – Seal Products , paras. 5.130 and 6.1(b)(i). WT/DS384/RW • WT/DS386/RW 
 
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  7.7.2  Judicial economy 
7.626.  The complainants request us to address their claims under Article III:4 of the GATT 1994, 
and not to exercise judicial economy in this regard.1343 We recall that panels have full discretion to 
exercise judicial economy on a claim1344 a s  l o n g  a s  t h i s  d o e s  n o t  a m o u n t  t o  " f a l s e  j u d i c i a l  
economy".1345 
7.627.  The original panel held that under Arti cle III:4 of the GATT 1994, "[a]ccording 'treatment 
no less favourable' [in the sense of Article III:4] means … according conditions of competition no 
less favourable to the imported product than to the like domestic product".1346 The original panel 
applied this reasoning in its analysis of less favourable treatment under Article 2.1 of the TBT Agreement, and emphasized the close connect ion between Article 2.1 of the TBT Agreement 
and Article III:4 of the GATT 1994.
1347 In light of its findings under Article 2.1, the original panel 
considered it unnecessary to assess the claims under Article III:4.1348 Thus, the original panel 
equated the less favourable treatment tests under Article 2.1 of the TBT Agreement and 
Article III:4 of the GATT 1994. 
7.628.  Subsequently, in US – Clove Cigarettes the Appellate Body established that the analysis of 
less favourable treatment under Article 2.1 of the TBT Agreement entails assessing whether the detrimental impact on competitive opportunities for imports stems exclusively from legitimate 
regulatory distinctions.
1349 The Appellate Body followed this approach in addressing the appeal of 
the original panel's Article 2.1 finding in US – COOL .1350 
7.629.  As noted, the Appellate Body in EC – Seal Products  confirmed that the "less favourable 
treatment" tests under Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement are 
different. Therefore, and taking into account the complainants' explicit request to address their 
Article III:4 claims1351, we shall not exercise judicial economy. We address the established three 
elements of the Article III:4 test. 
7.7.3  Likeness 
7.630.  As we have mentioned above, the complainants argue, and the United States does not 
contest, that imported and US cattle and hogs continue to be like products.1352 
                                               
1343 Canada's first written submission, para. 22; Mexico's first written submission, para. 55. 
1344 In India – Patents the Appellate Body established that "[a] panel has the discretion to determine the 
claims it must address in order to resolve the di spute between the parties" . Appellate Body Report, India – 
Patents, para. 87. 
1345 In Australia – Salmon , the Appellate Body held that the task of a panel is to "address those claims 
on which a finding is necessary in order to enable the DSB to make su fficiently precise recommendations and 
rulings … 'in order to ensure effective resolution of di sputes'", and cautioned that "provid[ing] only a partial 
resolution of the matter at issue would be fa lse judicial economy". Appellate Body Report, Australia – Salmon , 
para. 223. In US – Wool Shirts and Blouses , the Appellate Body found that neither Article 11 of the DSU nor 
"previous GATT practice require[d] a panel to examine all legal claims  made by the complaining party" 
(emphasis omitted). The Appellate Body agreed with the pr actice of previous panels to make "findings only on 
those claims that such panels concluded were necessary to resolve the particular matter". Appellate Body Report, US – Wool Shirts and Blouses , p. 18. 
1346 Panel Reports, US – COOL, para. 7.276 (citing Appellate Body Report, Korea – Various Measures on 
Beef, para. 135 (emphasis original)). 
1347 Panel Reports, US – COOL, para. 7.277. The Appellate Body also recognized the close relationship 
between "less favourable treatment" tests in Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994, finding that "relevant guidance for interpreting the term 'treatment no less favourable' in Article 2.1 may be found in the ju risprudence relating to  Article III:4 of the GATT 1994". Appellate Body 
Reports, US – COOL , para. 269. 
1348 Panel Reports, US – COOL, para. 7.807. Like the original panel, the Appellate Body did not make 
any findings on Article III:4 of the GATT 1994 in th e original dispute. See Appellate Body Reports, US – COOL , 
para. 493. 
1349 Appellate Body Report, US – Clove Cigarettes , paras. 174-175. 
1350 Appellate Body Reports, US – COOL , paras. 271-272. 
1351 Canada's first written submission, para. 22; Mexico's first written submission, para. 55. 
1352 Canada's first written submission, para. 92; Mexico's first written submission, para. 217. WT/DS384/RW • WT/DS386/RW 
 
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  7.631.  The concept of likeness in Article 2.1 of the TBT Agreement should be read in the context 
of Article III:4 of the GATT 1994.1353 In addition, the legal tests for likeness in both Article 2.1 and 
Article III:4 concern the determination of the "c ompetitive relationship between and among the 
products at issue"1354, and in the context of Article 2.1 of the TBT Agreement we have found that 
Canadian cattle and US cattle, and Mexican cattle  and US cattle, are like products, and that 
Canadian hogs and US hogs are also like products.1355 
7.632.  In the original dispute, the original panel established that "addressing and indicating 
'origin' is the essence and rationale of the [original] COOL measure".1356 Based on previous 
disputes, the original panel recalled that "products that [were] distinguished solely on the basis of their origin were found to be like products within the meaning of Article III:4".
1357 The original 
panel concluded that there was no need to engage in any further analysis to establish the likeness 
of the products at issue.1358 
7.633.  The changes introduced by the 2013 Final Ru le do not affect the rationale of the original 
COOL measure to address the origin of the products at issue; the same rationale continues to 
apply to the amended COOL measure. The produc ts at issue are also the same, and can be 
distinguished solely on the basis of origin. Like the original panel, we consider this sufficient to establish the likeness of the products at issue. 
7.634.  Accordingly, we conclude that the products at issue are like products within the meaning of 
Article III:4 of the GATT 1994. 
7.7.4  Law, regulation, or requirement affe cting the internal sale, offering for sale, 
purchase, transportation, distribution , or use of the products at issue 
7.635.  The complainants allege, and the United States does not contest, that the amended COOL 
measure is a "law, regulation, or requirement affecting [the] internal sale, offering for sale, purchase, transportation, distribution, or use" of the products at issue.
1359 
7.636.  Based on the text of Article III:4, this element entails two considerations: (i) whether the 
measure is a law, regulation, or requirement within the meaning of Article III:4; and (ii) whether the measure affects the internal sale, offering for sale, purchase, transportation, distribution, or 
use of the products at issue.
1360 
7.637.  We recall that the amended COOL measure consists of a statutory and a regulatory 
element.1361 Thus, by virtue of their legal form, these instruments qualify as a law and regulation, 
respectively. In addition, we have established that the amended COOL measure is a technical 
regulation, in part because of its mandatory nature.1362 The mandatory nature of the amended 
COOL measure confirms that the amended COOL measure falls within "laws, regulations or requirements" as those terms are used in Article III:4 of the GATT 1994.
1363 
                                               
1353 Appellate Body Report, US – Clove Cigarettes , para. 120. See also Panel Reports, US – COOL , 
para. 7.234. 
1354 Appellate Body Report, US – Clove Cigarettes , para. 120. 
1355 See section 7.5.3 above. 
1356 Panel Reports, US – COOL, para. 7.255. The original panel stated that "[a]s regards muscle cuts, 
the COOL measure distinguishes the products at issue according to the country in which the birth, raising and slaughtering of the animal from wh ich meat is deri ved took place". 
1357 Panel Reports, US – COOL, para. 7.254 (citing Panel Reports, Turkey – Rice , para. 7. 214; Canada – 
Autos, para. 10.74; US – FSC (Article 21.5 – EC) , para. 8.133; India – Autos , para. 7.174; and Canada – 
Wheat Exports and Grain Imports, para. 6.164 and footnote 246). 
1358 Panel Reports, US – COOL, paras. 7.255-7.256. The original panel stated that "[a]s regards muscle 
cuts, the COOL measure distinguishes the products at issu e according to the country in which the birth, raising 
and slaughtering of the animal from which meat is deri ved took place". 
1359 Canada's first written submission, para. 93; Mexico's first written submission, para. 224. 
1360 See Appellate Body Report, US – FSC (Article 21.5 – EC) , paras. 208-209. 
1361 See section 7.3 above. 
1362 See 7.5.2 above. 
1363 See Panel Reports, India – Autos , paras. 7.190-7.191; and China – Publications and Audiovisual 
Products,  para. 7.1513. WT/DS384/RW • WT/DS386/RW 
 
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  7.638.  The second part of the test is that the measure "affect[s] … internal sale, offering for sale, 
purchase, transportation, distribution, or use" of the products at issue. The Appellate Body considered the term "affecting" to have a broad scope of application
1364, and qualified it as a 
"link between identified types of government action ('laws, regulations and requirements') and 
specific transactions, activities and uses relating to products in the marketplace ('internal sale, 
offering for sale, purchase, transportation, distribution or use')".1365 
7.639.  According to Annex 1.1 of the TBT Agreement, a technical regulation is a document which 
lays down product characteristics. In its analysis of whether the original COOL measure constitutes 
a technical regulation, the original panel had found that the measure laid down one or more product characteristics through a country of origin labelling requirement.
1366 As noted1367, 
the technical changes introduced by the 2013 Final Rule do not affect the applicability of this 
finding to the amended COOL measure. In fact, both the original and amended COOL measures 
require labelling of meat at retail, i.e. at the point of sale to consumers. By imposing a country of origin labelling requirement at retail, the amended COOL measure affects sales in the above broad 
sense as it "has an effect on"
1368 "specific transactions, activities and uses relating to products in 
the marketplace ('internal sale, offering for sale, purchase, transportation, distribution or use')" within the meaning of Article III:4.
1369 
7.640.  Accordingly, we conclude that the amende d COOL measure satisfies the second element of 
the Article III:4 test. 
7.7.5  Less favourable treatment1370 
7.641.  According to the Appellate Body, Article 2.1 of the TBT Agreement and Article III:4 of the 
GATT 1994 are both concerned with whether the measure at issue "modifies the conditions of 
competition in the market of the regulating Memb er to the detriment of the group of imported 
products vis-à-vis  the group of like domestic products."1371 As explained, the Appellate Body 
established that under Article III:4 of the GATT 1994, "an analysis of whether the detrimental 
impact on competitive opportunities for like imported products is attributable to the specific measure at issue does not involve an assessment of whether such detrimental impact stems 
exclusively from a legitimate regulatory distinction".
1372 
7.642.  We found that the amended COOL measure has a detrimental impact on the competitive 
opportunities of imported livestock in comparison with like US products.1373 As the Appellate Body 
has made clear, "[i]f the outcome of [the assessment of the implications of the contested measure 
for the equality of competitive conditions between imported and like domestic products] is that the 
measure has a detrimental impact on the conditions of competition for like imported products, then such detrimental impact will amount to trea tment that is 'less favourable' within the meaning 
of Article III:4."
1374 Hence, we conclude that the amended COOL measure accords less favourable 
treatment within the meaning of  Article III:4 of the GATT 1994. 
                                               
