Document: WT/DS384/R WT/DS386/R Page C-1 ANNEX C THIRD PARTY SUBMISSIONS Contents Page Annex C-1 Executive summary of the third party written submission of Australia C-2 Annex C-2 Third party oral statement of Australia at the first substantive meeting C-7 Annex C-3 Third party oral statement of Australia at the second substantive meeting C-11 Annex C-4 Third party written submission of Brazil C-15
Document codes: WT/DS384/R; WT/DS386/R
Complainant: Mexico
Respondent: U.S.
Third parties: Argentina, Australia, Brazil, Canada, China, Colombia, EU, Guatemala, India, Japan, South Korea, New Zealand, Peru, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. III, X:3(a), IX  GATT 1994Art. 2, 12  Technical Barriers to Trade (TBT)Art. 2, 5, 7  Sanitary and Phytosanitary Measures (SPS)Art. 2  Rules of Origin

ANNEX C

THIRD PARTY SUBMISSIONS

Contents Page
Annex C-1 Executive summary of the third party written submission of Australia C-2
Annex C-2 Third party oral statement of Australia at the first substantive meeting C-7
Annex C-3 Third party oral statement of Australia at the second substantive meeting C-11
Annex C-4 Third party written submission of Brazil C-15
Annex C-5 Third party oral statement of Brazil at the first substantive meeting C-19
Annex C-6 Third party oral statement of Brazil at the second substantive meeting C-21
Annex C-7 Third party oral statement of China at the second substantive meeting C-23
Annex C-8 Executive summary of the third party written submission of Colombia C-24
Annex C-9 Third party oral statement of Colombia at the first substantive meeting C-29
Annex C-10 Third party oral statement of Colombia at the second substantive meeting C-32
Annex C-11 Executive summary of the third party written submission of the European Union C-33
Annex C-12 Executive summary of the third part y oral statement of the European Union at
the first substantive meeting
C-38
Annex C-13 Executive summary of the third part y oral statement of the European Union at
the second substantive meeting
C-43
Annex C-14 Third party oral statement of Guat emala at the first substantive meeting C-48
Annex C-15 Executive summary of the third party written submission of Japan C-50
Annex C-16 Executive summary of the third pa rty oral statement of Japan at the first
substantive meeting
C-54
Annex C-17 Third party oral statement of Japan at the second substantive meeting C-57
Annex C-18 Executive summary of the thir d party written submission of Korea C-61
Annex C-19 Third party oral statement of Korea at the first substantive meeting C-63
Annex C-20 Executive summary of the third party written submission of New Zealand C-65
Annex C-21 Third party oral statement of New Zealand at the first substantive meeting C-69
Annex C-22 Third party oral statement of New Zealand at the second substantive meeting C-72
Annex C-23 Third party oral statement of Peru at the first substantive meeting C-74

ANNEX C-1

EXECUTIVE SUMMARY OF THE
THIRD PARTY WRITTEN SUBMISSION OF AUSTRALIA

I. INTRODUCTION
1. The US country of origin labelling requirement s (the "COOL measure") at issue in these
proceedings raise significant systemic issues con cerning the legal obligations and rights of WTO
Members under the Agreement on Technical Barriers to Trade (TBT Agreement) and the General
Agreement on Tariffs and Trade 1994 (GATT 1994).
II. THE MEASURE AT ISSUE
2. Canada and Mexico have broa dly identified the measure at issue to encompass the 2008
Interim Final Rule and the Vilsack Letter
1 in addition to the 2009 Final Rule and the 2002 COOL
Statute, as amended. Mexico has also included th e Food Safety and Inspection Service Interim Rule.
The COOL measure thus identified covers many commodities and affects every stage of the supply
chain. Relevantly (given Australia's large expor ts of muscle cuts and manufactured ground beef),
Australia notes ground beef (along with other ground meats) is subject to very particular COOL
requirements under §65.300(h) of the 2009 Final Rule.
3. Australia disagrees with the US contention that Canada and Mexico ha ve failed properly to
identify the measure at issue because they have not addressed the WTO consistency of all elements of
the COOL measure. In this regard, Au stralia notes the Panel's statement in EC-Sardines that a
complaining party may elect to "identify and ch allenge only those offending provisions of the
measure it deems central to its interest in resolving the dispute".2
4. Like Canada and Mexico, Australia also regards the Vilsack Letter as a measure which can be
challenged in WTO dispute settlement proceedings. It is an act direc tly attributable to the executive
of a WTO Member. The Vilsack Letter is an offici al document that sets out the official position of
the US Department of Agriculture as mandated by the Secretary of the Department and is
characterised by the Secretary as representing the will of the US Congress.
III. THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE
A. D
EFINITION OF TECHNICAL REGULATION
5. Australia considers the COOL measure meets th e three criteria identified by the Appellate
Body in EC – Asbestos required to fall within the definition of a "technical regulation" under Annex 1
of the TBT Agreement, 3 as it relates to named "covered commodities", provides for labelling
requirements (as referred to in the definition of a technical regulation in Annex 1), and is of binding or
compulsory nature.

1 US Secretary of Agriculture Thomas J. Vils ack's letter to Industry Representatives dated
20 February 2009.
3 Appellate Body Report, EC – Asbestos , paras. 66-70, cited also in Appellate Body Report, EC –
Sardines, para. 176. See Canada's first written submission, paras. 71-74 and Mexico's first written submission,
paras. 238-260.

6. Australia notes Mexico directly addresses the manda tory nature of the Vilsack Letter. The
United States challenges Mexico's characterisation of the letter as mandatory. In Australia's view,
Mexico is correct in asserting that how the US De partment of Agriculture characterises the Vilsack
Letter should not be determinative of its character. Instead, a critical question for the Panel is whether
industry views this letter as mandating action.
B. ARTICLE 2.1 OF THE TBT AGREEMENT
7. There is limited direct guidance from WTO Panel and Appellate Body Reports on the
application of Article 2.1 of the TBT Agreement. However, Australia be lieves the Panel can be
informed by the interpretation of the phrases " like product" and "treatment no less favourable" in
GATT Article III:4.
8. Australia notes the US argument that Canada and Mexico's "like product" analysis is deficient
because the subject of the COOL measure is meat a nd not livestock. Australia disagrees with this
interpretation and believes Article 2.1 should be applied to count ry of origin labelling requirements,
so as to encompass "like products" that, at whatever point of the supply process, are required to be
identified for the purposes of labelling the end product. In other words, the application of the COOL
measure to all early stage products, whether livestock, muscle cuts or beef trimmings used in ground
beef, should be subject to Article 2.1.
9. In Australia's view, both Canada and Mexico ha ve clearly established that live cattle, and in
the case of Canada, live hogs, are "like products" to US live cattle and hogs.
10. Australia also submits that imported beef trimmings used for processing or grinding into
ground beef in the United States are like products to domestic (US) beef trimmings. Imported beef
trimmings have the same properties, nature and qua lity as the US product, and the same end uses as
US beef trimmings, as both are processed into ground beef. Finally, Australia also notes that
imported beef trimmings and US beef trimmings th at are processed into ground beef are classified
under the same subheading 0201 and 0202 under the Harmonised System of Tariff Classification.
11. The objective of the "treatment no less favourab le" requirement is to provide "equality of
opportunities" for imported goods. 4 As part of this analysis, it is necessary to examine whether the
COOL measure "modifies the conditions of competiti on in the relevant market to the detriment of
imported products".5
12. On its face, the COOL measure provides for form ally identical treatment of imported product
as the same requirements to identify the origin of the product apply equally to domestic product.
However, the COOL measure has th e potential to accord different treatment to imported product that
amounts to less favourable treatment within the meaning of Article 2.1 of the TBT Agreement
because it results in additional operational costs on imported product.
13. Australia does not object to identifying imported product on labels and does not agree with
Mexico's claim that country of origin labellin g measures "are inherently protectionist and
discriminatory".
6 As the United States submits, "there is nothing about country of origin labelling that

4 US – Section 337 of the Tariff Act , para. 5.11: see Canada's first written submission, paras. 87 and 88
and Mexico's first written submission, para. 217, with reference to the Appellate Body Report, Korea – Various
Measures on Beef, para. 137 and Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes ,
para. 93.
5 Appellate Body Report, Korea – Various Measures on Beef, para. 137.
6 Mexico's first written submission, para. 5.

is inherently unfavourab le to imported products".
7 At times it may even favour imported product.
Australia maintains its own mandatory country of origin labelling requirements and as an exporter of
many products to countries with country of or igin labelling requirements seeks to ensure such
requirements do not hinder international trade. Australia notes many WTO Members maintain
country of origin labelling requirements.
14. However, Australia agrees with Mexico's cl aim that the COOL measure discriminates "by
virtue of its design, structure and application". 8 Australia's concerns focus on the higher cost burdens
the requirements place on the use of imported produc t throughout the chain of supply. The COOL
requirements applicable to ground beef are an example of such de facto discrimination, as labelling of
all possible countries of origin in accordance with the 60 day inventory allowance could distort the
market in favour of domestic product and is likel y to result in discrimination against imported
product.
15. Should the Vilsack Letter be found to be a "technical regulation", Australia agrees with
Canada's assessment that the effect of the labelling practices in the letter "would severely curtail the
ability to commingle meat from various countries of origin". 9 Both production step labelling and
extending coverage to processed meats would impo se higher costs where imported product is used.
Further, a reduction in the ground meat inventory allowance to 10 days as set out in the Vilsack Letter
(from the 60 day requirement contained in the 2009 Final Rule) would reduce the minimal flexibility
currently available to processors. There woul d be a corresponding increase in compliance costs
relating to traceability, record keeping and packaging or other forms of labelling as labels would have
to be changed more frequently.
C. ARTICLE 2.2 OF THE TBT AGREEMENT
16. Article 2.2 of the TBT Agreement grants Member s the right to adopt technical regulations for
the purpose of fulfilling legitimate objectives. Australia submits the correct analysis under Article 2.2
involves examination of:
 whether the objective of the measure at issue is a legitimate objective;
 whether the measure at issue is more trade-r estrictive than necessary to fulfil a legitimate
objective, which in turn involves an assessment of:
 whether the measure is trade-restrictive;
 whether the measure is to fulfil a legitimate objective; and
 whether there are other reasonably available alte rnatives that may be less trade-restrictive
while still fulfilling the legitimate objective at the level of protection the Member
considers appropriate; and
 the risks non-fulfilment [of the legitimate objective] would create.
17. Firstly, Australia submits that an examination of the legitimacy of an objective is confined to
an examination of whether the objective put forw ard by the respondent is legitimate within the
meaning of Article 2.2. The text of Article 2.2 provides that legitimate objectives include, among

7 United States' first written submission, para. 141.
8 Mexico's first written submission, para. 5.
9 Canada's first written submission, para. 28.

