BEIJING

BRUSSELSCHICAGODALLASFRANKFURTGENEVA

HONG KONGLONDONLOS ANGELESNEW YORKPALO ALTOSAN FRANCISCO

SHANGHAISINGAPORESYDNEYTOKYOWASHINGTON, D.C.

WTO Case Law on Product Standards andLabeling: New Cases, New Challenges
RIETI BBL Seminar
November 17th, 2011

Andrew Shoyer
Washington, D.C.
ashoyer@sidley.com

Overview• Eco-labeling is an old subject for international
trade policy– Debates in WTO CTE since 1990s– Doha Declaration, para. 32(iii)(2001)• But new WTO DS decisions (since September2011) create case law on two key provisions of TBTAgreement– When are product standards/labels discriminatory?
– When are they “more trade-restrictive thannecessary”?

• Will require Appellate Body to resolve gaps in 20122

Examples of Japan’s Eco-Labels

Source: "Eco Mark Office,” Japan Environment
Association (JEA),
http://www.ecomark.jp/english/index.html

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Source: Eco-Leaf Environmental Labeling Program(JEMAI),
http://www.jemai.or.jp/english/ecoleaf/index.cfm

Examples of U.S. “Dolphin-Safe” Labels

Source: National Oceanic andAtmospheric Administration, U.S.
Department of Commerce,
http://www.dolphinsafe.gov

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Source: Earth Island Institute, http://www.earthisland.org/dolphinSafeTuna/TBT Agreement – Three Terms• Technical Regulation– Compliance is mandatory• Standard– Compliance is not mandatory• Conformity Assessment Procedure– Used to determine compliance with a technicalregulation or standard

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What’s a technical regulation?
Document which lays down product characteristics or theirrelated processes and production methods, including theapplicable administrative provisions, with which complianceis mandatory. It may also include or deal exclusively withterminology, symbols, packaging, marking or labelingrequirements as they apply to a product, process or
production method. (TBT Agreement - Annex 1.1)
COMPARE -Regulation [document providing binding legislative rules, that is adopted by anauthority] that provides technical requirements [provision that conveys criteria
to be fulfiled], either directly or by referring to or incorporating the content ofa standard, technical specification, or code of practice. (ISO/IEC Guide
2:1991)

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Main obligations regarding technicalregulations• Most-Favored-Nation and National Treatment :Members shall ensure that in respect of technical regulations,products imported from the territory of any Member shall beaccorded treatment no less favourable than that accorded to like
products of national origin and to like products originating in any
other country. (TBT Agreement – Article 2.1)

• Avoiding Unnecessary Obstacles to Trade:
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. . . Technicalregulations shall not be more trade-restrictive than necessary to
fulfil a legitimate objective . . . . (TBT Agreement – Article 2.2)
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Recent Panel Reports in TBT Disputes• US – Measures Concerning the Importation,

Marketing and Sale of Tuna and Tuna Products(DS381) (“Tuna II”) (September 2011)• US – Measures Affecting the Production andSale of Clove Cigarettes (DS406) (“Clove
Cigarettes”) (September 2011)• (PENDING) US – Certain Country of Origin
Labelling (COOL) Requirements (DS384/386)(“COOL”) (End 2011?)
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Main Issues in New TBT Cases• Is the measure at issue a technical regulation?
(Annex 1.1)
• Are products involved “like” products? (Article 2.1)
• Were such products accorded “no less favorable”
treatment ? (Article 2.1)
• Is the objective legitimate? (Article 2.2 )• Is the measure more trade-restrictive thannecessary in order to pursue such objective?
(Article 2.2 )9Tuna II:

What were the measures at issue?
US “dolphin-safe” labeling requirements contained in:i.

the United States Code, Title 16, Section 1385(“Dolphin Protection Consumer Information Act”);

ii. the Code of Federal Regulations, Title 50,
Section 216.91 (“Dolphin-safe labeling standards”) andSection 216.92 (“Dolphin-safe requirements for tuna
harvested in the ETP [Eastern Tropical Pacific Ocean]by large purse seine vessels”); andiii. the ruling in Earth Island Institute v. Hogarth, 494 F.3d
757 (9th Cir. 2007).
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Tuna II:

Were the measures “technical regulations”?
“[W]e consider that compliance withproduct characteristics or their related
production methods or processes is"mandatory" within the meaning ofAnnex 1.1, if the document in which
they are contained has the effect ofregulating in a legally binding orcompulsory fashion thecharacteristics at issue, and if it thusprescribes or imposes in a binding orcompulsory fashion that certain
products must or must not possesscertain characteristics, terminology,
symbols, packaging, marking or labelsor that it must or must not be
produced by using certain processes
and production methods.” (para. 7.111)
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Tuna II:

Were the products involved “like” products?
The panel used traditional GATT criteria to determine“likeness”, namely:i.

the physical properties of the products;

ii. the extent to which the products are capable ofserving the same or similar end-uses;iii. the extent to which consumers perceive and treat
the products as alternative means of performing
particular functions in order to satisfy a particular wantor demand; andiv. the international classification of the products fortariff purposes. (paras 7.234-240)
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Tuna II:

Were the products involved “like” products?
The Panel found that the information presented “does suggestthat US consumers have certain preferences with respect totuna products, based on their dolphin-safe status,” and it did not
exclude that such preferences “may be relevant to anassessment of likeness.” However, the Panel noted that thebasis for its analysis is a comparison between “Mexican tunaproducts and tuna products of US origin and tuna products
originating in any other country, not between dolphin-safe andnot dolphin-safe tuna.” (paras 7.249-250).
“Mexican tuna products and tuna products of US and otherorigins are like products within the meaning of Article 2.1”
(para. 7.252)
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Tuna II:

Were such products accorded “no less favorable”
treatment?
The panel said that "equality" of treatment does not necessarily imply
identity of treatment for all products, but rather an absence of inequality to
the detriment of imports from any Member.” (para. 7.275)“The dolphin-safe label has a significant commercial value on the US market
for tuna products, as the only means through which dolphin-safe status
can be claimed. We therefore agree with Mexico that access to the label
provides an advantage on the US market.” (paras. 7.289 & 7.291)“We are not persuaded that any current discrepancy in their relative
situations is a result of the measures rather than the result of theirown choices.” (para. 7.334)“We are not persuaded that this implies that Mexican tuna products are being
denied access to the advantage provided by the US dolphin safe labellingprovisions or demonstrates the existence of "less favourable treatment"
being afforded to Mexican tuna products by the US measures.” (para. 7.345)

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Tuna II:

Was the objective legitimate?
“We also find that the US objectives relate to genuine concerns
in relation to the protection of the life or health of dolphins anddeception of consumers in this respect. The evidence presented
by the parties amply demonstrates that dolphins and other marine
mammals may be adversely affected by tuna fishing activities.”(para. 7.438)“The Panel does not consider that the objective of contributing to theprotection dolphins of the US dolphin-safe provisions should beconsidered illegitimate because it does not cover the protection ofother marine species.” (para. 7.442)“In the Panel's view, the objectives of protecting consumers fromdeceptive practices and contributing to protecting dolphins bydiscouraging certain fishing practices do not go against the object
and purpose of the TBT Agreement, even in light of the existence ofpotentially conflicting objectives that could also be recognized as
legitimate.” (para. 7.443)
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Tuna II:

Were the measuresmore trade-restrictive than necessary?
The Panel explained that “under Article 2.2 of the
TBT Agreement, the analysis involves an assessment of
the degree of trade-restrictiveness of the measure at issue
in relation to what is "necessary" for the fulfilment of thelegitimate objective being pursued, and this can bemeasured against possible alternative measures that would
achieve the same result with a lesser degree of traderestrictiveness.” (para. 7.458)

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Tuna II:

Were the measuresmore trade restrictive than necessary?
The Panel considered two points:i.