1364 Appellate Body Reports, EC – Bananas III, para. 220; and US – FSC (Article 21.5 — EC) , para. 210. 
1365 Appellate Body Report, US – FSC (Article 21.5 — EC) , para. 208. 
1366 Panel Reports, US – COOL , para. 7.214. 
1367 See section 7.5.2 above. 
1368 The Appellate Body interpreted th e word "affecting" as "hav[ing] an effect on". Appellate Body 
Report, EC – Bananas III, para. 220. 
1369 Appellate Body Report, US – FSC (Article 21.5 — EC) , para. 208. 
1370 As under Article 2.1 of the TBT Agreement, this section applies to the amended COOL measure in 
regard to muscle cuts from US-slaughtered livestock (C ategories A-C). As explained above, the complainants 
do not bring claims either in regard to muscle cuts  from foreign-slaughtered an imals (Category D) or the 
ground meat aspect of the amended COOL measure (Cat egory E). See sections 7.1 and 7.4 above. See also 
Canada's and Mexico's responses to Panel question No. 47. 
1371 Appellate Body Report, US – Clove Cigarettes , para. 180. 
1372 Appellate Body Reports, EC – Seal Products , para. 5.105. See also ibid., para. 5.117. 
1373 See section 7.5.4.1 above. 
1374 Appellate Body Reports, EC – Seal Products , para. 5.101 (citing Appellate Body Reports, US – Clove 
Cigarettes , para. 179; Thailand – Cigarettes (Philippines) , para. 128; and Korea – Various Measures on Beef , 
para. 137). WT/DS384/RW • WT/DS386/RW 
 
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  7.7.6  Conclusion on Article III:4 of the GATT 1994 
7.643.  In the light of these conclusions, we find that the complainants have made a prima facie 
case, not rebutted by the United States, that the amended COOL measure fulfils all three elements 
of the legal test under Article III:4 of the GATT 19 94. Accordingly, we find that that the amended 
COOL measure violates Article III:4 of the GATT 1994 in respect of muscle cuts from US-
slaughtered livestock (Categories A-C). 
7.8  Article XXIII:1(b) of the GATT 1994 
7.644.  In addition to their claims of violation, the complainants raise a non-violation claim under 
Article XXIII:1(b) of the GATT 1994, which provides: 
If any contracting party should consider that any benefit accruing to it directly or 
indirectly under this Agreement is being nullified or impaired or that the attainment of 
any objective of the Agreement is being impeded as the result of 
…  (b) the application by another contracting party of any measure, whether or not it 
conflicts with the provisions of this Agreement, … 
… the contracting party may, with a view to the satisfactory adjustment of the matter, 
make written representations or proposals to the other contracting party or parties 
which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it. 
7.645.  Article 26.1 of the DSU establishes the applicable rules for "Non-Violation Complaints of 
the Type Described in Paragraph 1(b) of Articl e XXIII of GATT 1994", and provides in relevant 
part: 
Where the provisions of paragraph 1(b) of Article XXIII of GATT 1994 are applicable to 
a covered agreement, a panel or the Appellate Body may only make rulings and 
recommendations where a party to the dispute considers that any benefit accruing to it directly or indirectly under the releva nt covered agreement is being nullified or 
impaired or the attainment of any objective of that Agreement is being impeded as a 
result of the application by a Member of any measure, whether or not it conflicts with the provisions of that Agreement. Where and to the extent that such party considers and a panel or the Appellate Body determines that a case concerns a measure that 
does not conflict with the provisions of a covered agreement to which the provisions of 
paragraph 1(b) of Article XXIII of GATT 1994 are applicable, the procedures in this Understanding shall apply, subject to the following: 
(a) the complaining party shall present a detailed justification in support of any 
complaint relating to a measure which does not conflict with the relevant covered agreement; 
(b) where a measure has been found to nullify  or impair benefits under, or impede the 
attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure. However, in such cases, the panel or the Appellate Body shall recommend that the Member concerned make a mutually 
satisfactory adjustment … . 
7.646.  We are mindful that "the remedy in Article XXIII:1(b) 'should be approached with caution 
and should remain an exceptional remedy'."
1375 As noted by the Appellate Body, "Members 
                                               
1375 Appellate Body Report, EC – Asbestos , para. 186 (citing Panel Report, Japan – Film , para 10.37). 
See also Panel Reports, US – COOL , paras. 7.900-7-901. WT/DS384/RW • WT/DS386/RW 
 
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  negotiate the rules that they agree to follow and only exceptionally would expect to be challenged 
for actions not in contravention of those rules."1376 
7.8.1  Jurisdiction of Article 21.5 complianc e panels concerning non-violation claims 
7.647.  As a preliminary matter, the United States contends that non-violation claims are outside 
the terms of reference of panels established under Article 21.5 of the DSU. According to the 
United States, the text of Article 21.5 only permits compliance panels to consider either the existence of a measure taken to comply with a previous adverse finding, or the consistency with a 
covered agreement of a measure taken to comply.
1377 The United States argues that the latter 
involves a determination of whether a measure taken to comply is inconsistent  with a covered 
agreement. In the United States' view, such ex amination of a measure's "consistency" does not 
entail the question of non-violation  nullification or impairment, which by definition concerns a 
measure that does not conflict with the provisions of a covered agreement.1378 
7.648.  Canada and Mexico counter that a measure which does not conflict with the covered 
agreements may still be inconsistent with them, meaning that non-violation claims under 
Article XXIII:1(b) of the GATT 1994 are with in the scope of Article 21.5 of the DSU.1379 
According to the complainants, inconsistency with a covered agreement within the meaning of Article 21.5 is broader than "conflict" with, or "violation" of, a covered agreement.
1380 
7.649.  In essence, the parties dispute the scope of Article 21.5 vis-à-vis  Article 26 of the DSU and 
Article XXIII:1(b) of the GATT 1994. This requires  determining whether an "inconsistent" measure 
necessarily "conflicts" with a provision of the covered agreements, or whether the notion of "inconsistency" is broad enough to encompass measures that do not "conflict" with the covered 
agreements, but that nevertheless nullify or impair a benefit accruing to a WTO Member. 
7.650.  The scope of inquiry of compliance panels  is determined by Article 21.5 of the DSU. 
In relevant part, Article 21.5 provides: 
Where there is a disagreement as to the existence or consistency with a covered 
agreement of measures taken to comply with recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, 
including wherever possible resort to the original panel. 
7.651.  The Appellate Body has clarified "the appropriate subject-matter  of Article 21.5 
proceedings" by explaining that, "[a]s in original dispute settlement proceedings, the 'matter' in 
Article 21.5 proceedings consists of two elements: the specific measures  at issue and the legal 
basis of the complaint (that is, the claims )."
1381 In their requests for the establishment of a 
compliance panel, the complainants identify the specific measure at issue, namely the amended 
                                               
1376 Appellate Body Report, EC – Asbestos , para. 186 (citing Panel Report, Japan – Film , para 10.36). 
1377 United States' first written submission, para. 200. 
1378 United States' first written submission, paras. 199 and 202, and second written submission, 
para. 166. 
1379 Canada's second written submission, para. 154; Mexico's second written submission, paras. 144-
145 and 150-152. 
1380 Canada's second written submission, para. 154; Mexico's second written submission, para. 151. 
The parties' submissions include refere nce to both "conflict" and "violati on" in this context. As noted by 
the Appellate Body, cases under Article XXIII:1(b) of the GATT 1994 are sometimes described as "non-violation" cases, though the word "non-violation" does not appear in that provisio n. Appellate Body Reports, EC 
– Asbestos , para. 185. We observe that the heading of Article 26.1 of the DSU is "Non -Violation  Complaints of 
the Type Described in Paragraph 1(b) of Articl e XXIII of GATT 1994". (emphasis added) In addition, 
Article 26.1 references the situation where "a case concerns a measure that does not conflict  with the 
provisions of a covered agreement to which the provisions  of paragraph 1(b) of Article XXIII of GATT 1994 are 
applicable." (emphasis added) 
In their arguments, the parties appear  to concur in treating "conflict" and "violation" as equivalent in 
the relevant provisions of the GATT 1994 and DSU. See Canada's second written submission, para. 155 (stating that "the first sentence of DSU Article 26.1 confirms the jurisdiction  of 'a panel' in general to make 
such a finding [of non-violation]"); Mexi co's second written submission, paras.  145-152; and United States' 
first written submission, para. 202. 
1381 Appellate Body Report, EC – Bed Linen (Article 21.5) , para. 78 (emphasis original). See also 
Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 64. WT/DS384/RW • WT/DS386/RW 
 