other things, the prevention of deceptive practices and the protection of human health and safety.
Article 2.2 does not expressly restrict what might be legitimate objectives; the list is not exclusive.
The United States has put forward the provision of cons umer information so as to minimise consumer
confusion as the legitimate objective of the COOL measure. 10 Australia regards enabling consumers
to identify the source of a product a legitimate objective for the purposes of Article 2.2.
18. Second, Australia considers that Article 2.2, in requiring that a challenged measure must be
necessary "to fulfil a legitimate objective", means that the measure must fulfil or at least have the
capacity to fulfil, the legitimate objective. The rele vant question in this dispute is whether the COOL
measure does carry out, or has the capacity to car ry out, its stated objective of providing accurate
additional consumer information.
19. In Australia's view, Canada has identified aspect s of the COOL measure that do not appear to
achieve that stated objective, particularly in the labelling of ground beef. 11 In some respects, the
COOL measure can in fact result in misleading and inaccurate information. In particular, the 60 day
inventory allowance could result in inaccuracy, as the label could identify the origin of products not in
fact used in the ground beef.
20. Third, as noted by Canada and Mexico, GATT disciplines on the use of restrictions are meant
to protect not "trade flows", but rather the "competitive opportunities of imported product". 12 Trade-
restrictive measures therefore include those that impose any form of limitation, discriminate against or
deny competitive opportunities to imported product. In Australia's view, the COOL measure limits
trade by imposing recordkeeping and segregation cost s which are likely to be greater when imported
product is used and thus impact on the competitive opportunities of imported product.
21. Australia notes that elements of the "necessity " analysis developed under GATT Article XX
are similar to the elements contained in the language of Article 2.2 of the TBT Agreement. Applied
to Article 2.2, establishing the necessity of the tr ade-restrictive elements of the COOL measure may
require consideration of the extent to which the tr ade-restrictive elements make a contribution to the
legitimate objective or contribute to the realisation of the end pursued: the greater the contribution the
more easily the trade-restrictive elements of the measure might be considered necessary.13
22. Thus, with respect to ground beef, the COOL measure does not appear to fulfil its objective
and further, may be more trade-restrictive than necessary given the reasonable availability of other
alternatives.
23. One possible alternative would require labels to identify "domestic" or "imported" product
(without specifying the particular country of origin). This greater flexibility would enable processors
to use imported product without needing to segregate product by country of origin or adjust
recordkeeping practices to avoid financial penalties under the COOL measure.
24. In summary, Australia considers that the trad e-restrictive aspects of the COOL measure are
not necessary to fulfil the stated objective of provi ding accurate consumer information and that the

10 United States' first written submission, para. 206 . The United States notified the "objective and
rationale" as "consumer information" in its amended Notification to the Committee on Technical Barriers to
Trade: G/TBT/N/USA/281/Add.1, 7 August 2008.
11 Canada's first written submission, paras. 178-180.
12 Canada's first written submission, para. 184 and Mexico's first written submission, para. 306 citing
Panel Report, EC – Bananas III (Article 21.5 – Ecuador II) , at para. 7.330 and Panel Report, EC – Bananas III
(Article 21.5 – US), at para. 7.677.
13 Appellate Body Report, Korea – Various Measures on Beef, paras. 160-163.

objective of providing consumer information could be fulfilled by the less trad e-restrictive alternative
for ground beef outlined above.
D. A
RTICLE 2.4 OF THE TBT AGREEMENT
25. Mexico identifies the Codex General Standard for the L abelling of Prepackaged Foods
("CODEX-STAN 1-1985") prepared by the Codex Comm ission as a "relevant" international standard
upon which the COOL measure should be based. Australia queries whether the purpose of the
CODEX-STAN 1-1985 is relevant or bears upon the COOL measure, which is not intended directly to
address misleading or deceptive labelling practices (though it may complement such practices).
26. In the alternative, should the Panel find that CODEX-STAN 1-1985 is a relevant standard that
should have provided the basis for the COOL me asure, Australia considers that CODEX-STAN 1-
1985 is unlikely to be effective or appropriate in all cases to fulfil the legitimate objective of
providing accurate consumer information.
IV. THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT 1994)
27. Australia notes the three elements that must be satisfied to establish a violation of GATT
Article III:4: that the imported and domestic products are "like products"; that the measure at issue is
a "law, regulation, or requirement affecting their internal sale, offering for sale, purchase,
transportation, distribution, or use"; and that the imported products are accorded "less favourable
treatment" than that accorded to like domestic products.
14
28. As under Article 2.1 of the TBT Agreement, Au stralia considers that the COOL measure has
the potential to impose higher cost burdens on the use of imported product throughout the chain of
supply and therefore provides less favourable treatment to imported product contrary to Article III:4
of GATT 1994.
V. CONCLUSION
29. In Australia's view, contrary to the national treatment obligations in Article 2.1 of the
TBT Agreement and Article III:4 of GATT 1994, the COOL measure has the potential detrimentally
to affect the conditions of competition so as to discriminate against impor ted product, resulting in
treatment less favourable for such products.
30. Furthermore, Australia believes the COOL measure is inconsistent with the obligation set out
in Article 2.2 of the TBT Agreement, in that the tr ade-restrictive nature of the COOL measure is not
necessary to fulfil its objective of providing accu rate consumer information, given less trade-
restrictive and reasonably available alternatives, in cluding that identified by Australia in relation to
ground beef.

14 Appellate Body Report, Korea – Various Measures on Beef, para. 133.

ANNEX C-2

THIRD PARTY ORAL STATEMENT OF AUSTRALIA
AT THE FIRST SUBSTANTIVE MEETING

I. INTRODUCTION
1. Mr Chairman, members of the Panel. Thank you for the opportunity to present Australia's
views on this dispute, which raises important issu es of legal interpretation. Australia highlighted
some of these issues in its written submission. We will not repeat all of those arguments today.
2. Instead, in this statement we will identify some of the key questions which Australia believes
the Panel should address in relation to the claims by Canada and Mexico that the US COOL measure
is inconsistent with Articles 2.1 and 2.2 of the TBT Agreement; and in relation to the arguments put
by the United States to the contrary.
3. Whilst noting the claims of Canada and Mexico extend beyond Articles 2.1 and 2.2, Australia
has chosen to focus on these articles, and on th ese questions, because many of the questions have not
yet been specifically addressed by a panel or the Appellate Body.
II. QUESTIONS FOR THE PANEL'S CONSIDERATION
A. WHAT IS THE NATURE OF THE COOL MEASURE?
4. Canada and Mexico have broa dly identified the COOL measure to encompass a number of
individual measures, which together make up the measure at issue in these proceedings.
5. Australia submits that the Panel must decide whether the COOL measure, as identified by
Canada and Mexico, is a measure for the purpos es of dispute settlement under the DSU and a
technical regulation for the purposes of the TBT Agreement.
6. Of particular interest in this calculus, is th e Panel's characterisation of the so-called Vilsack
Letter, sent by US Secretary of Agriculture Thomas J. Vilsack to Industry Representatives on 20
February 2009.
7. In Australia's view, the Vilsack Letter is an act directly attributable to the executive of a WTO
Member, and therefore, consistent with the Appellate Body's comments in US – Corrosion-Resistant
Steel Sunset Review , challengeable in WTO dispute settlement proceedings. The letter is an official
document that sets out in detail the official position of the US Department of Agriculture as mandated
by the Secretary of that department and is char acterised by the Secretary as representing the will of
the US Congress.
8. For the purposes of the definition of a technical regulation in Annex 1 of the TBT Agreement,
a further consideration is whether the Vilsack Lette r is a mandatory element of the COOL measure.
This issue is addressed by Mexico in its submi ssion. Australia notes the argument by the United
States that compliance with the Vilsack Letter is in fact voluntary. However, Australia believes that
none of the factors set out by the United States in support of this contention are necessarily
determinative of whether the Vilsack Letter is in fact mandatory, or "binding or compulsory". Nor is
the US Department of Agriculture's characterisati on determinative. Rather, the critical question for
the Panel to examine is whether industry views the letter as mandating action.

B. T
O WHAT PRODUCTS DOES THE COOL MEASURE RELATE?
9. Canada and Mexico have based their claims under Article 2.1 of the TBT Agreement (and
Article III:4 of GATT 1994) on an analysis of 'like product' between Canadian and Mexican live cattle
on the one hand, and US live cattle on the other; and between Canadian and US live hogs.
10. Australia notes that the COOL measure applies broadly to a range of covered commodities,
including beef trimmings for which Australia has a particular export interest. In its third party
submission, Australia also submits that imported beef trimmings are a like product to US domestic
beef trimmings used in ground beef.
11. In addressing this issue, the Panel should cons ider whether Canada and Mexico (with what
appears to be agreement from the United States) are correct in applying the GATT Article III:4
analysis of like product to the analysis of like product under Article 2.1 of the TBT Agreement.
12. Further, the Panel ought to reject the US argumen t that the subject of the COOL measure is in
fact meat and not livestock, and therefore Canada and Mexico's claim fails, as they have not
demonstrated that Canadian and Mexican meat is a like product to US meat.
13. In this respect, Australia notes that such a na rrow interpretation of the phrase "in respect of
technical regulations" in Article 2.1 would in fact undermine the application of the Article. It would
allow, for example, a country to actively discriminate against a broad range of source products,
simply because those source products are not the subject of, or "in respect of" the actual technical
regulation.
14. Australia submits the better view, in particular with respect to country of origin labelling
requirements, is that Article 2.1 should be applie d so as to encompass like products that, at whatever
point of the supply process, are required to be iden tified for the purposes of labelling the end product.
Applied to the COOL measure, all early stage pr oducts, whether livestock, muscle cuts or beef
trimmings used in ground beef, would be subject to the disciplines of Article 2.1.
C. D
OES THE COOL MEASURE PROVIDE FOR TREATMENT LESS FAVOURABLE?
15. Australia notes the approach taken by Cana da and Mexico drawing upon the analysis
developed under GATT Article III:4 in determini ng whether the COOL measure provides for less
favourable treatment to like products of non-na tional origin. Should the Panel agree with this
approach, then Australia believes the critical questio n for the Panel to examine is whether the COOL
measure "modifies the conditions of competition in th e relevant market to the detriment of imported
products" (as articulated by the Appellate Body in the Korea – Various Measures on Beef dispute).
16. In this case, where the measure provides for formally identical treatment on its face, the Panel
should also consider whether the measure has th e potential to accord de facto less favourable
treatment. Canada and Mexico both seek to de monstrate the COOL measure accords differential
treatment to imported livestock that amounts to le ss favourable treatment w ithin the meaning of
Article 2.1 of the TBT Agreement. Put simply, Ca nada and Mexico contend that the COOL measure
results in additional operational costs on imported produc t, in particular with respect to segregation
and recorC-keeping, than the costs it imposes when domestic product is used.
17. Should the Panel agree with Canada and Mexico on this point, then Australia would submit
this does constitute differential (and less favourable) treatment for the purposes of Article 2.1 of the
TBT Agreement.

18. Australia also believes this differential (and less favourable) treatment extends to ground beef,
as another covered commodity of the COOL measure. As the ground beef market in the United States
is currently structured, it is more likely that US b eef trimmings used in ground beef will be present in
the inventory of a production plant compared to imported beef trimmings from any one country.
Accordingly, the impact of the COOL measure w ould be felt most heavily when imported product is
used, creating an incentive for processors to fa vour domestic product (and to discriminate against
imported product).
19. Australia does not believe that country of orig in labelling schemes generally are "inherently
protectionist and discriminatory", as claimed by Mexico in its submission. Rather, the question for
the Panel is whether the US COOL measure provid es (or has the potential to provide) treatment less
favourable by virtue of its "design, structure and application".
D. IS THE COOL MEASURE'S OBJECTIVE LEGITIMATE?
20. For the purposes of Article 2.2 of the TBT Agreem ent, Australia submits the Panel must first
determine whether the objective of the measure at issue is legitimate.
21. Consistent with the findings of the Appellate Body in the EC-Sardines dispute, Australia
believes that an examination of legitimacy is c onfined to whether an examination of the stated
objective, as put forward by the United States, is legitimate within the meaning of Article 2.2. It does
not extend to an examination of whether the stated objective is actually the objective of the measure.
Rather, Australia invites the Panel to determine, with regard to the text of Article 2.2, whether the
United States' stated objective of the COOL measure – to provide consumer information so as to
minimise consumer confusion – is in fact legitimate.
22. In Australia's view, the United States, throug h the COOL measure, is seeking to provide
consumers with additional useful information. Australia considers that such an objective is a
legitimate objective, and accepts the US view that this objective is "closely related" to preventing
deceptive practices.
E. D
OES THE COOL MEASURE FULFIL ITS LEGITIMATE OBJECTIVE?
23. Australia considers the Panel must then separat ely decide whether the COOL measure fulfils
the stated objective. Australia submits the Panel must determine whether the COOL measure actually
carries out, or at least has the capacity to carry out, its stated objective of providing accurate
additional consumer information. Should the Panel conclude that a complainant has demonstrated
that a measure does not or could not achieve its st ated objective, it would be open to conclude the
measure does not meet the terms of the second sente nce of Article 2.2 and therefore amounts to an
unnecessary obstacle to trade within the meaning of the first sentence of Article 2.2.
24. In this regard, Australia notes Canada's argumen ts in particular, that the COOL measure does
not appear to achieve its stated objective of provid ing accurate consumer information, with respect to
the labelling of meat products derived from livestock and of ground beef.
F. A
RE THERE ANY REASONABLY AVAILABLE ALTERNATIVES?
25. Australia submits that the correct analysis ca lled for under Article 2.2 also requires the Panel
to decide whether there are other reasonably availabl e alternatives that may be less trade-restrictive
while still fulfilling the legitimate objective at the level the respondent considers appropriate.