“the manner and extent to which” the measures fulfill theobjective; andii.

whether this objective could be similarly fulfilled by a lesstrade-restrictive measure. (para. 7.465)

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Tuna II:

Were the measuresmore trade restrictive than necessary?
On the first question Mexico had a good argument – that US consumers are misledbecause “no certification that no dolphin was killed or seriously
injured . . . is required . . . by methods other than setting on
dolphins, even though such methods may in fact have resulted insignificant harm to dolphins.” (para. 7.478)
The Panel found that “[t]o the extent that the US dolphin-safe
provisions deny access to the [US] label to products containing
tuna caught by setting on dolphins, they enable the US consumer
to avoid buying tuna caught in a manner involving . . . observed
and unobserved adverse impacts on dolphin.” (para. 7.505)
BUT “consumers would not have equal certainty that no dolphin
was . . . adversely affected in respect of tuna caught outside theETP.” (para. 7.545)

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Tuna II:

Were the measuresmore trade-restrictive than necessary?
And on the second question –ALTERNATIVE “permit the use in the US market of the AIDCP‘dolphin-safe label.’” (para.7.566)“[W]e find that, in relation to the objective of consumer
information, Mexico has identified a less trade-restrictive
alternative that would achieve a level of protection equivalent
to that achieved by the US measures, taking account of the risks
non-fulfilment would create.
“Thus, the Panel concludes that Mexico has demonstrated that the
US dolphin-safe provisions are more trade restrictive thannecessary to fulfil their objective of ensuring that consumers are
not misled about whether tuna products contain tuna that wascaught in a manner that adversely affects dolphins, and theUnited States has not successfully rebutted this claim.” (para. 7.578)

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Clove Cigarettes:

What was the measure at issue?

A provision of the Family Smoking Prevention Tobacco
Control Act of 2009 that bans clove cigarettes. Section
907, which was signed into law on 22 June 2009,
prohibits, among other things, the production or sale in
the United States of cigarettes containing certain
additives, including cloves, but permits the production
and sale of other cigarettes, including cigarettes
containing menthol.

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Clove Cigarettes:

Was the measure “technical regulation”?
The Panel established threeelements:i.

Whether the measure applies
to an identifiable product orgroup of productsii.

Whether the measure lays
down one or more "productcharacteristics“iii.

Whether compliance with the
product characteristics is
mandatory21

Clove Cigarettes:

Were the products involved “like” products?
The Panel in Clove Cigarettes used the same four criteria:i.

the physical properties of the products;

ii. the extent to which the products are capable ofserving the same or similar end-uses;iii. the extent to which consumers perceive and treat
the products as alternative means of performing
particular functions in order to satisfy a particular wantor demand; andiv. the international classification of the products fortariff purposes.
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Clove Cigarettes:

Were the products involved “like” products?
IMPORTANT – in contrast to the typical approach under
GATT 1994 Article III, the Panel used the legitimate objectiveof reducing youth smoking to limit the scope of theconsumers whose tastes and habits should be examined
under criterion (iii).
Further, the Panel stated that “the weighing of the evidence
relating to the likeness criteria should be influenced by thefact that [the measure] is a technical regulation having theimmediate purpose of regulating … for public health reasons.”
The declared legitimate objective “must permeate and inform
our likeness analysis.” (paras 7.118-121).
“[W]e find that clove cigarettes and menthol cigarettes
are like products for the purpose of Article 2.1 of the
TBT Agreement.” (para. 7.248)
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Clove Cigarettes:

Were such products accorded “no less favorable”
treatment?
The panel distinguished between de jure and de facto less favorable
treatment.