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  COOL measure, and include claims under Article XXIII:1(b) of the GATT 1994. In turn, our terms 
of reference require us "[t]o examine, in the light of the relevant provisions of the covered agreements cited by the parties to the disp ute, the matter referred to the DSB" in the 
complainants' requests for the establishment of a compliance panel.
1382 Accordingly, the "subject-
matter" of these compliance proceedings does not a priori preclude  the complainants' claims  under  
Article XXIII:1(b) of the GATT 1994.1383 
7.652.  We turn to the jurisdictional issue raised by the United States, beginning with the ordinary 
meaning of the disputed treaty terms, namely "consistency"1384 and "conflict(s)".1385 A dictionary 
definition of "consistency" is "being consistent; agreement ( with something, of things etc.); 
uniformity, regularity" – with "consistent" defined as "congruous, compatible"1386 – whereas 
"conflict" is defined as "be[ing] incompatible".1387 In turn, "compatible" is defined as "able to be 
admitted or employed together or to coexist in the same subject; consistent, congruous".1388 
These dictionary definitions appear to overlap in terms of some notion of "compatibility", but they 
do not clearly settle whether "consistency" in Article 21.5 may be broader than – or instead must 
be exactly coterminous with – that which does not "conflict". In any event, we refrain from simply 
equating the ordinary meaning of these terms "with the meaning of words as defined in dictionaries", as this has been viewed by the Appellate Body as "too mechanical an approach".
1389 
As the Appellate Body has stated, "dictionaries are important guides to, not dispositive statements 
of, definitions of words appearing in agreements and legal documents."1390 We therefore proceed 
to examine the relevant context of the disputed terms. 
7.653.  The terms "consistent" and "conflict" (or variations thereof) appear in various places 
throughout the covered agreements. Most relevantly, the term "consistent" appears in some form 
in Articles 3.7, 19.1, and 21.5 of the DSU, and "conflict(s)" appears in Article 26 of the DSU and 
Article XXIII:1(b) of the GATT 1994. Neither agre ement defines these terms or explains their 
relationship. The French and Spanish versions of the DSU and GATT 1994 similarly use different 
terms in Articles 3.7, 19.1, an d 21.5, on the one hand, and Arti cles 26 of the DSU and XXIII:1(b) 
of the GATT 1994 on the other.1391 
7.654.  Article 19.1 of the DSU provides: 
Where a panel or the Appellate Body concludes that a measure is inconsistent with a 
covered agreement, it shall recommend that the Member concerned9 bring the 
measure into conformity with that Agreement.10 
_______________ 
9 The "Member concerned" is the party to the dispute to which the panel or 
Appellate Body recommendations are directed. 
                                               
1382 See Constitution of the Panel, Note by the Secretariat, WT/DS384/27 and WT/DS386/26, para. 2. 
1383 See Articles 7.1 and 7.2 of the DSU. The Appellate Body considered that the phrase "these dispute 
settlement procedures" in Article 21.5 "does encompass Article 6.2 of the DSU, and that Article 6.2 is generally 
applicable to panel requests under Article 21.5." Appell ate Body Report, US – FSC (Article 21.5 – EC II) , para. 
59. Although the Appell ate Body did not consider it necessary "to determine the precise scope of th[e] phrase 
['these dispute settlement procedures' in Article 21.5 of the DSU]", we follow the Appellate Body's guidance in referring to the complainants' panel requests, made purs uant to Articles 6 and 21.5 of the DSU, to determine 
the subject-matter of this dispute.  
1384 Article 21.5 of the DSU. 
1385 Verb used in Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the DSU. 
1386 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 497.  
1387 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 488. 
1388 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 469. 
1389 Appellate Body Report, US – Gambling , para. 166. 
1390 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 248. 
1391 In French, the corresponding translation for "con sistent" is "compatible", while "conflict" is 
translated as "contraire". In Spanis h, the corresponding translation for "consistent" is "compatible", while 
"conflict" is translated as "contraria". WT/DS384/RW • WT/DS386/RW 
 
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  10 With respect to recommendations in cases not involving a violation of GATT 1994 or 
any other covered agreement, see Article 26. 
7.655.  In turn, Article 26.1(b) of the DSU provides that where a non-violation claim is upheld, 
"there is no obligation to withdraw the measure", but that instead "the panel or the Appellate Body 
shall recommend that the Member concerned make  a mutually satisfactory adjustment". 
7.656.  Two distinct remedial approaches are thereby established: one for measures found to be 
"inconsistent" with one of the covered agreem ents (the panel or the Appellate Body shall 
recommend that the measure be brought into conformity – Article 19.1), and another for 
measures found to nullify or impair benefits without violation of a covered agreement (the panel or the Appellate Body shall recommend that the Memb er make a mutually satisfactory adjustment – 
Article 26.1).
1392 Reading these two provisions together, it  could be argued that a finding that a 
measure is "inconsistent" within the meaning of Article 19.1 does not encompass a finding of 
nullification or impairment of benefits without violation of a covered agreement. 
7.657.  Nevertheless, we are mindful that the Appe llate Body has warned against an interpretive 
approach that would "eviscerate the distinctive meaning that must be respected in the words of 
the text".1393 In our view, "consistency" in Article 21.5 and non-violation under Article 26.1 
(i.e. "a measure that does not conflict") should not be given identical meaning so as to exclude 
claims of the latter from reviews of compliance with the former. 
7.658.  The Appellate Body has clarified that "Article XXIII:1(b) of the GATT 1994 sets forth a 
separate cause of action for a claim that, through the application of a measure, a Member has 'nullified or impaired' 'benefits' accruing to anot her Member, 'whether or not that measure conflicts 
with the provisions' of the GATT 1994. Thus, it is not necessary, under Article XXIII:1(b), 
to establish that the measure involved is inconsistent with, or violates, a provision of the GATT 1994."
1394 Although the Appellate Body used the word "inconsistent" in its clarification of 
non-violation claims, it was not addressing the term "consistency" in the specific context of 
Article 21.5 of the DSU. Nor was it presented with  the question of the jurisdiction of compliance 
panels. Indeed, the Appellate Body stressed the na rrowness of the specific question raised on 
appeal in that dispute, which related to the scope of application of Article XXIII:1(b).1395 
We therefore decline to read the Appellate Body's analysis as dispositive of the jurisdictional issue before us in the present dispute. 
7.659.  Article 26 of the DSU provides that for "case[s] concern[ing] a measure that does not 
conflict with the provisions of a covered agreem ent" under Article XXIII:1(b) of the GATT 1994, 
"the procedures in this Understanding shall apply, subject to the following". It then proceeds to list 
certain modifications to the DSU rules, none of which concern Article 21.5.
1396 Additionally, 
Article 26 of the DSU refers generally to "a panel" making rulings and recommendations on non-
violation complaints. We find no reason, and the parties have not provided any, to conclude that a compliance panel established pursuant to Article 21.5 would be excluded from the meaning of 
"panel" in this context.
1397 
7.660.  To the extent that "conflict(s)" and "violation" can be considered equivalents1398, we draw 
further support from Article 23.1 of the DSU, which provides that "[w]hen Members seek the 
redress of a violation of obligations or other nullification or impairment of benefits under the 
covered agreements  … they shall have recourse to, and abide by, the rules and procedures of this 
                                               
1392 The dichotomy is strengthened by Article 3.7 of th e DSU, which foresees withdrawal as the result of 
a finding that a measure is "inconsistent with th e provisions of any of the covered agreements". 
1393 Appellate Body Report, Japan – Alcoholic Beverages II , p.26. 
1394 Appellate Body Report, EC – Asbestos , para. 185. The Appellate Body also stated that "a measure 
may, at one and the same time, be inconsistent with, or in breach of, a provision of the GATT 1994 and, nonetheless, give rise to a cause of acti on under Article XXIII:1(b)". Ibid. para. 187 
1395 Appellate Body Report, EC – Asbestos , paras. 184 and 190. 
1396 Indeed, Article 26.1(c) provides that " notwithstanding the provisions of Article 21 ", the arbitration 
provided for in Article 21.3 may include additional determinations and suggestions. This may suggest that the other provisions of Article 21 of the DSU, including Ar ticle 21.5, "shall apply" to  the cases referred to in 
Article 26.1 of the DSU.  
1397 See Canada's second written submission, para. 155.  
1398 See footnote 1380 above. WT/DS384/RW • WT/DS386/RW 
 
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  Understanding."1399 Thus, as part of strengthening the multilateral system, WTO Members have 
envisaged that non-violation nullification or impairment is to be redressed through the DSU, without exclusion of any provisions therein. 
7.661.  The objective of Article 21.5 of the DSU is "to promote the prompt compliance with DSB 
recommendations and rulings … by making it unnecessary for a complainant to begin new 
proceedings and by making efficient use of the original panelists".
1400 It is clear that excluding 
non-violation claims from Article 21.5 proceedings would not promote prompt compliance with 
DSB recommendations and rulings and would not be e fficient. Such exclusion could plausibly result 
in the original complainant having to request the establishment of an entirely new panel to adjudicate the non-violation complaint following the original respondent's measures to comply with a recommendation or ruling. Indeed, the Appellate Body has clarified a compliance panel's 
"mandate to assess whether a 'measure taken to comply' is fully consistent with WTO obligations" 
– in recognition of the possibility that "a 'measure taken to comply' may be inconsistent  with WTO 
obligations in ways different from the original measure."
1401 If non-violation claims were 
inadmissible under Article 21.5, a Member could avoid review under that Article by taking 
measures that do not violate the covered agreements, but that nevertheless nullify or impair benefits accruing to another Member. 
7.662.  In such a situation, a complainant would have to pursue both a compliance panel and an 
entirely new panel to adjudicate the violation and non-violation aspects of the same measure taken to comply. This seems incongruous with  the objective of prompt dispute settlement 
enshrined in Article 3.3 of the DSU, which specifically refers to "situations in which a Member 
considers that any benefits accruing to it directly or indirectly under the covered agreements are 
being impaired by measures taken by another Member". It would also be at odds with the principle of "[p]rompt compliance with recommendations or ru lings of the DSB" found in Article 21.1 of the 
DSU, and reflected in the design of Article 21. 5 of the DSU, which prescribes an expeditious 
procedure including, wherever possibl e, resort to the original panel.
1402 In our view, such systemic 
considerations weigh strongly against excluding non-violation claims from the jurisdiction of 
compliance panels established under Article 21.5 of th e DSU. Additionally, it seems to us that such 
a reading would lead to increased litigation costs for all Members involved in disputes and increased costs for the WTO. 
7.663.  Based on the above, we conclude 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. Accordin gly, we find that the complainants' claims 
under Article XXIII:1(b) of the GATT 1994 are properly  before us and fall within the competence of 
this Article 21.5 compliance Panel. 
7.8.2  Judicial economy 7.664.  Having found that we have jurisdiction to entertain the complainants' non-violation claims, 
we now turn to consider whether to exercise judicial economy on the substance of those claims. In 
doing so, we take into account that we have  already found that the amended COOL measure 
violates Article III:4 of the GATT 1994 and Arti cle 2.1 of the TBT Agreement. The text of 
Article XXIII:1(b) of the GATT 1994 clearly stipulates that a claim under that provision may arise 
whether or not  the contested measure conflicts with the GATT 1994. It is therefore possible for a 
measure to simultaneously violate a provision of the GATT 1994 or another covered agreement, 
and still give rise to a cause of action under Article XXIII:1(b).
1403 
7.665.  In assessing the propriety of judicial economy in this particular dispute, we recall that the 
aim of the WTO dispute settlement system is "to resolve the matter at issue and 'to secure a 
                                               