26. Australia notes that the complainants, as well as a number of third parties to this dispute, have
highlighted a number of reasonably available alte rnatives, including: voluntary labelling schemes;
labelling schemes based on s ubstantial transformation; and, in Australia's case, mandatory labelling
which identifies imported or domestic product (without specifying the particular country of origin).
27. Australia submits if the alternative of marki ng product with 'imported' or 'domestic' were
adopted, this would achieve greater accuracy with respect to the labelling of ground beef and be less
trade-restrictive than the existing requirements under the COOL measure. Nonetheless, the objectives
of the COOL measure would still be met: accurate, additional information would be available to
consumers, in particular whether the source of th e product was domestic or foreign. Adopting this
approach would reduce associated segregation and r ecordkeeping costs, as processors would not need
to segregate product by each particular country of or igin. Notably, processors would always have the
option of voluntarily identifying specific countries of origin if consumer demand justified the
additional cost.
III. CONCLUSION
28. In conclusion, Australia considers the Panel should pay careful attention to the following
questions, amongst others, in assessing the consistency of the COOL measure:
 What is the nature of the COOL measure?
 To what products does the COOL measure relate?
 Does the COOL measure provide for treatment less favourable?
 Is the COOL measure's objective legitimate?
 Does the COOL measure fulfil its legitimate objective?
 Are there any reasonably available alternatives?
29. Australia considers, in general, that mandatory country of origin labelling regimes must be
designed and implemented in the least trade-restri ctive manner possible so that imported products are
not subject to less favourable treatment than like domestic products due to labelling requirements.
30. In Australia's view, contrary to the national treatment obligations in Article 2.1 of the
TBT Agreement and Article III:4 of GATT 1994, the COOL measure has not been designed in such a
manner. It has the potential to detrimentally affect the conditions of competition so as to discriminate
against imported product, resulting in treatment less favourable for such product.
31. Furthermore, in Australia's view, the COOL measure does not appear to be consistent with the
obligation set out in Article 2.2 of the TBT Agreement in that the trade-restrictive nature of the COOL
measure is not necessary to fulfil its objective given the less trade-restrictive and reasonably available
alternatives identified by the parties and third parti es, including by Australia in relation to ground
beef.
32. Australia would be pleased to provide answers to any questions from the Panel, including as
requested on Australia's mandatory country of origin labelling regime.

ANNEX C-3

THIRD PARTY ORAL STATEMENT OF AUSTRALIA
AT THE SECOND SUBSTANTIVE MEETING

I. INTRODUCTION
1. Mr Chairman, members of the Panel, thank you for this further opportunity to present
Australia's views in this dispute, and in particul ar, for the opportunity to participate in this second
panel hearing.
2. In this statement we have chosen to focus on some of the key questions the Panel may wish to
address in its consideration of Article 2.2 of the TBT Agreement.
II. QUESTIONS FOR THE PANEL'S FURTHER CONSIDERATION
A. HOW SHOULD THE PANEL APPROACH ITS INTERPRETATION OF ARTICLE 2.2 OF THE
TBT AGREEMENT?
3. One such question is how the Panel should approach its interpretation of this Article.
4. Australia submits that the second sentence of Article 2.2 elaborates on the meaning of the
fundamental discipline in the first sentence. T hus the elements in the second sentence must be
considered in the context of the overarching commitm ent to ensure that technical regulations are not
unnecessary obstacles to international trade.
5. Accordingly, Australia agrees with the principa l parties that the first threshold question for
the Panel to address under Article 2.2 is whether a t echnical regulation is 'trade restrictive' or an
'obstacle to international trade'.
6. Australia notes that GATT disciplines on the use of restrictions are meant to protect the
competitive opportunities of imported products rather than trade flows. 1 Given this, Australia agrees
with Canada and Mexico that a measure may be tr ade restrictive if it imposes any form of limitation
on imports, discriminates against imports or denies competitive opportunities to imports.
7. If the measure is found to be trade restrictive, Australia submits that the Panel must then
determine whether it is more trade restrictive th an necessary to fulfil a legitimate objective, taking
account of the risks non-fulfilment would creat e, in accordance with the second sentence of
Article 2.2. In other words, the Panel must assess whether the measure is an unnecessary obstacle to
international trade.
B. HOW SHOULD THE PANEL APPROACH ITS ASSESSMENT OF THE LEGITIMACY OF THE OBJECTIVE
OF THE COOL MEASURE?
8. The next question Australia would like to address is how the Panel should approach its
assessment of the legitimacy of the objective of the COOL measure.

1 See citations in Australia's third party written submission, para. 71.

9. Australia considers that the correct approach is first to establish the objective of the measure
and then to consider the legitimacy of that objective, taking into account the fundamental obligation in
the first sentence of Article 2.2.
10. In making its preliminary determination of the obj ective of the measure, Australia agrees with
the United States that the Panel should start with the text of the measure.
2
11. Broader evidence relevant to the development of a measure may be considered by the Panel in
making this determination. Howe ver, in Australia's view, the Panel should not lightly overturn the
stated objective of a measure.
12. Australia notes that some parties and third parties have argued that for objectives not
specifically listed in Article 2.2, including, in th is case, the provision of consumer information, a
Member must provide 'clear and compelling evidence' 3 of its legitimacy. This includes evidence of a
wider intent to implement a particular policy goal.
13. The inclusion of the term inter alia before the list of objectives in Article 2.2 clearly indicates
this list is non-exhaustive. Further, the TBT Agre ement affords flexibility to Members to implement
technical regulations to pursue any number of legitimate domestic policy objectives.
14. Setting high thresholds for objectives not listed in Article 2.2 runs the risk of curtailing this
flexibility. It may also result in Members attempting to artificially adjust the 'official' objective of a
regulation so that it fits neatly within one of the listed objectives.
15. Australia believes the objective of providing cons umer information is closely related to the
prevention of deceptive practices. Providing additio nal accurate information about a product also
assists consumers to make informed purchasing deci sions. In Australia's view, the provision of
consumer information is clearly a legitimate objective for the purposes of Article 2.2.
C. HOW SHOULD THE PANEL APPROACH THE QUESTION OF WHETHER THE COOL MEASURE
FULFILS THE LEGITIMATE OBJECTIVE?
16. Moving on to the next question, Australia su bmits that the Panel must assess whether the
COOL measure 'fulfils' its legitimate objective. In this regard, assuming that the objective of the
measure is to provide information to consumers a nd prevent consumer confusion, the COOL measure
must actually carry out, or at least have the capacity to carry out, this objective.
17. Although we agree that a Member has some di scretion to pursue legitimate objectives at the
levels it considers appropriate, th is discretion does not extend to a Member being able to introduce
measures that do not actually fulfil, or are not capable of fulfilling, the legitimate objective.
18. In this case, evidence that may be relevant to this enquiry includes whether the information
provided to consumers under the COOL measure is potentially inaccurate or misleading. Australia
notes the example of the application of the COOL m easure in relation to ground beef where a country
of origin may potentially be listed on the label of a product that does not in fact include any product
from that country.

2 United States' second written submission, para. 119.
3 Canada's second written submission, para. 70; New Zealand's written submission, para. 32.

D. TO WHAT EXTENT IS IT UP TO THE RELEVANT MEMBER TO STRIKE A BALANCE BETWEEN
FULFILLING THE LEGITIMATE OBJECTIVE AND REDUCING TRADE RESTRICTIVENESS?
19. The United States emphasises that the TBT Agre ement allows Members to design measures
to achieve legitimate objectives at th e level they consider appropriate. 4 Given this, the United States
argues that the COOL measure was specifically desi gned to strike what it considers to be an
appropriate balance between achieving its objec tive of providing consumer information whilst
reducing the costs of compliance.5
20. Australia agrees that a Member can exercise some discretion in pursuing measures that
achieve its legitimate objectives at the levels it considers appropriate. However, there is a limit to that
discretion. The panel in EC – Sardines emphasised that although the TBT Agreement accords a
degree of deference with respect to the policy objec tives Members may wish to pursue, 'it shows less
deference to the means which Members choose to employ to achieve their domestic policy goals'6.
21. This is reflected in the preamble to the TBT Agreement which includes the caveat that a
measure must not be applied in a manner which woul d constitute a 'means of arbitrary or unjustifiable
discrimination'. In the specific context of Article 2. 2, the check on a Member's discretion is borne out
in the question of whether the measure is an unnecessary obstacle to international trade. And, as
discussed, this may in turn necessitate a considerati on of the factors set out in the second sentence of
Article 2.2.
22. It is Australia's view that although it is up to the United States to decide which policy
objectives they wish to pursue and the levels at whic h they wish to pursue them, it is for the Panel to
determine whether the means by which the United St ates has chosen to achieve this – the COOL
measure – are more trade restrictive than necessary to fulfil the legitimate objective to the extent
identified by the United States.
E. HOW 'IMPORTANT' IS THE OBJECTIVE OF PROVIDING CONSUMER INFORMATION AND TO WHAT
EXTENT SHOULD THE PANEL SHOULD TAKE THIS INTO CONSIDERATION?
23. Australia submits that a finding as to whether a technical regulation is 'more trade restrictive
than necessary to fulfil a legitimate objective' must be weighed against the risks non-fulfilment of the
particular legitimate objective would create. If the ri sks associated with non-fulfilment of a particular
objective are high, a measure may still be justified regardless of its trade-restrictiveness.
24. Australia agrees that such risks may differ depending on the nature or, as suggested by
Canada, the importance of the legitimate objective the measure is designed to fulfil.7
25. Australia is however concerned by any impli cation that the COOL measure's objective of
providing additional consumer information is of low importance.
26. Australia emphasises that providing consumer in formation can be an important objective.
This is particularly the case given the increasingl y globalized and complex supply chains for products
such as beef and other consumables. The importance of providing consumer information is evidenced
by the significant number of Members which mainta in, or intend to maintain, a COOL scheme of
some description.

4 United States' second written submission, para. 154.
5 United States' first written submission, para. 238.
7 Canada's second written submission, para. 86.

27. The parties have acknowledged that COOL schemes are not per se WTO inconsistent.
8
Australia would therefore caution that a finding that the objective of providing consumer information
is of such a low order that only limited trade restrictiveness would be justifiable may have the
practical effect that no Member can maintain or implement COOL measures for the purpose of
providing information to its consumers.
F. WHAT IS THE RELEVANT EVIDENTI ARY THRESHOLD WHEN CLAIMING DE FACTO
DISCRIMINATION?
28. Finally, Australia also wishes to briefly comment on the evidentiary threshold that must be
met when claiming de facto discrimination under the national treat ment principle in Article III:4 of
the GATT 1994 and Article 2.1 of the TBT Agreement.
29. In particular, Australia notes the submission by the European Union that there is a 'high
threshold and a need for particular rigour' in proving a de facto discrimination case. 9 In addition, the
European Union has suggested that it may be n ecessary for a complainant to wait for an undefined
period of time to accurately assess the impacts of the regulation to determine whether there are equal
opportunities for the different goods concerned.10
30. Australia wishes to emphasise that the national tr eatment principle 'protects expectations' of
the equality of the competitive relationship between imported and domestic products.11 This approach
is necessary to avoid the situation where a Member is only able to challenge regulations after the
event and not in order to forestall less favourable treatment.12
31. Australia recalls its argument in relation to ground beef that the COOL measure has the
potential to impact on the competitive opportunities of imported products to th e detriment of those
products.
III. CONCLUSION
32. To conclude, in this statement we have s ought to highlight some of the key issues of
interpretation surrounding Article 2.2 of the TBT Agreement, a provision on which there has been
limited guidance to date.
33. In particular, Australia submits that the Pa nel's assessment of the trade-restrictiveness
inherent in the COOL measure's structure and design, and its ability to fulfil its legitimate objective,
may be particularly relevant considerations in determining whether the COOL measure is inconsistent
with Article 2.2.
34. Australia would be pleased to answer any questions from the Panel.