De facto less favorable treatment depends on the following factors:i.

impact of the measure on the competitive relationship of groups ofimports versus groups of domestic like products;ii.

whether the measures modify these conditions of competition to thedetriment of the group of imported like products; andiii.

whether the detrimental effect(s) can be explained by factors or
circumstances unrelated to the foreign origin of the product; butiv.

no separate demonstration that the measures are applied “so as to afford
protection” (from GATT 1994 Article III:1) is required.” (paras 7.262269)

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Clove Cigarettes:

Were such products accorded “no less favorable”
treatment?
“We therefore conclude that, by banning clove
cigarettes while exempting menthol cigarettes fromthe ban, Section 907(a)(1)(A) does accord imported clove
cigarettes less favourable treatment than that it
accords to domestic menthol cigarettes, for the purpose of
Article 2.1 of the TBT Agreement.” (para. 7.292)

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Clove Cigarettes:

Was the objective legitimate?
“It is self-evident that measures to reduce youth smoking are
aimed at the protection of human health, and Article 2.2 of the
TBT Agreement explicitly mentions the ‘protection of humanhealth’ as one of the ‘legitimate objectives’ covered by thatprovision.” (para. 7.347)
In our view, there is "a genuine relationship of ends and means"
between the objective pursued and the measure at issue”.
(para. 7.417)“[W]e conclude that Indonesia has failed to demonstrate thatthe objective of the ban is not ‘legitimate.’” (para. 7.350)

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Clove Cigarettes:

Were the measuresmore trade restrictive than necessary?
Indonesia listed 25 alternative measures for the Panel toconsider!! BUT the Panel found that “[a] mere listing . . . isinsufficient to establish a prima facie case.” (para. 7.423)“In addition, each . . . alternative measure[] . . . appears to
involve a greater risk of non-fulfillment . . . “ (para. 7.424)“[P]rohibiting the sale of flavoured cigarettes . . . recommended
in the WHO Partial Guidelines.” (para. 7.428)“Accordingly, we find that Indonesia has failed todemonstrate that Section 907(a)(1)(A) is inconsistent with
Article 2.2 of the TBT Agreement.” (para. 7.432)

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COOL:

What are the measures at issue?
(i) the Agricultural Marketing Act of 1946, as amended by the Farm, Security
and Rural Investment Act of 2002 and the Food, Conservation, andEnergy Act of 2008;(ii) the Interim Final Rule on Mandatory Country of Origin Labeling of Beef,
Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities,
Peanuts, Pecans, Ginseng, and Macadamia Nuts, and published on 1
August 2008 as 7 CFR Part 65 and on Mandatory Country of Origin
Labeling of Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat andPork, Ground Beef, Ground Lamb, Ground Chicken, Ground Goat, andGround Pork, published on 28 August 2008 as 9 CFR Parts 317 and 381;
(iii) the Final Rule on Mandatory Country of Origin Labeling of Beef, Pork,
Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts,
Pecans, Ginseng, and Macadamia Nuts, published on 15 January 2009 as
7 CFR Part 65;(iv) the letter to "Industry Representative" from the United States
Secretary of Agriculture, Thomas J. Vilsack, of 20 February 2009; and(v) any modifications, administrative guidance, directives or policy
announcements issued in relation to items (i) through (iv) above.
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COOL:

What are the measures at issue?
The measures listed include the obligation to informconsumers at the retail level of the country of origin
in respect of covered commodities, including beef andpork.
The eligibility for a designation of a covered
commodity as exclusively having a US origin can only
be derived from an animal that was exclusively born,raised and slaughtered in the United States.
This would exclude such a designation in respect ofbeef or pork derived from livestock that is exported to
the United States for feed or immediate slaughter.

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COOL:
What are the legal issues?
Canada alleges that the mandatory COOL provisions appear to beinconsistent with the United States' obligations under the WTO
Agreement, including:• Articles III:4, IX:4 and X:3 of the GATT 1994;• Article 2 of the TBT Agreement, or, in the alternative, Articles 2, 5
and 7 of the SPS Agreement; and• Article 2 of the Agreement on Rules of Origin.

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Conclusion• What remains for the Appellate Body?
– Annex 1.1 – What is “mandatory” in definition of“technical regulation”?
– Article 2.1 – Should “like product” analysis in TBTAgreement deviate from analysis under GATT Article
III:4?
– GATT Article XX – Does it apply to TBT Agreement?

• What lessons for regulators?
– Article 2.2 has real teeth, and regulators ignore trade
impacts at their peril– Relying on international regime helps (AIDCP, WHO
Framework)31World Offices
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