1399 Article 23.1 of the DSU (emphasis added). 
1400 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 212 (citing Appellate Body 
Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , para. 151). See also 
Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 72; and Mexico's second 
written submission, para. 145. 
1401 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 79 (emphasis original). 
1402 See also Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 72. 
1403 See, e.g. Appellate Body Report, EC – Asbestos, para. 187. WT/DS384/RW • WT/DS386/RW 
 
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  positive solution to a dispute'".1404 In general, a panel may refrain from ruling on a claim "as long 
as it does not lead to a 'partial resolution of the matter'".1405 The original panel addressed judicial 
economy on the complainants' non-violation claims based on the criterion of whether "compliance … with the finding on Article III:4 [of the GATT 1994] would necessarily remove the basis of the … 
claim of nullification or impairment ".
1406 The original panel exercised judicial economy, reasoning 
that compliance with the findings of de facto  discrimination under Article 2.1 of the TBT Agreement 
would have removed the basis of the complainants' claims of non-violation nullification or 
impairment.1407 
7.666.  The findings of violation in this compliance dispute differ from those of the original panel in 
two significant respects. First, our finding of violation under Article 2.1 of the TBT Agreement 
reflects the fact that Article 2.1 of the TBT Agreement does not prohibit all detrimental 
modifications of the conditions of competition, bu t only those that do not stem exclusively from a 
"legitimate regulatory distinction".1408 Hence, a measure that modifies the conditions of 
competition pursuant to a legitimate regulatory distinction may be consistent with Article 2.1 of 
the TBT Agreement, while still causing nullification or impairment of a benefit under 
Article XXIII:1(b) of the GATT 1994. In such a case , compliance with findings of violation under 
Article 2.1 of the TBT Agreement would not necessarily remove the basis for nullification or 
impairment. 
7.667.  Second, we have found that the amended COOL measure accords less favourable 
treatment to imported livestock than to like  US livestock under Article III:4 of the GATT 1994.1409 
In reaching this finding, we noted the Appellate Body's emphasis that this provision is concerned 
with the "effective equality of opportunities for imported products to compete with like domestic 
products".1410 According to the Appellate Body, this does not require an additional inquiry into 
"whether the detrimental impact of a measure on competitive opportunities for like imported 
products stems exclusively from a legitimate regulatory distinction".1411 
7.668.  Articles III:4 and XXIII:1(b) of the GATT 1994 are distinguishable in respect of their 
standards of discrimination. Whereas Article III:4 concerns the "effective equality" of relative 
conditions of competition for like products of foreign and domestic origin, Article XXIII:1(b) calls 
for a temporal inquiry that compares "the competitive relationship between foreign and domestic 
products at two specific points in time, i.e. when the concession was granted and currently".1412 
7.669.  Thus, whether or not the exercise of judicial economy is appropriate in this dispute may be 
assessed by comparing (i) the competitive relationship between foreign and domestic products at 
the time concessions were granted, and (ii) the "effective equality" of competitive conditions for like foreign and domestic products. Unless the former is more favourable than the latter for the 
competitive opportunities of imported products, compliance with a finding of violation under 
Article III:4 (and consequent removal of detrimental impact) would necessarily remove the basis of the non-violation claim. 
7.670.  In this case, compliance by the United States with our finding of violation of Article III:4 
would require eliminating  the detrimental impact on competitive opportunities for Canadian and 
Mexican livestock altogether. Hence, restoring "effective equality" between foreign and domestic products in this regard would necessarily remove the basis of nullification or impairment claimed 
under Article XXIII:1(b). In fact, the complainants do not contend that the competitive relationship 
                                               
1404 See Appellate Body Report, Australia – Salmon , para. 223 (citing Article 3.7 of the DSU). 
1405 Appellate Body Report, US – Tuna II (Mexico) , para. 404 (citing Appellate Body Report, US – Upland 
Cotton , para. 732). 
1406 Panel Reports, US – COOL , para. 7.904 (citing GATT Panel Report, EEC – Oilseeds I , para. 142) 
(emphasis by original panel). 
1407 Panel Reports, US – COOL , para. 7.907. 
1408 Appellate Body Report, US – Clove Cigarettes , paras. 182 and 215. 
1409 The original panel exercised judicial economy with respect to the complainants' claims under 
Article III:4 of the GATT 1994 "[g]iven the close connection between Articl e 2.1 of the TBT  Agreement and 
Article III:4 of the GATT 1994 with respect to the nature of the obligations". Panel Reports, US – COOL , 
paras. 7.807.  
1410 See paras. 7.623-7.625 above. See also Appellate Body Reports, EC – Seal Products , para. 5.101. 
1411 Appellate Body Reports, EC – Seal Products , para. 5.117 (emphasis added). 
1412 Panel Report, Japan – Film , para. 10.380. WT/DS384/RW • WT/DS386/RW 
 
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  existing at the time relevant concessions were granted – the focus of Article XXIII:1(b) – would be 
more favourable than the standard of "effective equality" required under Article III:4. 
7.671.  Accordingly, we exercise judicial economy with respect to the complainants' non-violation 
claims. 
7.672.  At the same time, we are mindful of the Appellate Body's admonition that a panel may 
need to make additional findings in the event supp orting findings or determinations are overturned 
on appeal.1413 We also recognize that, while Mexico raises a conditional non-violation claim, 
Canada invokes Article XXIII:1(b) as an additional claim that is not made in the alternative to its 
other claims of violation.1414 Thus, we proceed to analyse the complainants' non-violation claims so 
that, were the Appellate Body to disagree with our findings on violation or with our approach to judicial economy, it will have the benefit of  our factual findings under Article XXIII:1(b). 
We emphasise that, given our exercise of judicial economy, our examination is conditional and 
primarily factual. We draw no legal conclusions in the subsequent sections of our Article XXIII:1(b) analysis, and we limit any interpretation of relevant terms and provisions to what is necessary to 
make conditional factual findings. 
7.8.3  Legal test 7.673.  The parties follow
1415 the three-step test for non-violation claims developed by the panel in 
Japan – Film : 
The text of Article XXIII:1(b) establishes three elements that a complaining party 
must demonstrate in order to make out a cognizable claim under Article XXIII:1(b): (1) application of a measure by a WTO Me mber; (2) a benefit accruing under the 
relevant agreement; and (3) nullification or impairment of the benefit as a result of 
the application of the measure.
1416 
7.674.  As the parties agree1417, the complainants bear the burden of proof to make a prima facie 
case for their non-violation claims.1418 Further, Article 26.1(a) of the DSU stipulates that 
"the complaining part[ies] shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement". This is in line with the 
exceptional nature of the non-violation remedy, which we bear in mind in examining the 
complainants' non-violation claims. 
7.8.4  Application of a measure 7.675.  Under the first limb of the test, the comp lainants must demonstrate the application of a 
measure by the United States. Both Canada and Mexico identify the amended COOL measure as 
the measure being applied by the United States that  allegedly nullifies or impairs benefits accruing 
to them under the GATT 1994.
1419 This has not been contested by the United States. 
                                               
1413 See Appellate Body Report, US – Tuna II (Mexico) , para. 405: 
the Panel should have made additional find ings under the GATT 1994 in  the event that the 
Appellate Body were to disagree with its view that the measure at issue is a "technical regulation" within the meaning of the TBT Agreement. As a result, it would have been necessary for the Panel to address Mexico's claims under  the GATT 1994 given that the Panel found no 
violation under Article 2.1 of the TBT Agreement. By failing to do so, the Panel engaged, in our 
view, in an exercise of "false judicial economy" and acted inconsistently with its obligations under 
Article 11 of the DSU. 
1414 Canada's opening statement at the meeting of the Panel, para. 55; and response to Panel question 
No. 77. 
1415 Canada's first written submission, para. 189; Mexico's first written submission, para. 236; 
United States' first written submission, para. 204. 
1416 Panel Report, Japan – Film , para. 10.41 (citing GATT Panel Report, EEC – Oilseeds I , paras. 142-152 
and GATT Working Party Report, Australia – Subsidy on Ammonium Sulphate , pp. 192-193). 
1417 See Canada's answer to Panel question No. 78 ; Mexico's answer to Panel question No. 78; 
United States' first written submission, para. 207; and response to Panel questions Nos. 78 and 79. 
1418 Panel Report, Japan – Film , para. 10.29. 
1419 Canada's first written submission, para. 190; Mexico's first written submission, para. 238. WT/DS384/RW • WT/DS386/RW 
 
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  7.8.5  Benefit accruing 
7.676.  Canada and Mexico claim that the benefit nullified or impaired consists of legitimate 
market access expectations from the United States' tariff concessions under the GATT 1994.1420 
Two issues are contested by the parties under this limb of the test: 
a. whether the benefits claimed are in fact "accruing" to the complainants within the 
meaning of Article XXIII:1(b) of the GATT 1994; and 
b. whether the complainants could reasonably have anticipated the amended COOL 
measure.1421 
7.677.  According to the United States' Goods Schedule annexed to the Marrakesh Protocol to the 
GATT 1994, the MFN bound rate tariff for item number 0103, live swine, is zero.1422 The North 
American Free Trade Agreement (NAFTA) rate for live swine is also zero.1423 Thus, the MFN bound 
rate under the Uruguay Round concessions and the NAFTA rate are identical. Based on this, we 
consider that benefits for live swine are currently being enjoyed by the complainants under the GATT 1994 in the sense that relevant trade is conducted under its concessions. Accordingly, 
the parties' disagreement the meaning of "benefit accruing" does not arise in respect of swine. 
7.678.  With regard to the bound rates for live cattle, the parties agree that under the relevant 
US tariff bindings from the Uruguay Round, the cu rrent MFN rate for live cattle is USD 0.01 per 
kilogram.
1424 They also agree that NAFTA accords duty-f ree access to the US market for Canadian 
and Mexican live cattle.1425 Access to the US market for live cattle is, thus, more preferential under 
NAFTA than it is under the relevant concessions from the Uruguay Round. In light of this, the parties disagree on the meaning of "benefit accr uing" under Article XXIII:1(b) of the GATT 1994. 
Specifically, the parties dispute whether a non-violation claim can be made in respect of benefits 
stemming from the Uruguay Round when the releva nt trade is conducted under tariff concessions 
arising from a preferential regional trade agreement. 
7.679.  Accordingly, the first issue concerns the defi nition of the term "benefit accruing" and arises 
only for cattle. The second issue concerns the factual existence of a "benefit accruing" and whether the complainants could reasonably have antici pated the amended COOL measure for both cattle 
and swine. 
7.8.5.1  Definition of  "benefit accruing" 
7.680.  In addressing the term "benefit accruing ", we are confined by our terms of reference, 
which require us "[t]o examine, in the light of the relevant provisions of the covered agreements  
cited by the parties to the dispute, the matter referred to the DSB by [the complainants]".
1426 
7.681.  Article XXIII:1(b) of the GATT 1994 refers to  "any benefit accruing to [a Member] directly 
or indirectly under [the GATT 1994]." Similarly, Article 26.1 of the DSU refers to "any benefit 
                                               