8 See, for example, Canada's responses to the Pane l's questions from the first substantive meeting,
para. 73; Mexico's Responses to the Panel's questions from the First Substantive Meeting, para. 103.
9 Replies to the First Questions by the European Union, para. 32.
10 Ibid, para. 29-30.
11 Appellate Body Report, Japan – Alcoholic Beverages II, page 16; GATT Panel Report, US – Section
337 Tariff Act, para. 5.13; Appellate Body Report, US – FSC (Article 21.5 – EC) , para. 215; Panel Report,
Korea – Various Measures on Beef, paras. 623-, 627.
12 GATT Panel Report, US – Section 337 Tariff Act, para. 5.13.

ANNEX C-4

THIRD PARTY WRITTEN SUBMISSION OF BRAZIL

I. INTRODUCTION
1. Brazil welcomes this opportunity to provide its views in these proceedings. As one of the
largest producers and exporters of some of the co mmodities covered by the measures at issue in this
dispute, Brazil has significant interests in the outcome of this dispute, the factual analysis to be
conducted by the panel and the lega l interpretation to be develope d. Moreover, not only the United
States but also many other large markets for Braz ilian products have been applying a growing number
of technical barriers to trade, of increasing complexity.
2. Brazil believes that better consumer information may be beneficial to the economy and to the
society at large, as it may allow more informed purchasing decisions by consumers. However, Brazil
is especially concerned with the risk posed by so me measures, such as labelling requirements, which
might open a new avenue for disguised protectionism if not properly disciplined. Therefore, their
consistency with the covered agreements should be evaluated with utmost caution by panels.
3. One of the critical aspects when dealing with technical regulations is the difficulty in
determining whether a specific measure responds prim arily to a public interest or to protectionist
interests. Sometimes the problem is compounded by the fact that both motives may be combined in a
single technical regulation. Thus, a panel should always carefully analyse not only the alleged
justification, but also the design and operation of specific measures in this domain.
II. INTERPRETATION OF TBT ARTICLE 2.2
4. Both complainants claim that the COOL measure violates, among others, Article 2.2 of the
Agreement on Technical Barriers to Trade ("TBT Agre ement"). In this connection, Brazil would like
to offer its views on some elements that it belie ves should be taken into account in the panel's
interpretation of Article 2.2.
5. Article 2.2 establishes that:
"Members shall ensure that technical regula tions are not prepared, adopted or applied
with a view to or with the effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be more trade-restrictive than
necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment
would create. Such legitimate objectives are, inter alia: national security
requirements; the prevention of deceptive 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, in ter alia: available scientific and technical
information, related processing technology or intended enC-uses of products."
6. The reading of this article suggests that the fo llowing sequence of analysis may be useful in
assessing compliance with Article 2.2 of the TB T Agreement: (i) first, the Panel should assess
whether the objective stated by the regulating Memb er is "legitimate"; (ii) second, if the stated
objective is found to be legitimate, the Panel shoul d evaluate whether the actual measure at issue
bears a rational link with the stated objective. If that is the case, then (iii) the measure at issue should
be subject to the "necessity test" that is provided under Article 2.2. Such a test entails an assessment
of whether the technical regulation in question is more trade-restrictive than necessary to fulfil the

legitimate objective in point. This assessment may include, inter alia, consideration of the degree of
trade-restrictiveness of the technical regulation; its effectiveness in fulfilling the given objective; and
possible less trade-restrictive alternative measures which might be reasonably available.
A. "M
ORE TRADE-RESTRICTIVE THAN NECESSARY"
7. The interpretation of the phrase "more trade-re strictive than necessary " in Article 2.2 can
draw – as relevant context and as acknowledged by the parties – on the interpretation of the term
"necessary" in Article XX of the GATT 1994 and on the combined reading of Article 5.6 and footnote
3 of the Agreement on the Application of Sanita ry and Phytosanitary Measures ("SPS Agreement").
Although Brazil agrees with the contextual impor tance of these provisions, one should be cautious
with the US approach regarding the importation of the "significantly" less trade restrictive standard
from footnote 3 to Article 5.6 of the SPS Agreement into Article 2.2 of the TBT Agreement, as that
term is found only in that specific agreement.
8. The letter sent by the GATT Director-General to the U.S Chief Negotiator, mentioned by the
United states in Paragraph 248 of its submission, do es not serve – in Brazil's view – as confirmation
that the standard set out in footnote 3 to the SPS Agreement applies to the TBT Agreement. Brazil
disagrees that a letter sent by the then Director-G eneral to only one WTO Member may, by itself,
inform the meaning of a multilateral agreement. Mo reover, as that same letter acknowledges in the
passage immediately preceding the citation made by the U.S., "…it was not possible to achieve the
necessary level of support for a US proposal [concerning a clarifying footnote to Article 2.2 and 2.3 of
the TBT Agreement]…" 1
9. In addition, Article 2.2 expressly provides that this "necessity test" must take account of, and
thus be informed by, the risks that could be cr eated by non-fulfilment of the legitimate objective
contemplated by the measure. Brazil comments on some of these elements below.
B. ASSESSMENT OF THE PURSUED OBJECTIVES
10. The first two elements of the sequence indicated above are, first, whether the objectives stated
by the regulating Member are "legitimate" and, second, if the stated objectives are found to be
legitimate, whether the actual measures at issue bear a rational link with the stated objectives. Both
questions involve factual issues that the Panel must assess based on the evidence before it.
11. In the present dispute, the United States claims that its "COOL measures" qualify as technical
regulations, have the stated objective of providi ng information to consumers and are an adequate
means to achieve that objective, which the United States deems legitimate under Article 2.2.2
12. A Member imposing a technical regulation is en titled to define its objective or objectives.
This does not mean, however, that a panel has no role to play in determining whether the actual
objectives of the technical regulation are "legitimate." In EC – Sardines, with respect to article 2.4 of
the TBT, the Appellate Body agreed with the pane l that it was "required to determine the legitimacy
of [the] objectives" for claims asserted under Article 2.4 of the TBT Agreement:3

1 Exhibit US-53.
2 United States' first written submission, para. 131.

… we share the view of the Panel that the second part of Article 2.4 implies that there
must be an examination and a determination on the legitimacy of the objectives of the
measure.4
13. The same reasoning is equally valid under Article 2.2.
C. "TAKING INTO ACCOUNT THE RISKS THAT NON-FULFILMENT WOULD CREATE"
14. Another interpretative issue raised by Article 2.2 is the meaning and scope of the ending
clause of the second sentence: "… technical regulati ons shall not be more trade-restrictive than
necessary to fulfil a legitimate objective, taking acc ount of the risks non-fulfilment would create."
This phrase must be read together with an illustrative list of factors in the last sentence of Article 2.2
that regulating Members must "tak[e] account" "in assessing such risks". Together, these Article 2.2
provisions require that a Member proposing a technical regulation must assess the risks that would
arise if the legitimate objective in question were not fulfilled. This involves assessing the importance
of the objective and the harm that could arise if the legitimate objective were not met.
15. Such risks would have to be assessed qualitativel y and/or quantitatively by the Member. In
Brazil's view, an essential part of this aspect of th e risk assessment would be to assess the importance
of the legitimate objective.
5 For example, if the legitimate objective were the protection of human life
and health, then the risks of non-fulfilment would likely be extremely high. If the objectives were
different, the risks could be lower. The result of such risk assessment would then have to be brought
to bear on the inquiry as to the necessity of the t echnical regulation in light of its degree of trade-
restrictiveness and thus as to whether it is more trade restrictive than necessary to fulfil the given
objective.
16. These risk assessment provisions in Article 2.2 are an integral part of the core obligation in
Article 2.2, i.e., that a "technical regulation [not be] more trade-restrictive than necessary to fulfil a
legitimate objective." Where an assessment of the ri sks of non-fulfilment shows that these would be
negligible, the proposed technical regulation may lik ely be not "necessary", or more trade restrictive
than necessary, within the meaning of Article 2.2.
17. Translating these considerations into the circ umstances of the present case, it seems that the
question to be asked would be about the risks, or consequences, of consumers in the United States not
being informed, in all instances, of the origin of the covered commodities. The underlying issue here
would also revolve around what confers "origin", according to consumers' perception, to, for example,
processed beef. On a more fundamental level, it may become relevant to consider what the concept of
"origin" implies in multinational or regional integrat ed economic sectors. With relation to the covered
commodities, it may be important to understand how and to what extent place of birth, feeding,
slaughtering and processing (and even the geographic origin of the genetic material) have a bearing on
the assignation of "origin".
18. Additionally, the panel may also want to asse ss the added value provided by the information
given to consumers, relative to products that, acco rding to the United States, do not seem to represent
very significant import shares
6. On the basis of the specific facts of the present dispute, the Panel may
want to consider whether the trade-restrictiven ess caused by the COOL measu re bears any correlation
with the importance of the objective and the alleged commercial impact the measure is having.

4 Appellate Body Report, EC – Sardines, para. 286.
5 See, e.g., Appellate Body Report, Korea – Various Measures on Beef, para. 164.
6 United States' first written submission, paras. 90 and 108.

19. Furthermore, the complainants submit, as alte rnative less trade-restrictive measures, the
possibility of voluntary country-of-origin labelling. The United States rebuts this allegation affirming
that such an option has already b een attempted, with little adhesion, and therefore, in its view, the
objective of informing consumers was not achieved
7. It may be relevant to inquiry whether this
absence of participation of producers and retailers is not due to perceived considerable costs and
insufficient consumer interest in labelling information.
20. In the light of the above considerations, it must also be noted that the wording of Article 2.2,
by linking the legitimacy of objectives, the need to avoid unnecessary trade restrictions and the need
to assess the risks of non-fulfilment of a legitimate objective, follows a rationale that suggests the
search for a balance between ends and means of a technical regulation vis-à-vis its effects on trade.
Therefore, when assessing conformity with Article 2.2, the Panel should ascertain whether this
balance has been met by the technical regulation at issue, on the basis of the evidence before it.
III. CONCLUSION
21. Brazil appreciates the opportunity to comment on the issues at stake in this dispute, and hopes
this submission may assist the Panel in examining the matter.

