Aside from your clever reversal of the expressio unius argument, which we could argue ad nauseum, I don t see anything. The AB criticized the panel not for stopping at physical characteristics, but for stopping at a stunningly limited application of the Border Tax Adjustment factors. The main thrust of your message of today s date seems to be that you can use the admissibility of consumer preferences, or competitive relationship, in the likeness analysis as a door by which to let in all non-physical characteristics, including PPMs. I suppose that this is theoretically true. However, the bottom line is that nothing in this opinion suggests that PPMs would or should be considered for their own sake, and of course, they are never mentioned.
Competitiveness is at the analytical core of likeness analysis.
But this circumstance would only occasionally exist in a way that is congruent with a regulatory distinction based on PPMs, and therefore propinquitously protect the regulatory distinction from review. Furthermore, as Bob Hudec points out, you would still be left with the sticky question of art. We use competitive relationship because under WTO law and policy, we do not care about discrimination among products that are not in a competitive relationship. Thus, it is appropriate to exclude non-consumer preferences from consideration in the determination of like products. So, the argument that we allow regulation of externalities not felt by the actual consumer does not, to me, argue against the product-process distinction.