1420 Canada's first written submission, para. 183; Mexico's first written submission, paras. 239-241; 
United States' first written submission, para. 208. 
1421 United States' first written submission, paras. 208 and 210-211. 
1422 Schedule XX (United States of Americ a) annexed to the Marrakesh Protocol. 
1423 United States' first written submission, para. 210; Exhibit CDA-99. 
1424 Canada's first written submission, paras. 184 an d 190; and response to Panel question No. 75; 
Mexico's first written submission, para. 240; Exhibit MEX- 38; United States' response to Panel question No. 75. 
See also the Schedule XX (United States) annexed to the Marrakesh Protocol, tariff item number 0102.90.40 
(for live cattle). 
1425 Canada's response to Panel question No. 75;  Mexico's first written submission, para. 240; 
United States' first written submission, para. 210; Exhibit CDA-99. 
1426 See Constitution of the Panel, Note by the Secretariat, WT/DS384/27 and WT/DS386/26, para. 2 
(emphasis added). The relevant provis ion cited by Canada and Mexico for their non-violation nullification or 
impairment claims is Articl e XXIII:1(b) of the GATT 1994. See also Arti cle 3.2 DSU, which st ates that "[t]he 
Members recognize that [the dispute settlement system of the WTO] serves to preserve the rights and obligations of Members under the covered agreements , and to clarify the existing provisions of those 
agreements in accordance with customary rules of interp retation of public international law" (emphasis added) 
and Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 56. WT/DS384/RW • WT/DS386/RW 
 
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  accruing to [a Member] directly or indire ctly under the relevant covered agreement". 
Dictionary definitions of "benefit" include "an advantage, a good" and "pecuniary profit".1427 
Additionally, dictionary definitions of "accrue" include "of a benefit or sum of money[, to] be 
received in regular or increasing amounts" and "arise or spring as a natural growth or result".1428 
In principle, these definitions do not preclude that a benefit may "accrue" without being actually 
utilized. 
7.682.  By protecting benefits that accrue "directly or indirectly", both Article XXIII:1(b) of the 
GATT 1994 and Article 26.1 of the DSU suggest a possibly broad scope for the term "benefit". 
Further, both Articles refer to "any" benefit. Given the dictionary definition of the word "any", these provisions might apply "no matter which, or what"
1429 particular benefit is at issue. This 
would not support narrowing the term "benefit" to a specific manner of enjoyment or entitlement. 
7.683.  In any event, neither the dictionary defini tions of "benefit" and "accrue", nor the text of 
Article XXIII:1(b) of the GATT 1994 and Article 26.1  of the DSU, provides a clear and dispositive 
answer to the parties' disagreement about the me aning of "benefit accruing" as used in those 
provisions.1430 
7.684.  Under Article II of the GATT 1994, Members' goods schedules "annexed to [the 
GATT 1994] are … an integral part of … this Agreement."1431 B y  v i r t u e  o f  A r t i c l e  I I  o f  t h e  
GATT 1994, WTO tariff concessions serve as a form of insurance policy for Members.1432 
WTO Members have committed to an effective, g ood faith application of the WTO Agreement, 
including their goods schedules.1433 
7.685.  In fact, one of the principal objectives of  the WTO Agreement is to "promot[e] security and 
predictability in international trade … through the exchange of concessions".1434 The DSU also 
serves this objective by subjecting the "cov ered agreements", including Members' goods 
schedules, to WTO dispute settlement.1435 The enforceability – and hence the predictability – 
of multilateral concessions must not be compromised by concluding regional trade agreements. 
To do otherwise would upset the predictability of the multilateral trading system, and would render 
WTO concessions illusory, or – as termed by the respondent – "theoretical".1436 
                                               
1427 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 220. 
1428 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 16. The latter definition adds that it is especially used in law "of the coming into existence of a possible cause of action". 
1429 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 95. 
1430 See para. 7.652 above regarding the Appellate Bo dy's statement that "dictionaries are important 
guides to, not dispositive statements of, definitions of  words appearing in agreements and legal documents." 
Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 248. See also Appellate Body Report, US – 
Gambling , para. 166. 
1431 Article II:7 of the GATT 1994. According to Recitals 1, 3, and 4 of the WTO Agreement, the WTO 
also promotes "reciprocal and mutually  advantageous arrangements … directed to the substantial reduction of 
tariffs and other barriers to trade" and encourages "d evelop[ing] an integrated, more viable, and durable 
multilateral trading system". See further Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / 
EC – Bananas III (Article 21.5 – US) , paras. 432-433. 
1432 See in general Article II of the GATT 1994 and the Understanding on the Interpretation of 
Article II:1(b) of the GATT 1994, paras. 4 and 6. As Canada points out, WTO concessions would continue to apply if the NAFTA were terminated or otherwise ende d. Canada's second writte n submission, para. 157; and 
response to Panel question No. 81. Mexico clarifies that  "it has two 'layers' of ta riff bindings protecting its 
feeder cattle exports to the United States: NAFTA tari ff bindings and WTO tariff bind ings". Mexico's comments 
on the United States' response to Panel question No. 81, para. 87. 
1433 See also Articles XI:1 and XII of the WTO Agreement. As referred to by the Appellate Body, 
Article 26 of the Vienna Convention, which is entitled "Pac ta sunt servanda", sets fo rth that: "Every treaty in 
force is binding upon the parties to it and must be pe rformed by them in good faith." Appellate Body Report, 
EC – Sardines , para. 278. 
1434 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article 21.5 – US) , para. 433. 
1435 Article 3 of the DSU. 
1436 United States' response to Panel question No. 81. WT/DS384/RW • WT/DS386/RW 
 
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  7.686.  We note that Article XXVIII of the GA TT 1994 prescribes specific and formalised 
procedures allowing Members to modify the concessions in their Schedules.1437 These procedures 
require negotiation and agreement with Members primarily concerned, as well as consultations with other Members having substantial interest, and they cannot be circumvented.
1438 Moreover, 
modification does not come without a price: Members concerned "shall endeavour to maintain a 
general level of reciprocal and mutually advantageous concessions not less favourable to trade than that provided for in [the GATT 1994] prior to such negotiations", and "may include provision 
for compensatory adjustment with respect to other products".
1439 
7.687.  In regulating entry into preferential regional and bilateral trade agreements, Article XXIV 
of the GATT 1994 allows for the establishment of customs unions and free trade areas, stipulating 
that "[t]he purpose of a customs union or a free-trade area should be to facilitate trade … and not 
to raise barriers to … trade."1440 Thus, the formation of regional trade agreements is not meant to 
undermine WTO concessions and other obligations, or to frustrate WTO market access benefits. Indeed, Article XXIV:6 provides that if a Member  entering into a customs union or free trade 
agreement "proposes to increase any rate of duty inconsistently with the provisions of Article II, 
the procedure set forth in Article XXVIII shall apply". This reflects the principle that each WTO Member entering into a free trade agreement re mains bound by its WTO commitments, including 
bound tariff ceilings. 
7.688.  In sum, it would be an impermissibl y narrow reading of "benefit accruing" in 
Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the DSU to limit that term to concessions 
that are actually enjoyed or applied to trade in  the relevant goods. WTO Members have assigned 
primary importance to "[t]he prompt settlement of situations in which a Member considers that 
any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member".
1441 Accordingly, we are guided by the role of WTO 
dispute settlement as a "central element in providin g security and predictability to the multilateral 
system … [and] preserv[ing] the rights and obligations of Members under the covered agreements".
1442 
7.689.  In the context of this dispute, the approa ch argued by the United States, requiring goods 
to be subject to and currently utilizing a particular concession, would potentially bar Members from 
relying on WTO concessions for claims of non-violation when their trade was being conducted under a preferential trade agreement. We note that Article XXIII:1(b) of the GATT 1994 has been 
construed as protecting "commitments on conditions of competition for trade".
1443 In other words, 
"competitive opportunities "1444, not just their actual, or current, enjoyment are protected under 
Article XXIII:1(b) of the GATT 19 94 and Article 26.1 of the DSU.1445 Based on the above 
considerations, the phrase "benefit accruing" in Article XXIII:1(b) of the GATT 1994 and 
                                               
1437 See Article XXVIII of the GATT and the Understanding on the Interpretation of Article XXVIII of the 
GATT 1994. Members may also withdraw from the WTO Agreement pursuant to Article XV of the WTO Agreement. 
1438 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article 21.5 – US) , para. 452. 
1439 See Article XXVIII:2. 
1440 Article XXIV:4 of the GATT 1994. In addition, Ar ticle XXIV:5 requires that "duties and other 
regulations of commerce … shall not be higher or more  restrictive" than what they had been prior to the 
formation of the "customs un ion" (Article XXIV:5(a)) or "free trade area" (Article XXIV:5(b)). See also Article V 
of the GATS entitled "Economic Integration", which envi sages Members' entry "into an agreement liberalizing 
trade in services between or among the parties to such an agreement". Article V:4 of the GATS provides that 
any such agreement "shall be designed to facilitate trade between the parties to the agreement and shall not in respect of any Member outside the agreement raise the over all level of barriers to trade in services within the 
respective sectors or subsectors compared to th e level applicable prior to such an agreement." 
1441 Article 3.3 of the DSU. 
1442 Article 3.2 of the DSU. 
1443 GATT Panel Report, EEC – Oilseeds I , para. 150. 
1444 GATT Panel Report, EEC – Oilseeds I , para. 144 (quoted in Panel Report, Japan – Film , para. 10.35) 
(emphasis added). 
1445 See also Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article 21.5 – US) , para. 469 (stating in the context of Article 3.8 of the DSU that "the contested measure 
may not have actual trade effects" but that "in order to determine whether [a Member] has suffered 
nullification or impairment, 'competitive opportunities'  … must be taken into account"); and Appellate Body 
Report, Korea – Alcoholic Beverages , para. 120. WT/DS384/RW • WT/DS386/RW 
 