7 United States' first written submission, paras. 252-253.

ANNEX C-5

THIRD PARTY ORAL STATEMENT OF BRAZIL
AT THE FIRST SUBSTANTIVE MEETING

1. Mr. Chairman, distinguished Members of the Panel, Brazil appreciates the opportunity to
appear before you and present its views as a Third Party in the current proceedings. Our statement
today will be very brief and concentrate on a fe w issues related to the interpretation of the
TBT Agreement – in particular its Article 2.2.
2. It has been noted that the list of "legitimate objectives" contemplated by Article 2.2 is not a
closed one. It is precisely for this reason that, in Brazil's view, the interpretation of Article 2.2 should
be approached with a high degree of caution. Even though it may be open to a Member to elect which
objectives it considers "legitimate" and adopt technical regulations in order to fulfil those objectives,
such discretion is not unbounded. Otherwise, highl y trade-restrictive measures could be put in place
to meet objectives that, no matter how unreasona ble under generally accepted criteria, could be
unilaterally deemed "appropriate" by the Member implementing the regulation.
3. The United States asserted that "each Member has the right to decide for itself which
legitimate objectives to pursue and to take measures to meet those objectives 'at the levels it considers
appropriate'."
1 Brazil would first note that, while the United States takes the reference to the "levels it
considers appropriate" from the preamble to th e TBT Agreement, this expression appears in the
preamble – unlike Article 2.2 – in connection with only a limited set of objectives, which include the
protection of human, animal or plant life or health and the prevention of deceptive practices, but not,
for example, the provision of information to consum ers. Thus the assertion that a Member may take
measures "at the levels it considers appropriate" to meet any legitimate objective it elects to pursue
does not have a direct legal basis in the TBT Agreement.
4. Second, as stated in its third party submission, Brazil considers that the Panel has a role to
play in determining whether the actual objectiv es of the technical regulation in question are
"legitimate". Brazil does not take a position as to whether the specific objectives pursued by the
United States with the COOL measures are legitimate or not within the meaning of Article 2.2 of the
TBT Agreement. In any event, Brazil agrees with Mexico that, for the purposes of the assessment of
a measure under Article 2.2, an objective should not be defined at such level of generality that would
render it always necessarily "legitimate", but rather at a level of specificity that corresponds to the
measure in point.2
5. As I noted a moment ago, although the list of objectives envisaged by Article 2.2 is not
exhaustive, this does not mean that there are no limits to the discretion of Members implementing
technical regulations . In addition to the issue of the legitimacy of the objectives pursued – an issue
that can, and should, be addressed by the Panel -, a further check is provided by the clause "taking
account of the risks non-fulfilment would create". As Brazil indicated in its third party submission,
this provision invites an assessment of the importanc e of the (presumably legitimate) objectives being
pursued and the harm that could arise if those objectives were not fulfilled.
6. In the circumstances of the present dispute, th e United States seems to be arguing that, if the
objectives being pursued by the COOL measures were not fulfilled, consumers would be confused
about the origin of the products at issue. In Brazil' s view, this is an important part of the analysis

1 United States' opening statement at the first Panel meeting, para. 36.

under Article 2.2 – one that should be subject to careful scrutiny by the Panel. Some relevant
questions would be (i) whether consumers would indeed be left in a state of confusion if the specific
objectives sought with the COOL measures were not fu lfilled; and (ii) what would be the extent and
nature of such confusion. An inquiry into these questions would help reveal the "risks non-fulfilment
would create". Such risks, in turn, would then be brought to bear on the assessment of the necessity
of the technical regulation in light of its degree of trade-restrictiveness and thus on whether it is more
trade restrictive than necessary to fulfil the given objectives.
7. As a final and more general remark, Brazil would urge the Panel to look with special care at
arguments which seek to attribute views, desires or ta stes to consumers. Such views, desires or tastes
should not be lightly assumed but rather substantially backed by evidence. It is also in this connection
that Brazil takes issue with the European Union's statement that "if a domestic political process leads
to mandatory origin labelling, that may reasonably be taken as an indication that consumers want it."
3
This would seem extreme, since the mandatory labelling scheme – or any technical regulation
justified on the grounds of consumer demand, for that matter – would constitute itself the evidence
that consumers want it. Such a view should be rejected.
8. Mr Chairman, Members of the Panel, this concludes our brief statement. Thank you for your
attention.

3 European Union's third party written submission, para.41.

ANNEX C-6

THIRD PARTY ORAL STATEMENT OF BRAZIL
AT THE SECOND SUBSTANTIVE MEETING

1. Mr Chairman, distinguished members of the Panel, it is a pleasure to appear before you today.
In our statement this morning we will briefly addr ess two issues: (i) the question of whether different
instruments could be considered together as a singl e measure; and (ii) the treatment that the Panel
should give to the unsolicited letter addressed to it by the Consumers Union.
1
2. With regard to the first issue, the United States asserts that the Panel should not make findings
with regard to a single "COOL measure", since the separate instruments that the complainants identify
as composing that measure are substantively and legally distinct. The United States thus affirms that
the Panel is effectively required to examine those instruments separately.
2
3. In Brazil's view, the fact that separate instru ments or measures differ in their substance or
legal status does not preclude the possibility that they, operating together, violate specific provisions
of the WTO agreements. Article 3.3 of the DSU provides that one of the purposes of the dispute
settlement system is to address "situations in which a Member considers that any benefits accruing to
it directly or indirectly under the cove red agreements are being impaired by measures taken by
another Member". Nothing in Article 3.3 precludes a claim that a set of measures, working together,
impair benefits accruing to a Member under the covered agreements.
4. In that respect, the legal nature and the substantive content of the individual instruments that
operate together may well be different. One of the instruments could, for example, provide an
interpretation of a legal norm to which it relates. Such an interpretation could or could not be of a
mandatory nature (as the Appellate Body has clarified, in general, the fact that an instrument is not
mandatory does not prevent it from being the subject of dispute settlement proceedings
3). If that
interpretation sheds light on the norm in a way that gives rise to an inconsistency with a WTO
provision, a panel would be entirely justified in concluding that the norm and the interpretation,
considered together, are inconsistent with that provision.
5. In fact, this was exactly one of the conclusions of the panel in the dispute brought against the
European Union concerning tariff treatment of info rmation technology products . In a report that has
been adopted by the Dispute Settlement Body, that panel found that CNENs, which are Explanatory
Notes to the Combined Nomenclatu re of the European Union – interpretive instruments under the EU
law with no legally-binding force -, operating in conjunction with a Council Regulation of the
European Union, violated provisions of the GATT 1994.4
6. Therefore, in Brazil's view, regardless of th e differences among separate instruments, as long
as a complainant claims that the combined operation of those instruments results in a violation of
WTO provisions, a panel should not be precluded from examining that claim and should not instead
be obliged to separately verify the consistency of each instrument with those provisions.
7. It is true that, under the TBT Agreement, the measures at issue are normally technical
regulations – documents which lay down charact eristics, methods or provisions with which

1 Letter by the Panel dated 26 November 2010.
2 United States' opening statement at the second Panel meeting, paras. 12-15.
3 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review (DS244), para. 89.
4 See, for instance, EC – IT Products (US) (DS375), paras. 8.4 and 8.6.

compliance is mandatory. In this regard, Brazil not es however that Article 2.2 of the TBT Agreement
– one of the provisions at issue in this dispute – sets out that "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". In th at context, a document which may not in itself
constitute a technical regulation could nevertheless be relevant to an examination under Article 2.2,
insofar as it is relevant to the application of the technical regulation itself.
8. Finally, Brazil wishes to comment briefly on the unsolicited letter received by the Panel.
Article 13.2 of the DSU provides in part that "Pan els may seek information from any relevant source
and may consult experts to obtain their opinion on certain aspects of the matter." In this regard, Brazil
respectfully submits – and in fact has been reiterating this position for quite a long time now – that the
right to seek information from any relevant source should not be confused with a right – not provided
for under the DSU – to consider information not sought by the Panel.
9. It is Brazil's view that, in accepting a nd considering unsolicited documents such as amicus
curiae briefs, WTO adjudicators may step beyond the rights ascribed to them under the DSU. They
may also potentially open participation in WTO dis pute settlement proceedings to any individual or
institution that is not represented by a Member whic h is a party to the dispute. Beyond disrupting the
inter-governmental nature of the WTO dispute settle ment system, this may represent a burden that
cannot be met equally by all Members. Indeed , developing Members are likely to be the most
adversely affected by such decisions, since their more limited resources would have to be used not
only to address factual and legal claims and arguments made by other Members in a dispute, but also
by a potentially large number of other interested pa rties whose participation in proceedings was not
foreseen in the DSU.
10. The inclusion of this issue in the DSU Re view discussions is a recognition both of the
importance Members attach to the matter and that the special session of the DSB is the appropriate
forum for its consideration.
11. In the specific instance of this dispute, Brazil would suggest that the Panel only consider the
unsolicited letter if it is made part of a submission by one of the parties (as an exhibit, for example).
Such party would then have to respond for the cont ents of the brief and assume the responsibility of
making it part of its own case. This is an approach that would be the least disruptive and would still
allow for a substantive discussion of the unsolicited contribution.
12. In closing, Brazil thanks the Panel for the fu rther opportunity to present its views in this
dispute.

ANNEX C-7

THIRD PARTY ORAL STATEMENT OF CHINA
AT THE SECOND SUBSTANTIVE MEETING

1. Mr. Chairman, distinguished members of the Panel, China appreciates this opportunity to
present our opinion before you on this dispute. We refrain ourselves from making statement on the
merits of the case, and would like to comment briefly on the issue of amicus curiae briefs.
2. Amicus curiae brief is an old issue. During the Uruguay Round, some relevant proposals were
raised, negotiated and rejected. Similar proposals were again raised by a few Members during the
DSU review, but did not produce any consensus results. In the ongoing DSU negotiations, there are
great disagreements among Members on amicus curiae briefs. Some Members propose to explicitly
give panels and the Appellate Body the right to accept and consider unsolicited information and
advice provided that this information or advice is directly relevant to the factual and legal issues under
consideration. On the contrary, some other Members submitted textual proposals that would explicitly
prohibit panels and the Appellate Body to consider such information and advice.
3. In the practice of dispute settlement, the Appe llate Body found itself and the Panel had the
authority to accept so called amicus curiae briefs in some cases . These findings are based on the
assessment of the facts and cond itions in the specific cases, which would not directly bound the
Panels in other cases. For all this, members expr essed their strong concerns in the General Council
special meeting on 22 November 2000.
4. Article 13 of the DSU provides "each Panel sh all have the right to seek information and
technical advice from any individual or body whic h it deems appropriate". This provision literally
gives the Panel authority to seek information and t echnical advice, but does not grant individuals and
institutions outside the WTO the right to submit brie fs to be considered by the Panel. When it is
necessary to seek information in a dispute, the Panel could do on its own initiative. If the Panel
passively accepts amicus curiae briefs, it would possibly bring about injustice to the other
organizations who do not submit such kind of briefs and the Members who are not participants or
third parties to the dispute, and cause adverse e ffect on the fact finding. The great disagreements
among Members and the ongoing negotiation also i ndicate that there is no agreement among
Members on the acceptance of amicus curiae briefs.
5. China believes the issue of amicus curiae briefs has systemic influence in the dispute
settlement, and should be settled by negotiations among Members. China would like to advise the
Panel follow its terms of reference and function, interpret the relevant provisions in DSU according to
the customary rules of interpretation of public international law, ignore such amicus curiae briefs and
do not take them into consideration.

ANNEX C-8

EXECUTIVE SUMMARY OF THE
THIRD PARTY WRITTEN SUBMISSION OF COLOMBIA

I. INTRODUCTION
1. Colombia thanks the Panel and the Parties fo r this opportunity to present its views in the
present proceeding. Colombia interven es in this case given its systemic interest in the application of
several provisions of the WTO covered agreements discussed in this dispute.
2. While not taking a final position on the specific facts of this case, Colombia will provide its
views on some of the legal claims advanced by the Pa rties to the dispute. First, Colombia will address
the issue of whether an apparently voluntary meas ure can be deemed mandatory under the definition
of technical regulation provided for in Annex 1. 1 of the Agreement on Technical Barriers to Trade
(the "TBT Agreement"). Then, Colomb ia will comment on the definition of treatment no less
favourable in Articles 2.1 of the TBT Agreement and III:4 of the GATT. As a third issue, Colombia
will present its comments on the definition of the term legitimate objective, within the relevant
provisions of the WTO covered ag reements. Another issue that will be addressed by Colombia is
related to the scope of the Members obligations with respect to special and differential treatment to
developing countries, under Article 12 of the TBT Agreement. Finally, Colombia will close its
submission with some comments on the conditions that must be met for a claim under
Article XXIII:1(b) of the GATT. In virtue of the fo regoing, this document is divided in five sections
where each of the mentioned issues will be addressed.
II. THE MANDATORY CHARACTER OF TECHNICAL REGULATIONS
3. One of the complaining parties' claims is that the country of origin labelling measures (the
"COOL measures")
1, are technical regulations subject to the TBT Agreement. In response, the United
States of America (the "USA") claimed that Secretary Vilsack's letter is not a measure whose
compliance is mandatory, in the terms of Annex 1.1 of the TBT Agreement
2.
4. Under the definition of a technical regul ation as provided in Annex 1.1 of the
TBT Agreement, one of the elements of a technica l regulation is that its compliance is mandatory.
Regarding the interpretation of Annex 1.1 of the TBT Agreement, only one WTO Panel has directly
addressed the issue of how the term mandatory3 should be construed. That Panel concluded that a
measure can be deemed mandatory when it is obligatory as a consequence of a command.4
5. Given the limited amount of cases that have dealt with the interpretation of " with which
compliance is mandatory " under the definition of Annex 1.1 of the TBT Agreement, Colombia
submits to the Panel the question of whether it would be appropriate to analyze a measure's mandatory
character in order to determine if it is a technical regulation, pursuant to the standard of application
under Article XI:1 of the GATT. Hence, the Panel c ould take this opportunity to clarify if in any

1 In Mexico's first written submission, para. 9, Mexico lists the measures that it considers are part of the
COOL measures; and in Canada's first written submission, para. 1 footnote 1, Canada lists the measures that it
considers are part of the COOL meas ures. Both claiming parties agree that the letter that the Secretary of
Agriculture of the United States of America, Thomas J. Vilsack, sent to the representatives of the industry on
February 20 2009, is part of the COOL measures.
2 United States' first written submission, paras. 133-137.
3 The case was EC – Trademarks and Geographical Indications (Australia).
4 EC – Trademarks and Geographical Indications (Australia), para. 7.453.

given circumstances, the standard set forth in the GATT case Japan – Semi-conductors5 in relation to
a measure's mandatory nature pursuant to Article XI:1 of the GATT, would be useful to construe the
term "with which compliance is mandatory" in Annex 1.1 of the TBT Agreement. In consequence, the
Panel should conclude if Secretary Vilsack's letter is mandatory and thus a technical regulation.
III. LESS FAVOURABLE TREATMENT UNDER ARTICLES 2.1 OF THE
TBT AGREEMENT AND III:4 OF THE GATT 1994
6. The claimants allege that the COOL measures implemented by the USA are inconsistent with
Article 2.1 of the TBT Agreement, since such measures accord a less favourable treatment to the
feeder cattle from Canada and Mexico and the hog from Canada than that provided to the like
products from the USA. 6 In response, the USA claims that th e COOL measures provide an identical
treatment both to the feeder cattle and hogs from Canada and Mexico than the one provided to the like
products from the USA, given that the measures at issue require the same labelling conditions for
national and foreign products. 7 In this case, the USA holds that the COOL measures do not affect the
conditions of competition for the sale of these products, as well as the fact that such measures have no
direct adverse effect over trade. Therefore, the USA argues that the COOL measures are consistent
with Article 2.1 of the TBT Agreement.
7. Article 2.1 of the TBT Agreement, provides that technical regulations shall not accord
treatment less favourable to imported products than the one accorded to like imported products. Some
panels8 have analyzed the above mentioned provision, and have concluded that Article 2.1 of the
TBT Agreement should be interpreted in light of the principles set forth in Article III:4 of the
GATT 1994, given that the obligation not to accord a treatment less favourable has been understood
in the same sense in both provisions. Following what has been said by prior panels 9, Colombia recalls
that for there to be a breach of the national treatme nt obligation, the following aspects of the measure
at issue should be assessed: i) if it is a technical regulation; i) if it accords any differential treatment to
the domestic products with respect to the imported ones; iii) if the domestic products are like to the
imported ones; and iv) the effects that the differe ntial treatment have over the competitive conditions
between domestic and imported products.
8. Based on the foregoing, Colombia requests the Panel to determine whether the challenged
measures imply a less favourable treatment to im ported products in the USA market; and to what
extent, this means a modification of the comp etition conditions betwee n domestic and imported
products, in such a manner that suffices the st andard under which Articles III:4 of the GATT 1994
and 2.1 of the TBT Agreement could be breached.

5 GATT Panel Report in the case Japan – Semi-Conductors, para. 109.
6 Mexico's first written submission, paras. 268 – 269 y 217 – 232 (with respect to Article III:4 of the
GATT) and Canada's first written submission, paras. 86-154.
7 United States' first written submission, paras. 138-200.
and EC – Asbestos, para. 3.410.
9 EC – Trademarks and Geographical Indications (Australia) , para. 7.444. A similar analysis was
undertaken in the following cases with re spect to Article III:4 of the GATT 1994: EC – Asbestos , para. 3.410;
Canada – Autos, para. 6.231; US – Gasoline , para. 6.5. Appellate Body Report in the case of Korea – Various
Measures on Beef, para. 133.

IV. LEGITIMATE OBJECTIVES UNDER THE WTO COVERED AGREEMENTS
9. Canada and Mexico claim that the COOL me asures do not fulfil a legitimate objective under
article 2.2 of the TBT Agreement, since thei r purpose is not to pursue such an objective
10. The USA
claims that providing information to consumers is in itself a legitimate objective.11
10. According to Article 2.2 of the TBT Agreement, for there to be a breach of the Member's
obligations under such provision, it is necessary to analyze if the measure at issue is a technical
regulation adopted to fulfil a legitimate objective, and whether it has been implemented in a manner
that does not create unnecessary obstacles to trade. Th is kind of reasoning should be carried out in
light of the necessary measures to fulfil the le gitimate objective under Article 2.2 of the
TBT Agreement.
11. Colombia considers that in order to dete rmine what is a legitimate objective under the
definition of Article 2.2 of the TBT Agreement, th e Panel should take into account the relevant panel
and Appellate Body reports 12 and other WTO provisions 13, relative to the protection of Member's
central societal values.
V. MEMBERS' OBLIGATIONS TO PROV IDE SPECIAL AND DIFFERENTIAL
TREATMENT, ACCORDING TO ARTICLE 12 OF THE TBT AGREEMENT
12. Mexico submits14 that the COOL measures are contrary to the obligations of the USA under
Articles 12.1 and 12.3 of the TBT Agreement, si nce it did not take due account of its special
development, financial and trade needs as a de veloping country. In response the USA submits 15 that
Mexico did not satisfy the test of inconsiste ncy arising from Articles 12.1 and 12.3 of the
TBT Agreement.
13. Colombia considers that Article 12.1 of the TBT Agreement implies an obligation as such, 16
and that Article 12.3 of the TBT Agreement should be read in light of the provisions of Article 12.2 of
the TBT Agreement.17 In addition, it seems clear to Colomb ia that Article 12.2 places the burden of
proof on the Members that are developed countries. Therefore, the satisfaction of the burden of proof
is not up to the developing country that is alle ging the breach of a (developed country) Member's
obligations under Article 12. Instead, it is the de veloped country Member that has placed a potential
technical barrier to trade, the one who has to meet the burden of proving whether it has complied with
its obligations under Article 12 of the TBT Agreement, in particular, regarding its duties of taking into
account the special development, financial and trade needs of the developing countries.
14. Hence, the developed country implementing the measure: i) should prove that it took into
account the special development, financial and trad e needs of a developing country partner, when

10 Mexico's first written submission, paras. 276-302 and Canada's first written submission,
paras. 158-176.
11 United States' first written submission, paras. 226-233.
12 Panel Report in EC – Sardines, para. 7.118, this position was confirmed by the Appellate Body in its
report on the same case EC – Sardines (Appellate Body Report), para. 286; Panel Report in EC – Sardines ,
paras. 7.120 and 7.121.
13 Articles XX of the GATT 1994, XIV of the GATS, 17 and 30 of the TRIPS Agreement. Also see:
Panel Report in Canada – Pharmaceutical Patents , para. 7.69 and Panel Report in EC – Trademarks and
Geographical Indications (Australia), paras. 7.662 and 7.663.
14 Mexico's first written submission, paras. 359-373.
15 United States' first written submission, paras. 271-277.
16 EC – Approval and Marketing of Biotech Products, para. 74.7 sub 75.
17 Panel Report, EC – Approval and Marketing of Biotech Products, para. 74.7 sub 77.

adopting a measure with the potential of affecting bila teral trade; and ii) is obliged to prove its due
diligence with respect to special an differential treatment, when adopting technical regulations,
standards and conformity procedures.
15. In view of the foregoing comments, Colombia kindly requests the Panel to complete the
standard set forth by other panels, regarding the extent of the members' special and differential
treatment obligations, in accordance to Article 12 of the TBT Agreement.
VI. CLAIMS UNDER ARTICLE XXIII:1(B) OF THE GATT 1994
16. The claiming parties hold that the COOL measures nullify and impair the advantages derived
from the tariff concessions granted by the USA to them on feeder cattle and hogs, as a result of the
negotiations of the Uruguay Round 18. Thus, the measures at issue are inconsistent with
Article XXIII:1(b) of the GATT 1994. Based on the report of the Appellate Body in the case EC –
Asbestos, the USA holds that recourse to Article XXIII:1(b) of the GATT should be done in a
cautious and exceptional manner.19 Moreover, the USA focuses its assess ment in the lack of evidence
presented by the claiming parties in relation to thei r claim of nullification and impairment pursuant to
Article XXIII:1(b) of GATT 1994.20
17. There have been few claims under Article XXIII:1(b), both under the GATT 1947 as under
the WTO. Only eight cases were considered by working groups as well as panels under GATT 1947.21
In two of those cases, the panels found that the n on-violation complaint was justified, but the report
was not adopted. 22 In three cases, the non-violation complaints were rejected. 23 Only in three cases
the non-violation complaints were accepted and adopted. 24 Since the establishment of the WTO, only
four cases have dealt with non violation claims. 25 These cases have identified some requirements for
claims under Article XXIII:1(b) of the GATT 1994: non-violation complaints must be exceptional 26,
there has to be an application of a measure by a Member, 27 there must be a benefit accruing under the
relevant agreement,28 and there must be a nullification or impa irment of that benefit as a result of the
application of the measure at issue29.
18. In order to undertake a complete assessment of the claims advanced by the complaining
parties and the responding party reply, the Panel in this case should examine the de iure and de facto
evidence presented by the Parties wi th respect to the COOL measures in light of the elements of
nullification or impairment without violation c onstrued from the different cases under the GATT and
the WTO.

18 Mexico's first written submission, para. 379 and Canada's first written submission, paras. 234-235.
19 Appellate Body Report EC – Asbestos, para. 186.
20 United States' first written submission, paras. 305-316.
21 Australia – Subsidy on Ammonium Sulphate ; Germany – Sardines ; Uruguayan Recourse; EEC –
Citrus Products; EEC – Canned Fruit; Japan – Semi-Conductors; EEC – Oilseeds I; and US – Sugar Waiver.
22 EEC – Citrus Products and EEC – Canned Fruit.
23 Uruguayan Recourse; Japan – Semi-Conductors; and United States – Sugar Waiver.
24 Australia – Subsidy on Ammonium Sulphate; Germany – Sardines; and EEC – Oilseeds I.
25 Japan – Film; EC – Computer Equipment; Korea – Procurement; and EC – Asbestos.
26 Japan – Film, para. 10.36.
27 Japan – Film, para. 10.43.
28 Japan – Film, paras. 10.61, 10.71-10.74, 10.77, and 10.79-10.81.
29 Japan – Film, paras. 10.41 and 10.83.

VII. CONCLUSION
19. Colombia considers that this case raises impor tant questions on the interpretation of Articles
III:4 of the GATT 1994, various provisions of the TBT Agreement as well as Article XXIII:1(b) of
the GATT 1994. While not taking a final position on th e merits of the case, Colombia requests this
Panel to carefully review the scope of the claims in light of the observations made in its submission.
Colombia reserves its right to make further comment s at the third party session of the first substantive
meeting with the Panel.