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  Article 26.1 of the DSU extends to multilateral  WTO market access concessions even when the 
relevant products are directly traded under a regional trade agreement according preferential market access. 
7.690.  We decline to read Article XXIII:1(b) of the GATT 1994 and Articl e 26.1 of the DSU in a 
manner that would render inutile multilateral concessions and key obligations in the covered 
agreements and frustrate their enforceability. In lig ht of the above, we conditionally conclude that 
the United States' relevant Uruguay Round multilateral concessions for cattle can be covered by 
the term "benefit accruing" in the sense of Article XXIII:1(b) and Article 26.1 of the DSU.
1446 
7.8.5.2  Reasonable anticipation of the measure 7.691.  As noted above, the second issue conteste d under the second limb of the Article XXIII:1(b) 
test is whether the benefit allegedly accruing to the complainants from Uruguay Round 
concessions creates legitimate expectations of market access. That is contingent on the contested 
measure not having been reasonably anticipated
1447 at the time the concessions were made.1448 
7.8.5.2.1  Timeline of the COOL measure 
7.692.  A chronology of the amended COOL measure is essential for addressing the question of its 
reasonable anticipation by the complainants. The statutory framework of the amended COOL measure, the COOL statute, consists of the Agricu ltural Marketing Act of 1946 as amended by the 
2002 Farm Bill and the 2008 Farm Bill.
1449 While the initial legislative act dates to 1946, 
the relevant country of origin labelling requirements for the products at issue originate in the 2002 Farm Bill, and were subsequently modified in the 2008 Farm Bill.
1450 
7.693.  The original panel found that "[a]lthough the COOL measure was introduced in its initial 
form by the 2002 Farm Bill, it took effect as a fully developed and enforceable legal requirement 
for the products at issue in [the original] dispute on 30 September 2008."1451 Based on this 
statutory framework, the 2009 and 2013 Final Rule s were the implementing regulations providing 
"the details necessary for the program to operate in the market".1452 Thus, the legislation of the 
contested COOL requirements emerged in 2002 an d took definitive shape in 2008, followed by 
more specific regulations in 2009 and 2013.1453 
7.694.  This chronology indicates that the relevant measure came into force years after the 
negotiation of the Uruguay concessions that are claimed to create the complainants' legitimate expectations of market access.
1454 Before reaching any conditional conclusion from this for 
                                               
1446 As explained above, this legal qu estion does not arise with respect to swine. See paras. 7.677-7.679 
above. 
1447 See Panel Report, Japan – Film , para. 10.76. 
1448 See Canada's first written submission, para. 190, and second written submission, para. 156; 
Mexico's first written submission, para. 239, and second written submission, para. 156; United States' first written submission, para. 208. 
1449 See section 7.3 above. 
1450 According to the USDA's background summary of  the 2009 Final Rule, "[t]he Farm Security and 
Rural Investment Act of 2002 (2002 Farm Bill), the 2002 Supplemental Appropriations Act (2002 Appropriations), and the Food, Conservation and Energy Act of 2008 (2008 Farm Bill) amended the Agricultural 
Marketing Act of 1946 (Act) to require retailers to notify their customers of the country of origin of covered commodities ." 2009 Final Rule, p.2658 (emphasis added). Furthe r, the USDA stated that the 2009 Final Rule 
was "the direct result of statutory obligations to implement the COOL provisions of the 2002 and 2008 Farm Bills." 2009 Final Rule, p.2693. See also 2013 Final Rule, p. 31367. 
1451 Panel Reports, US – COOL , para. 7.797. 
1452 United States' first written submission, para. 9. 
1453 This development of the original and amended C OOL measures is confirmed by the account of the 
Congressional Research Service. "With the passage of the 2002 farm bill, retail-level COOL was to become mandatory for … beef [and] pork … starting September 30, 2004". After postponement of implementation by Appropriations Acts of 2004 and 2006, "[p]rovisions dealing with record-keeping requirements, the factors to be considered for labeling U.S. and non-U.S. origin products, and penalties for noncompliance were modified 
[by the 2008 Farm Bill]." Exhibit CDA-8, p. 1; see also pp. 1-2 and 27 regarding the USDA's issuance of the 2009 and 2013 Final Rules. 
1454 For example, the panel in Japan – Film  considered that "in the case of measures shown … to have 
been introduced subsequent to the conclusion of the ta riff negotiations at issue, it is our view that the 
 WT/DS384/RW • WT/DS386/RW 
 
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  reasonable anticipation of the amended COOL me asure, we analyse other factors argued by the 
United States. 
7.8.5.2.2  Connection to earlier measures in the United States 7.695.  A further question in the context of reasonable anticipation is whether a measure may be 
"so clearly contemplated in an earlier measure that [the complainants] should be held to have 
anticipated it".
1455 To demonstrate this, it would not be sufficient to show merely that the measure 
"is consistent with or a continuation of a past general  government policy", but rather that there is 
a "clear connection" between the challenged and earlier measures.1456 
7.696.  The United States argues that "imported me at, along with a host of other agricultural and 
non-agricultural goods, has been required to be labelled at the retail level with its country of origin since 1930, decades before the conclusion of the Uruguay Round or the NAFTA."
1457 According to 
the United States, its "own long history of labeling laws and policy discussion on meat and other 
products, as well as the proliferation of similar labeling regimes by other WTO Members, prior to the time the Uruguay Round was concluded" show that the complainants could have reasonably 
anticipated the amended COOL measure.
1458 
7.697.  Apart from the COOL statute1459, the United States refers to the Tariff Act of 19301460 as an 
earlier measure that required "imported meat … to be labelled at the retail level with its country of 
origin since 1930".1461 The Tariff Act of 1930 has required, since its enactment, the labelling of 
"every article of foreign origin".1462 Such articles of foreign origin would encompass imported meat, 
along with many other agricultural and non-agricultural goods.1463 
7.698.  We observe, however, that there are notable differences in the nature and extent of the 
obligations imposed by the Tariff Act of 1930 and the amended COOL measure. As explained by 
the United States in reference to the Tariff Act of 1930, "these previous labeling requirements did not apply to many of the products covered by the amended COOL measure, including meat derived 
from animals slaughtered in the United States."
1464 Indeed, according to the 2009 Final Rule: 
Under preexisting Federal laws and regulations, COOL is not universally required for 
the commodities covered by this rule. In particular, labeling of United States origin is 
not mandatory, and labeling of imported products at the consumer level is required 
only in certain circumstances. Thus, the Agency has not identified any Federal rules that would duplicate or overlap with this rule.
1465 
7.699.  The 2013 Final Rule makes a similar observation with regard to the requirement to give 
point-of-production information for the animals from which covered muscle cuts are derived: 
Under preexisting Federal laws and regulations, origin designations for muscle cut 
covered commodities need not specify the production steps of birth, raising, and 
                                                                                                                                               
[complainant] has raised a presumption that it should not be held to have anticipated these measures and it is 
then for [the respondent] to rebu t that presumption." Panel Report, Japan – Film , para. 10.79. 
1455 Panel Report, Japan – Film , para. 10.79. 
1456 Panel Report, Japan – Film , para. 10.79 (emphasis original); see also Panel Report, EC – Asbestos , 
para. 8.291(a). 
1457 United States' first written submission, para. 212. 
1458 United States' first written submission, para. 215. 
1459 As explained, the relevant requirements of the COOL statute came into effect no earlier than 2002 
and assumed their current form in 2008, notwithstanding the 1946 enactment of the original Agricultural Marketing Act. 
1460 See Exhibits CDA-101 and CDA-189. 
1461 United States' first written submission, para. 212. 
1462 Tariff Act of 1930, § 1304(a).  
1463 See United States' response to Panel question No. 82, para. 191. 
1464 United States' response to Panel question No. 82, para. 191. 
1465 2009 Final Rule, p. 2693. WT/DS384/RW • WT/DS386/RW 
 
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  slaughter of the animals from which the cu ts are derived. Thus, the Agency has not 
identified any Federal rules that would duplicate or overlap with this rule.1466 
7.700.  In keeping with these statements, the co mplainants highlight the original and amended 
COOL measures' departure from the principle of su bstantial transformation in previous labelling 
requirements.1467 The application of the Tariff Act of 1930 to imported meat excluded "meat 
derived from animals slaughtered in the United States".1468 These are the very products claimed by 
the United States to be a primary aspect of the amended COOL measure's coverage1469, as well as 
the focus of the complainants' allegations of nullification or impairment. In effect, earlier 
requirements cited by the United States would have extended no further than the equivalent of Label D under the original and amended COOL measures. As found with respect to both the original and amended COOL measures, this represen ts a small percentage of the meat sold in the 
United States.
1470 
7.701.  Hence, although there was a past governme nt policy of labelling imported meat with its 
country of origin, we do not consider this to demonstrate a reasonable anticipation of the key 
features and requirements of the amended COOL measure. In particular, the mandatory retail 
labelling of meat from US-slaughtered livestock, including the recent specifications under the amended COOL measure, appears to be a signific ant departure from pre-existing labelling rules 
and practices as they concern the products at issue.
1471 
7.702.  The United States also discusses the domestic history of US labelling laws and policy 
discussions on meat. It submits that "for at least the last 40 years, since the 1960s, the U.S. Congress has contemplated various pieces of legislation that would have imposed additional 
requirements for country of origin labelling for meat at the retail level."
1472 Our reading of these 
non-enacted proposals does not reveal any clear connection with the amended COOL measure, as these proposals would have applied only to imported meat rather than livestock and would not 
have required detailed information about where the animal was born and raised.
1473 
Even assuming that the complainants would have been aware of the measures introduced in the United States Congress, it is not clear that those proposed measures could have alerted them to 
the possibility of a measure such as the amended COOL measure.
1474 
7.703.  In any case, it is questionable whether legislative initiatives that are not enacted into 
mandatory legislation suffice to establish reasonable anticipation on the part of the complainants.
1475 Even charging Canada and Mexico with knowledge of the legislative initiatives, 
the indicative value of that knowledge could be inconclusive. The very fact that successive 
proposals were defeated in Congress might plausibly have led the complainants to expect that any similar (or more rigorous) future proposals would also be rejected. 
                                               