ANNEX C-9

THIRD PARTY ORAL STATEMENT OF COLOMBIA
AT THE FIRST SUBSTANTIVE MEETING

I. INTRODUCTION
1. Mr. Chairman, distinguished Members of the Panel, on behalf of the Government of
Colombia, I thank you for giving us the opportunity to express our views in this dispute.
2. Our participation as a third party is based on our systemic interest in the proper interpretation
of several provisions of the WTO covered agreem ents, discussed in this case. In its written
submission, Colombia set out its understanding of some of the major legal issues arising from this
dispute. I will therefore not repeat all the conten t of the submission, but will rather focus on a few
specific comments regarding the interpretation of th e obligations of special and differential treatment
under Article 12 of the TBT Agreement and the necessity requirement under Article 2.2 of the
TBT Agreement.
3. Colombia recognizes that many of the issues in this dispute are factual in nature. In that
regard, Colombia would like to emphasize that it does not take a position as to whether the USA has
or has not complied with its obligations under the TBT Agreement.
II. SPECIAL AND DIFFERENTIAL TREATMENT TO DEVELOPING COUNTRIES
4. Mexico submits that the COOL measures are c ontrary to the obligations of the USA under
Articles 12.1 and 12.3 of the TBT Agreement, since th e latter did not take due account of the former's
special development, financial and trade needs as a developing country. In response, the USA submits
that Mexico did not satisfy the test of incons istency arising from Articles 12.1 and 12.3 of the
TBT Agreement.
5. Following the reasoning of the Panel in EC – Approval and Marketing of Biotech Products 1,
Colombia considers that Article 12.1 of the TBT Agreement implies, in itself, the obligation to
provide developing country Memb ers differential and more favourable treatment with respect to
measures subject to the TBT Agreement.
6. In addition, Colombia considers that Article 12.3 of the TBT Agreement should be read in
light of the provisions of Article 12.2 of the TBT Agreement. 2 Therefore, it seems clear to Colombia
that Article 12.2 places the burden of proof, with resp ect to the obligation to take due account of the
special development, financial and trade needs of developing country Members, on the developed
country Member imposing the potential technical regulation.
7. Hence, the developed country implementing the measure: i) should prove that it took into
account the special development, financial and trad e needs of a developing country partner, when
adopting a measure potentially affecting bilateral tr ade; and ii) is obliged to prove its due diligence
with respect to special and differential treatment to developing country Members, when adopting
technical regulations, standards and conformity procedures.

1 Panel Report, EC – Approval and Marketing of Biotech Products, para. 74.7 sub 75.
2 Panel Report, EC – Approval and Marketing of Biotech Products, para. 74.7 sub 77.

8. In view of the foregoing comments, Colombia kindly requests the Panel to complete the
standard set forth by other panels, regarding the extent of the Members' special and differential
treatment obligations, in accordance with Article 12 of the TBT Agreement.
III. NECESSITY TEST UNDER ARTICLE 2.2 OF THE TBT AGREEMENT
9. Canada and Mexico claim that the COOL measu res do not pursue a legitimate objective, but
in case they were considered to do so, such measures are more trade restrictive than necessary to fulfil
the legitimate objective, taking account the risk non-fulfilment would create. The USA responds by
arguing that the COOL measures are not more trade restrictive than necessary under Article 2.2 of the
TBT Agreement.
10. The debate regarding the necessity of a measure, in light of its trade restrictiveness and the
risk of non-fulfilment has not been directly dealt with in WTO disputes. In Colombia's view, this
represents an opportunity for this Panel to contribute to the analysis of the standard that must be
followed under Articles 2.2 and 12.3 of the TBT Agreement, in order to conclude if a measure is more
trade restrictive than necessary to fulfil the legitimate objective pursued in light of the risks of non-
fulfilment.
11. Colombia submits that Article 2.2 of the TBT Agreement entails a necessity test of the
measure according to its trade restrictiveness, which should be weighed with respect to the risk that
non-fulfilment would create. Hence, for there to find a breach of Article 2.2, the Panel should
determine that the measure at issue is more trade restrictive than necessary, and that not complying
with such a measure does not pose a risk to the pr otection of the legitimate objective pursued. This
also requires the demonstration that the objective pursued by the measure is a legitimate one.
12. In Colombia's view, the necessity test under the TBT provisions mentioned above should be
construed taking into account the necessity test used by several Panels and the Appellate Body in
cases involving the application of Articles XX:(b) and XX:(d) of the GATT 1994. Additionally,
Colombia calls the attention of the Panel to the crucial role of a necessity test in weighing the trade
restrictiveness of a measure and the policy goals pursued by Members' through their national
regulations. Thus, Colombia considers that this type of test can provide transparent and clear
elements, for the compatibility analysis of natio nal measures with various provisions of the WTO
covered agreements. For example, SPS Agreement Article 5.6 and GATS Article VI.4 both provide
for necessity tests. However, only the former has been analyzed by WTO panels and the Appellate
Body.
13. As established by the Appellate Body in th e case of EC- Asbestos, a measure would be
deemed necessary under Article XX(b) of the GATT 1994, if there are no more GATT consistent
reasonable alternatives available for the Member implementing the measure. The Appellate Body
followed this same line of thought when applying Article XX(d) of the GATT in the case of Korea –
Various Measures on Beef.
14. Colombia respectfully requests the Panel to c onstrue a clear necessity test for the proper
application of Articles 2.2 and 12.3 of the TBT Agreement by the Members.
15. The Panel could take the aforementioned analysis as a reference to determine when a measure
is more trade restrictive than necessary. In that sense, and as proposed by the complaining parties, the
Panel could use as an element of the necessity t est under Article 2.2 of the TBT Agreement the
reasonably available alternatives approach.

16. On the other hand, Colombia also invites the Pa nel to clarify the sense in which the risks of
non-fulfilment should be weighed with respect to the trade restrictiveness of the measure.
17. This is of great relevance, since notwithsta nding the pre-eminent protection of the Members'
right to exercise their sovereignty over their te rritory; Members are also called to respect their
international obligations under the covered agreements. This balance is usually clear, but there are
cases like the ones referred to above in which the di spute settlement system can achieve its objective
pursuant to the DSU to provide security and predictability to the multilateral trading system.
18. Mr. Chairman, distinguished Members of the Pa nel, with these comments, Colombia expects
to contribute to the legal debate of the parties in this case, and would like to express again its
appreciation for this opportunity to share its points of view on this relevant debate, regarding the
application of Articles 12.1, 12.3 and 2.2 of th e TBT Agreement. We thank you for your kind
attention and remain at your disposal for any question you may have, including as requested on
Colombia's mandatory country of origin labelling provisions.

ANNEX C-10

THIRD PARTY ORAL STATEMENT OF COLOMBIA
AT THE SECOND SUBSTANTIVE MEETING

1. Mr. Chairman, distinguished Members of the Panel, on behalf of the Government of
Colombia, I thank you for giving us the opportunity to express our views in this dispute.
2. This case has raised a legal debate on the conf ormity of country of origin labelling (the
"COOL") requirements with the Agreement on Techni cal Barriers to Trade (the "TBT Agreement")
and the WTO covered agreements in general.
3. It is Colombia's view that COOL requirement s are not, as such, contrary to WTO Members'
obligations under the covered agreem ents. Rather, Colombia invites th e Panel to consider that the
conformity assessment of the COOL measures adopted by the United States has to be done in light of
the particular circumstances of the present dispute.
4. As has been mentioned by Colombia both in its written submission and its oral statement in
the first session, this case is an opportunity for th e Panel to clarify several issues related to the
TBT Agreement.
5. In particular, Colombia recalls the importance of this case for the following issues: defining
how to construe if a measure is mandatory for the purposes of the definition of a technical regulation;
the way in which a measure applied to a pro cessed good (i.e. beef) can render a treatment less
favourable to the conditions of sale of a non-processe d good (i.e. cattle); the definition of a legitimate
objective under Article 2.2 of the TBT Agreement; the application of a necessity test under Article 2.2
of the TBT Agreement; the scope of application of the obligations of special and differential treatment
under Article 12 of the TBT Agreement; and the conditi ons for claims of nullification and impairment
under Article XXIII:1(b) of the GATT 1994.
6. In addition, Colombia would like to make a br ief comment on the issue of the acceptance of
certain amicus curiae writing. In line with what has been sai d by several panel and Appellate Body
reports, Colombia considers that it is a decision of the Panel to accept or not such writing. However,
when taking such decision, the Panel must ensure that the right of de fence, in the context of the due
process, is not impaired in any way through the Panel's decision on the matter.
7. Mr. Chairman, distinguished Members of the Pane l, Colombia expects that the report of the
Panel in this case will contribute to the security an d predictability of the multilateral trading system,
by clarifying the legal issues involved in the present dispute. We will be pleased to answer any
questions from the Panel.

ANNEX C-11

EXECUTIVE SUMMARY OF THE
THIRD PARTY WRITTEN SUBMISSION OF THE EUROPEAN UNION

I. THE MEASURE OR MEASURES AT ISSUE
1. Pending a response from Canada and Mexico with respect to these US arguments, the
European Union observes that a complaining Memb er has a certain discretion when it comes to
identifying what it considers to be the "measure at issue". In particular, faced with more than one
document, a complaining Member may identify each doc ument as a measure at issue; or may identify
the documents together as a measure at issue; or may argue that the documents are evidence of an
unwritten measure. This discretion, like any discreti on, is not entirely unfettered, although precisely
why Canada and/or Mexico might have exceeded the bounds of their discretion in this case is not yet
entirely clear to the European Union.
2. Insofar as the 2008 Interim Final Rule has not b een in force since 16 March 2009, that is,
prior to the panel requests on 7 and 9 October 2009 , then the European Union would not normally
expect it to constitute a measure at issue, or pa rt of a measure at issue. However, it might still
constitute evidence of facts that the complaining Members might consider relevant to their cases.
II. ANNEX 1, PARAGRAPH 1 OF THE TBT AGREEMENT: DEFINITION OF
"TECHNICAL REGULATION"
3. Referring to past cases, the European Union concludes that, whilst the Appellate Body has not
been called upon to deal with a case con cerning origin labelling, the panel in EC – Trademarks and
Geographical Indications was confronted with such an issue. Fu rthermore, with respect to this issue,
the approach of the panel in EC – Trademarks and Geographical Indications was consistent with the
approach of the Appellate Body in the Asbestos and Sardines cases when it comes to interpreting and
applying Annex 1, paragraph 1 of the TBT Agreem ent. That approach in volves interpreting the
second sentence of Annex 1, paragraph 1 as setting out examples, and reasoning that if one example is
present then the document is a technical regulation. The particular example in this case is "labelling
requirements". Thus, the reasoning is that if a document includes "labelling requirements" (and the
other requirements of Annex 1, paragraph 1 are met), then the document is a technical regulation. The
further reasoning is that the second sentence of Annex 1, paragraph 1 does not limit the term
"labelling requirements" by reference to the substantiv e content of the label. It requires only that the
"labelling requirements" "apply" to a "produc t, process or production method". Consequently,
according to this line of reasoning, there is no need to consider whether or not "origin" is a "product
characteristic" within the meaning of the first sen tence of Annex 1, paragraph 1. If there is a
requirement that the product bear a label stating th e origin of the product, then the measure is a
technical regulation. The European Union would concl ude that if this Panel follows the approach of
the panel in EC – Trademarks and Geographical Indications (specifically with respect to origin
labelling) and the approach of the Appellate Body in the Asbestos and Sardines cases then it would
conclude that the measure is a technical regulation. That being said, the specific issue raised in this
case has not previously been directly considered , and the European Union reserves its further
observations pending additional clarifications from the Parties.
4. One might also observe that perhaps the question of whether or not the measure is a technical
regulation within the meaning of the TBT Agreem ent may not be critical to the outcome of the
assessment, at least in this particular case. One mi ght think that whether one conducts the assessment
through the prism of Article III:4 (especially when dealing with an in fact claim as in the present case)