1466 2013 Final Rule, p. 31382. 
1467 See Canada's comments on th e United States' response to Panel question No. 78, para. 120 
(referring to "the rejection of the long-standing principle of substantial transformation in the COOL measure"); 
and Mexico's comments on the United States' response to Panel question No. 82, para. 174 (referring to the 
original and amended COOL measure as being "fundamen tally different from previous labeling measures 
applied to beef in the U.S. market"). 
1468 United States' response to Panel question No. 82, para. 191. 
1469 See, e.g. United States' second written submission, paras. 9-10 and 23; opening statement at the 
meeting of the Panel, paras. 8 and 13. 
1470 See para. 7.259 above and Panel Reports, US – COOL , paras. 7.369-7.371. 
1471 See Exhibit CDA-8, Appendix A. See also Panel Report, Japan – Film , para. 10.79. 
1472 United States' first written submission, para. 213. 
1473 See United States' response to Panel question No. 78. 
1474 The only proposal with some similarity to the amended COOL measure dates from 1999, which could 
not possibly have forewarned the complainants at the cl ose of the Uruguay Round year s earlier to anticipate a 
significant change in country of origin labelling requirements. See Country of Origin Meat Labeling Act of 1999, H.R. 1144, 106
th Cong. (1st Sess. 1999) (introduced by Rep. Helen Chenoweth-Hage). This proposed legislation 
would have amended the Federal Meat Inspection Act to require that all meat and me at food products, whether 
domestic or imported, bear a label notifying the ultimate purchaser of  meat and meat food products of the 
country of origin of the livestock that is the source of the meat and meat food products. Exhibit CDA-9 in the original dispute. 
1475 For instance, the panel in Japan – Film  considered that a complainant could be "charged with 
knowledge of … measures as of the date  of their publication." Panel Report, Japan – Film , para. 10.80. WT/DS384/RW • WT/DS386/RW 
 
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  7.8.5.2.3  International prevalence of similar measures 
7.704.  The United States additionally argues that "the proliferation of similar labeling regimes by 
other WTO Members, prior to the time the Uruguay Round was concluded, 'could not do other than create a climate which should have led [Canada and Mexico] to anticipate a change in the attitude 
of the importing countries' towards embracing more origin information being disclosed to 
consumers at the retail level."
1476 To support an inference of reasonable anticipation, the 
United States submitted a list of WTO Members with country of origin regimes.1477 
The United States acknowledges that of the numerous measures of other Members referenced, 
only a handful of measures (from Australia, Barbados, Canada, Chile, Chinese Taipei, Colombia, the European Union, Korea, Japan, and Mexico) concern meat in particular.
1478 
7.705.  The adoption by other Members of measures with some similarity to the challenged 
measure does not necessarily mean that the latter should reasonably have been anticipated.1479 
For instance, the panel in Japan – Film  did not "consider that as a general rule the United States 
should have reasonably anticipated Japanese measures that are similar to measures in other 
Members' markets. In each such instance, the issue of reasonable anticipation needs to be 
addressed on a case-by-case basis."1480 Similarly, the panel in EC – Asbestos  considered that "the 
accumulation of international and Community decisions concerning the use of asbestos … did not 
necessarily make it certain that the use of asbestos would be banned by France".1481 
7.706.  From the information provided by the Un ited States, it appears that only one other 
measure mandates the provision of information on the country where the animal from which the meat is harvested was born, raised, and slaughtered.
1482 This does not support a high degree of 
international prevalence or similarity of the measures from other jurisdictions to the amended 
COOL measure.1483 Moreover, there is wide variation in the proffered reasons for the adoption of 
                                               
1476 United States' first written submission, para. 215 (citing Panel Report, EC – Asbestos , para. 8.297). 
See also Exhibits US-5 and US-6. 
1477 Exhibit US-5. 
1478 United States' first written submission, para. 39. 
1479 As the panel held in Japan – Film , "[n]or do we consider that as a general rule th e United States 
should have reasonably anticipated Japanese measures  that are similar to meas ures in other Members' 
markets. In each such instance, the issue of reasonable anticipation needs to be addressed on a case-by-case basis." Panel Report, Japan – Film , para. 10.79. Likewise, in EC – Asbestos  the panel considered that 
"the accumulation of international and Community de cisions concerning the use of asbestos … did not 
necessarily make it certain that the use of asbestos would be banned by France".  Panel Report, EC – Asbestos , 
para. 8.297. 
1480 Panel Report, Japan – Film , para. 10.79. 
1481 Panel Report, EC – Asbestos , para. 8.297. 
1482 United States' first written submission, para. 39 an d footnote 87; Exhibits US-5 and US-6. We refer 
here to the EU measure (See Notification to the TBT Committee, G/TBT/N/EU/158, of 7 October 2013) and the United States' description of that measure in the United States' first written submission, para. 40. 
1483 From the information available to us from the TBT Committee notifications of the other Members 
specifically referred to by the United  States, it appears that none requires the provision of information to 
consumers on the country or countries where the animal was born, raised and slaugh tered. Instead, what is 
required is the identification of the co untry of origin of the product covered or, in the case of processed food, of 
individual ingredients in the product. It is not poss ible to deduce from the information provided by the 
United States how the county of origin is determined. Moreover, there is variation as to the scope of product 
coverage of those measures. See Exhibit US-10. Th e Australian measure (G/TBT/N/AUS/45 of 13 December 
2005; G/TBT/N/AUS/70 of 23 August 2011; G/TBT/N/AUS/70/ Add.1 of 8 January 2013) covers both packaged 
and unpackaged meat. The Barbadian measure (G/TBT/N /BRB/2 of 15 November 2005) covers pre-packaged 
meat. The Canadian measure (Exhibit US-9, in partic ular Sections 109 and 123) covers meat products. The 
Chilean measure (G/TBT/N/CHL/33 of 5 June 2002) applies to packaged food for human consumption. The first measure of Chinese Taipei (G/TBT/N/TPKM/41 of 13 Dece mber 2006) requires the labelling of all pre-packaged 
foods with the origin of the ingredient. The second measure of Chinese Taipei (G/TBT/N/TPKM/126 of 29 
August 2012) requires the labelling of me at with the country of origin of the product or, in the case of beef and 
edible cattle offals, with the country where the an imal was slaughtered. The first Colombian measure 
(G/TBT/N/COL/69 of 31 August 2005; G/TBT/N/COL/69Add.1 of 14 February 2006) applies to ingredients listed on containers and packages used for all food fo r human consumption. The second Colombian measure 
(G/TBT/N/COL/82 of 22 December 2006; G/TBT/N/COL/82/Add.1 of 7 June 2007) applies to meat, edible meat products and meat by-products for human consumption an d does not seem to impose  labelling requirements. 
The first Japanese measure (G/TBT/Notif.99/668 of 23 December 1999) applies inter alia  to all processed foods 
and certain fresh foods and appears to concern labelling standards in general. The second relevant Japanese 
measure (G/TBT/Notif.00/483 of 9 October 2000; G/TBT/N/JPN/7 of 24 January 2001; G/TBT/N/JPN/12 of 12 
 WT/DS384/RW • WT/DS386/RW 
 
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  those measures, including public health1484, the proper identification of meat cuts and their 
quality1485, the provision of information to consumers1486, consumer protection1487, and the 
avoidance of deceptive practices.1488 
7.707.  Under such circumstances, the existence of  labelling requirements in other countries does 
not evidence the kind of "trend" that could give rise to a "climate" in which the amended COOL 
measure could reasonably have been anticipated.1489 
7.8.5.2.4  Measures pursuing legitimate policy objectives 
7.708.  Finally1490, we address the relevance for non-violation claims of the covered agreements' 
recognition of specific objectives that may be pursued by Members. In this regard, the United States points to the prevention of deceptive practices as a "legitimate objective" under Article 2.2 of the TBT Agreement.
1491 
7.709.  We note that the panel in EC – Asbestos applied a "stricter burden of proof" for non-
violation claims against measures pursuing certain recognized interests.1492 In particular, the EC – 
Asbestos  panel considered for Article XX of the GA TT 1994 that "in accepting the WTO Agreement 
Members also accept, a priori , through the introduction of these general exceptions, that Members 
will be able, at some point, to have recourse to these exceptions".1493 The panel thus reasoned 
that recourse to Article XXIII:1(b) of the GATT 19 94 should be treated as particularly exceptional 
in relation to measures justified by Article XX of the GATT 1994.1494 
7.710.  The exceptional treatment suggested above would impute greater awareness to 
complainants of the possibility that other Member s might regulate under the general exceptions of 
the GATT 1994 in ways nullifying or impairing WTO concessions. At the same time, a measure's 
justification based on its pursuit of a legitimate objective should not be grounds, in and of itself, 
for finding that that measure could reasonably have been anticipated.1495 Otherwise, the non-
                                                                                                                                               
April 2001; G/TBT/N/JPN/42 of 25 March 2002; G/TBT/N/JPN/124 of 18 June 2004) applies to fresh and 
processed food. It was amended in 2004 to remove a country of origin labelling rule for livestock meat derived from animals imported live and slaughtered in Japan. Th e first Korean measure appl ies to all meat products 
being commercially sold (G/TBT/N/KOR/156 of 18 September 2007; G/TBT/N/KOR/202 of 20 January 2009); the second one (G/TBT/N/KOR/173 of 7 May 2008) covers  food, food additives, apparatus, packaging and 
containers for food; and the third one (G /TBT/N/KOR/181 of 7 August 2008) applies inter alia to beef and pork. 
The Mexican measure (Mexican Official Standard  NOM-194-SSA1-2004 on Sanita ry Specifications for 
Establishments Dedicated to Slaughtering and Prepar ing Animals for Slaughter,  Storage, Transport and 
Vending, available at http://www.salud.gob.mx/unidades/cdi/nom/194ssa104.html , last accessed 3 June 2014) 
applies to meat, ground meat, viscera and other edible parts. See also Unit ed States' first wr itten submission, 
paras. 40-44. 
1484 See the Australian, Barbadian, Chinese Taipei, Colombian and Korean measures cited above in 
footnote 1483 and in Exhibit US-5. 
1485 See the Barbadian measure cited above in footnote 1483 and in Exhibit US-5. 
1486 See the Australian, Barbadian, Chinese Taipei, Chilean, European Union and Korean measures cited 
above in footnotes 1482 and 1483 and in Exhibit US-5. 
1487 See the Chinese Taipei and Japanese measures cited above in footnote 1483 and in Exhibit US-5.  
1488 See the Australian, Colombian and Korean measures cited above in footnote 1483 and in 
Exhibit US-5. 
1489 See Panel Report, EC – Asbestos , para. 8.297. 
1490 Another possible factor to cons ider is the temporal gap between the coming into being of the 
challenged measure and the granting of concessions of ma rket access. The United States submits that "in light 
of the many years that have elapsed since the Urugua y Round, Canada and Mexico 'could not assume that, 
over such a long period, there would not be' changes to the U.S. labeling regime with the risk that meat 
products derived from imported livest ock would have to be labeled." Unit ed States' first written submission, 
paras. 215 (citing Panel Report, EC – Asbestos, para. 8.292). The panel in EC – Asbestos  emphasised the long 
time that had lapsed between the concessions and the measure (between 35 and 50 years). However, the force of that argument is significantly reduced in the context of this dispute where the relevant legislative acts were adopted in 2002 and 2008, much closer in time to the granting of Uruguay Round concessions.  
1491 United States' answer to Panel question no. 78, para. 180. 
1492 See Panel Report, EC – Asbestos , para. 8.282. 
1493 Panel Report, EC – Asbestos , para. 8.272. 
1494 Panel Report, EC – Asbestos , para. 8.281. 
1495 Panel Report, Japan – Film , para. 10.79. WT/DS384/RW • WT/DS386/RW 
 
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  violation remedy for measures that do not conflict with – including those justified under – the 
covered agreements would be rendered ineffective.1496 
7.711.  In the present compliance dispute, the above considerations do not alter our analysis of 
the amended COOL measure's reasonable anticipation.1497 The amended COOL measure's 
legitimate objective1498 and the prevention of deceptive practices as recognized in the 
TBT Agreement could only evidence a general government policy of labelling foreign products with some indication of their country of origin. As described above, however, "it is not sufficient to 
claim that a specific  measure should have been anticipated because it is consistent with or a 
continuation of a past general  government policy."
1499 To the extent that the amended COOL 
measure marks a notable departure from such past policy, it would not be reasonably anticipated simply by virtue of pursuing a recognized or legitimate objective. 
7.8.5.2.5  Conclusion on reasonable anticipation 
7.712.  In sum, the chronology of the amende d COOL measure's introduction shows that it 
postdates the granting of relevant tariff concessions. As for the other factors we have examined, 
we do not find compelling evidence that the amended COOL measure could have been reasonably 
anticipated before its adoption. Overall, and having assessed the relevant facts and circumstances
1500, we conditionally conclude that the amended COOL measure introduced a 
significant degree of regulatory novelty to the labe lling of the products relevant in this dispute. 
7.8.6  Nullification or impairment and causation 7.713.  The third limb of the Article XXIII:1(b) test concerns the existence and causation of 
nullification or impairment.
1501 The complainants argue that the amended COOL measure has 
upset the competitive relationship between US and Canadian and Mexican cattle and hogs 
established by the United States' tariff bindings.1502 In particular, Canada contends that both the 
original and the amended COOL measures discour age US slaughterhouses from buying Canadian 
cattle and hogs, and retailers from selling Canadian beef and pork.1503 According to Canada, this 
worsens the competitive position of Cana dian cattle and hogs in the US market.1504 Mexico argues 
that segregation according to origin conti nues under the amended COOL measure, and US 
producers continue to apply a price discount on Mexican-born cattle.1505 Mexico notes that the 
number of processors accepting Mexican cattle "remains restricted"1506, and US processors 
continue to require advance delivery notice for Mexican cattle.1507 The United States does not 
contest that the amended COOL measure is one of the factors that affect trade of livestock 
between its market and those of Canada and Mexico.1508 
7.714.  With regard to the causal link between th e amended COOL measure and the nullification or 
impairment of relevant benefits, the complainants must establish "a clear correlation between the 
                                               
1496 See also Appellate Body Report, EC – Asbestos , para. 187. 
1497 As a threshold matter, the panel's justifications in EC – Asbestos  for according stricter treatment to 
non-violation claims are not clearly applicable to the present dispute. The panel in EC – Asbestos addressed 
"the special situation of measures justified under Articl e XX, insofar as they concer n non-commercial interests 
whose importance has been recognized a priori  by Members". Panel Report, EC – Asbestos , para. 8.281. The 
Appellate Body expressed doubts as to  the distinction of "non-commercial" interests, stating that "in practice, 
clear distinctions between health and commercial measures  may be very difficult to establish". Appellate Body 
Report, EC – Asbestos , para. 189. As pointed out by Canada, the panel in EC – Asbestos  was explicitly 
concerned with Article XX of the GATT 1994, which has not been relied upon by the United States. See Canada's comments on the United States' response to Panel question No. 78, para. 121. 
1498 See sections 7.6.2.1 and 7.6.2.2 above. 
1499 Panel Report, Japan – Film , para. 10.79 (emphasis original). 
1500 Panel Report, Japan – Film , para. 10.37. 
1501 Panel Report, Japan – Film, para. 10.82. 
1502 See Canada's second written submission, para. 156; Mexico's first written submission, para. 243. 
1503 Canada's first written submission, footnote 375. 
1504 Canada's first written submission, footnote 375. 
1505 Mexico's first written submission, para. 97. 
1506 Mexico's first written submission, para. 97. 
1507 Mexico's first written submission, para. 97. 
1508 United States' response to Panel question No. 76, para. 166. WT/DS384/RW • WT/DS386/RW 
 
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  measures and the adverse effect on the relevant competitive relationships".1509 The criterion of 
causality consists in showing that the amended COOL measure "has made more than a de minimis  
contribution to nullification or impairment".1510 
7.715.  In light of the above and the parties' ar guments on the third limb of the complainants' 
non-violation claim, we conditionally conclude that the amended COOL measure meets the 
requirement of causing an adverse effect on the relevant competitive relationships. 
7.8.7  Conclusion on Article XXIII:1(b) of the GATT 1994 
7.716.  We have explained that compliance by the United States with our finding of violation under 
Article III:4 of the GATT 1994 would necessarily remove the basis of the complainants' non-violation claims. Consequently, we decided to exercise judicial economy with respect to the complainants' non-violation claims under Article XXIII:1(b) of the GATT 1994. To the extent that 
the findings underpinning our exercise of judici al economy are overturned on appeal, we have 
reviewed relevant factual and interpretive issues, and have reached conditional factual conclusions on this basis. 
                                               
1509 Panel Report, Japan – Film , para. 10.82. 
1510 Panel Report, Japan – Film , para. 10.84. WT/DS384/RW • WT/DS386/RW 
 
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  8  CONCLUSIONS AND RECOMMENDATIONS 
8.1.  We recall that at the substantive meetin g of 18 and 19 February 2014, the parties did not 
object to including the Panel Reports in a single document, with the understanding that, following the same approach as in the original dispute, the final sections on Conclusions and 
Recommendations would be printed on separate pages with the relevant DS symbol. 
Accordingly, we provide two separate sets of findings and recommendations, with separate numbers/symbols for each complainant (WT/DS 384 for Canada and WT/DS386 for Mexico). 
8.2.  In making these findings, we recall our above observations in respect of potential WTO-
consistent solutions for achieving the amended COOL measure's legitimate objective.
1511 
                                               
1511 See paras. 7.614-7.616 above. WT/DS384/RW 
 
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  8.1  Complaint by Canada (DS384):  Conclusions and recommendations 
8.3.  With respect to Canada's claims under the TBT Agreement, we conclude 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 imported Canadian 
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 imported Canadian livestock, and 
this detrimental impact does not stem exclusively from legitimate regulatory distinctions; and 
c. 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. 
8.4.  With respect to Canada's claims under the GATT 1994, we conclude that the amended COOL 
measure violates Article III:4, as it has a detrimental impact on the competitive opportunities of 
imported Canadian livestock, and thus accords less favourable treatment within the meaning of 
Article III:4 of the GATT 1994. In light of the abov e findings of violation, in particular under 
Article III:4 of the GATT 1994, we have exercised judicial economy with regard to Canada's non-
violation claim under Article XXIII:1(b) of the GATT 1994; at the same time, we have set out 
conditional, factual conclusions and legal interpretations in the event that our supporting findings or determinations are overturned on appeal. 
8.5.  Under Article 3.8 of the DSU, in cases wh ere there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie to constitute a case of 
nullification or impairment of benefits under that agreement. Accordingly, we conclude that, to the extent that the United States has acted inconsis tently with Article 2.1 of the TBT Agreement and 
Article III:4 of the GATT 1994, it has nullified or im paired benefits accruing to Canada under these 
agreements. 
8.6.  Pursuant to Article 19.1 of the DSU, having found that the United States has acted 
inconsistently with Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994, 
we recommend that the Dispute Settlement Body request the United States to bring the inconsistent measure into conformity with its obligations under the TBT Agreement and the GATT 1994.WT/DS386/RW 
 
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  8.2  Complaint by Mexico (DS386): Conclusions and recommendations 
8.3.  With respect to Mexico's claims under the TBT Agreement, we conclude 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 imported 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 imported Mexican livestock, and 
this detrimental impact does not stem exclusively from legitimate regulatory distinctions; and 
c. Mexico 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. 
8.4.  With respect to Mexico's claims under the GATT 1994, we conclude that the amended COOL 
measure violates Article III:4, as it has a detrimental impact on the competitive opportunities of 
imported Mexican livestock, and thus accords less favourable treatment within the meaning of 
Article III:4 of the GATT 1994. In light of the abov e findings of violation, in particular under 
Article III:4 of the GATT 1994, we have exercised ju dicial economy with regard to Mexico's non-
violation claim under Article XXIII:1(b) of the GATT 1994; at the same time, we have set out 
conditional, factual conclusions and legal interpretations in the event that our supporting findings or determinations are overturned on appeal. 
8.5.  Under Article 3.8 of the DSU, in cases wh ere there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie to constitute a case of 
nullification or impairment of benefits under that agreement. Accordingly, we conclude that, to the extent that the United States has acted inconsis tently with Article 2.1 of the TBT Agreement and 
Article III:4 of the GATT 1994, it has nullified or im paired benefits accruing to Mexico under these 
agreements. 
8.6.  Pursuant to Article 19.1 of the DSU, having found that the United States has acted 
inconsistently with Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994, 
we recommend that the Dispute Settlement Body request the United States to bring the inconsistent measure into conformity with its obligations under the TBT Agreement and the GATT 1994. 
 
__________