and the general exceptions in Article XX of the GATT 1994; or the through the prism of Articles 2.1
and 2.2 of the TBT Agreement, the outcome should be broadly similar or the same.
5. With respect to the Vilsack Letter and the s ubsequent press statement, the European Union
observes that the assessment may be different depending upon whether one assesses those documents
in isolation, or whether one assesses them togeth er with other documents cited by Canada and
Mexico. For example, it is possible that documents are not in themselves mandatory, but nevertheless
might be relevant for a domestic court's interpre tation and application of other measures that are
mandatory. In the latter case, it would not necessarily be correct to conclude that the non-mandatory
documents would be irrelevant to a panel's assess ment under the TBT Agreement. Since this is to
some extent a question of the domestic law of th e United States, the European Union reserves its
further comments pending additional clarifications from the Parties.
III. ARTICLE 2.1 OF THE TBT AGREEMENT: TREATMENT NO LESS
FAVOURABLE TO LIKE PRODUCTS OF NATIONAL ORIGIN
A. L
IKE PRODUCTS
6. The European Union agrees with Canada and Me xico that in interpreting and applying the
term "like products" in Article 2.1 of the TBT Agreement it is appropriate to have regard to the way in
which the term "like products" in Article III:4 of the GATT 1994 has been interpreted and applied.
The treaty terms are obviously the same. Furthermore, the GATT 1994 and the TBT Agreement are
each context for the interpretation of the other. Finally, the second recital of the TBT Agreement
refers to the desire to further the objectives of the GATT 1994, so the object and purpose of the
TBT Agreement would appear to be co-extensive with or at least limited by the object and purpose of
the GATT 1994.
B. T
REATMENT NO LESS FAVOURABLE
7. For the reasons indicated above, the European Un ion agrees with Canada and Mexico that in
interpreting and applying the term "no less favourab le" in Article 2.1 of the TBT Agreement it is
appropriate to have regard to the way in which the same term in Article III:4 of the GATT 1994 has
been interpreted and applied.
8. Canada and Mexico would appear to acknowledge that the measure does not explicitly require
less favourable treatment for imports. Nevertheless, Canada and Mexico argue that the measure has
that effect. In other words, Canada's and Mexico's case is not an "in law" case but rather an "in fact"
case. The difference between an in law case and an in fact case is not the standard, but the evidence.
In an in law case the evidence is th e text of the measure itself. In an in fact case the text of the
measure is not adduced or does not expressly provi de for less favourable treatment. However, other
evidence is adduced to support factual assertions, a nd the complaining Member explains how such
facts and other evidence, working together in r easoned and logical ways, demonstrates the existence
and precise content of a measure inconsistent with the relevant standard. This is a high threshold and a
difficult task, requiring the exercise of particular rigour, and not a result to be lightly assumed.
9. That a measure may have an adverse effect on tr ade is not in itself enough to establish that it
is WTO inconsistent. All regulator y measures by definition at least potentially affect different firms
differently, even if they produce like products, both within the regulating Member and as between the
regulating Member and other Members. Neither the GATT 1994 nor the TBT Agreement set out to
eliminate regulatory diversity in itself. Just b ecause a new regulation disrupts existing trade flows or
structures does not necessarily mean that there is less favourable treatment of imports.

10. In this context, notions of intent need to be approached with caution. The contested measure
may have an object and purpose either expressly stat ed or objectively apparent from its overall design
and architecture, and that may be relevant to unde rstanding how the measure is to be interpreted and
applied in particular cases, which may in turn be re levant to understanding whether or not there is less
favourable treatment. However, the assessment ca nnot usefully focus on the subjectively deemed
"intent" of unspecified persons connected in some way with the adoption or application of the
measure.
11. In such an assessment an adjudicator will re ference the framework of Article III:4 of the
GATT 1994 and any relevant provisions of Article XX of the GATT 1994. Similarly, an adjudicator
may reference both Article 2.1 of the TBT Agreemen t (which Canada and Mexico would appear to
agree echoes Article III:4 of the GATT 1994) and Ar ticle 2.2 of the TBT Agreement (which Canada
and Mexico would appear to agree echoes Article XX of the GATT 1994) – although the European
Union is not suggesting that the relationships be tween these different provisions are necessarily the
same.
12. Turning to the substantive point of dispute, without prejudice to the development of our
position concerning the interpretation of the definitio n of "technical regulation", and recognizing that
these observations may relate to some extent to bot h Article 2.1 and 2.2 of the TBT Agreement, the
European Union considers that the provision of info rmation to consumers about origin may, in itself,
generally be a legitimate objective within the mean ing of Article 2.2 of the TBT Agreement. In
particular, mandatory origin rules and declarations (as distinct from labelling) may be required to
ensure that the correct customs duties are applied, including in order to permit distinctions between
goods subject to different tariffs. The European Union recognizes that origin labelling might also
facilitate choices by consumers. De pending upon one's perspective, one might consider some of these
choices to be rational and in harmony with the WTO agreements, or one might consider some of these
choices to be irrational or economically inefficien t. For example, choices might reflect actual or
perceived risk associated with food from a partic ular region or Member; or actual or perceived
positive qualities of food from a particular region or Member; or ethical considerations about a
particular region or Member; or a desire to foster sustainable development in a particular region or
Member; or a desire to economically support a regi onal or domestic industry; or considerations of
taste and personal judgment. One cannot hope to have perfect information about why such choices are
made – that is the whole point of the label – it empowers the consumer.
13. The European Union might have an issue with measures adopted by a Member that would
initiate, encourage or amplify such choices in a manne r that would be inconsistent with the covered
agreements. However, the European Union does not c onsider that the covered agreements set out to
preclude origin labelling in itself, nor the making of such choices by consumers, nor that they could
hope to do so effectively in the long term. If it is tr ue that one of the basic objectives of the WTO is to
facilitate the operation of market forces in the gl obal economy, it is equally true that consumers are
the market, it being up to firms to persuade cons umers to prefer their products. One could hardly
imagine firms being precluded from identifying products as th eir own. From this perspective, origin
labelling may not be obstructing market forces, but facilitating their operation.
14. The essential difference between voluntary and ma ndatory labelling is that an individual
consumer in a supermarket is hardly in a positi on to demand labelling with respect to particular
information. They are only able to do that through organisation, notably through their domestic
political processes. Thus, if a domestic political proc ess leads to mandatory origin labelling, that may
reasonably be taken as an indication that consumers wa nt it, so that they are in a position to make the
kinds of choices outlined above.

15. With these observations in mind, the European Union has not yet fully understood, based on
Canada's and Mexico's First Written Submissions, how the facts and evidence are said to work
together in specific and logical ways in order to demonstrate less favourable treatment. As indicated
above, the European Union considers that origin la belling may be generally legitimate. The European
Union also considers that in some cases, and par ticularly where relevant economic activity straddles
borders, rules may be necessary to determine the orig in of a product – and the Agreement on Rules of
Origin sets out WTO rules that relate to that ma tter. The European Union has not yet understood why
it might be that a rule of origin based on sp ecific production points would necessarily be WTO
inconsistent. Nor has the European Union understood why it might be that, if such rules of origin
would be WTO consistent, requiring labelling on that same basis would necessarily be WTO
inconsistent. This being so, the European Uni on has not yet understood why the less restrictive
labelling rules in the measure are necessarily WTO inconsistent.
16. Similarly, the European Union has not yet understood, for example, the following matters:
why the rules preclude the existence or the coming into existence of slaughter houses that deal only
with cattle and hogs born in Canada or Mexico but raised and slaughtered in the United States; why, if
the rules disfavour mixed activities, they necessarily tip slaughterhouses back to pure US meat based
activity and never to pure Canadian or Mexican meat based activity; and why it is impossible to pass
any of the additional costs to US meat producers or US consumers. With respect to Canada's tables
showing US imports as a proportion of domestic pr oduction, the European Union would have been
interested to see those numbers placed in the cont ext of all imported US products, in order to see
whether or not the products subject to the measure ar e all grouped at the top of such a list. Finally, the
European Union has not yet understood how, if the Pa nel were to agree with Canada and Mexico, one
could avoid the conclusion that all mandatory orig in labelling would be WTO inconsistent, or how
one could objectively distinguish, with security and predictability, between those measures that would
be WTO consistent and those that would be WTO inconsistent.
IV. ARTICLE 2.2 OF THE TBT AGREEMENT: UNNECESSARY OBSTACLES TO
INTERNATIONAL TRADE – NOT MORE TRADE RESTRICTIVE THAN
NECESSARY
17. The European Union does not agree with Canada that merely demonstrating that the objective
of a technical regulation is not "legitimate" is suffi cient to support a finding of inconsistency with
Article 2.2 of the TBT Agreement. For example, if su ch a regulation would not be restrictive of trade,
then it would not be inconsiste nt with Article 2.2 – although this example may be relatively
hypothetical. Similarly, the European Union does no t agree with Canada that merely demonstrating
that a technical regulation fails to fulfil its objectiv e is sufficient to support a finding of inconsistency
with Article 2.2 of the TBT Agreement. The Europ ean Union would invite the Panel to interpret and
apply the treaty text in Article 2.2 directly, rather than paraphrasing it in the terms set out by Canada.
18. The European Union observes that the second sen tence of Article 2.2 of the TBT Agreement
begins with the phrase "For this purpose". The Eur opean Union understands the "purpose" referred to
here to be the purpose indicated in the first senten ce of Article 2.2. That purpose is to ensure that
technical regulations are not prepared, adopted or app lied with a view to or w ith the effect of creating
unnecessary obstacles to international trade. The European Union therefore sees a connection between
the first and second sentences. Thus, the European Un ion considers that the focus of the assessment
should be on whether or not the technical regulati on is more restrictive than necessary to fulfil the
legitimate objective, taking into account the risk th at non-fulfilment would create. This confirms the
view that merely demonstrating that the objective of the measure is protectionism is not sufficient to
establish an inconsistency with Article 2.2 of the TBT Agreement.

19. With respect to Canada's argument that the measure does not fulfil its purported objective, the
European Union has not yet understood how the ex istence of some approximate elements in the
measure would necessarily support a finding of inconsis tency. With respect to voluntary labelling, the
European Union has not yet understood how US consumers would pay for such costs, in light of
Canada's explanations that in practice no such cost s would be born by US meat. Finally, with respect
to "substantial transformation", the European Union has not yet understood to what extent Canada and
Mexico are advocating for a change in origin rules, as opposed to a change in labelling requirements.
V. ARTICLE 2.4 OF THE TBT AGREEMENT: FAILURE TO BASE THE MEASURE
ON AN INTERNATIONAL STANDARD (MEXICO ONLY)
20. The European Union has not yet understood to what extent Mexico is advocating for a change
in origin rules, as opposed to a change in labelling requirements. Aside from that, the European Union
has not yet understood how labelling processed meat as of US origin would inform consumers about
the origin of the animal from which such meat was obtained.
VI. ARTICLE III:4 OF THE GATT 1994: LE SS FAVOURABLE TREATMENT THAN
LIKE PRODUCTS OF NATIONAL ORIGIN
21. The observations of the European Union with respect to Article III:4 of the GATT 1994 are in
essence an analogue of its prior observations.

ANNEX C-12

EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT
OF THE EUROPEAN UNION AT THE FIRST SUBSTANTIVE MEETING

I. THE VILSACK LETTER
1. One point on which we would like to comment further is the Vilsack Letter, which has
attracted a certain amount of interest from the Third Parties. There seems to be a reasonable consensus
that this is a measure for the purposes of these procee dings, and one that is imputable to the US. That
said, although the US may be responsible for the content of the Vilsack Letter and may have to
account for it to this Panel, as far as the EU is able to ascertain, the procedures for its adoption and its
status as a matter of US domestic law may be different from those relevant to US statute or regulation.
On the face of the document, it appears to have been issued only under the authority of the Secretary
for the US Department of Agriculture. Thus, it rema ins unclear to the EU whether or not the balance
struck between the various competing interests is the same in the 2008 Farm Bill and the Final Rule
on the one hand, and the Vilsack Letter on the other hand.
2. In its Oral Statement the US describes the st atute as the product of "a long and thoughtful
legislative process" and the Final Rule as the resu lt of "an equally deliberative regulatory process".
The US informs us that "in crafting these rules" the US made "substantial efforts" "to strike the right
balance", "formally soliciting input … on at least four occasions". Are these statements equally true,
we wonder, of the Vilsack Letter? And Mr. Chairman we are particularly reflecting on this issue from
the point of view of Article 12.3 of the TBT Agr eement, which relates to special and differential
treatment for developing countries, and which we ag ree is an important provision. It states that
Members shall, in the preparation and application of technical regulations, standards and conformity
assessment procedures, take account of the special development, financial and trade needs of
developing country Members, with a view to ensuri ng that such technical regulations, standards and
conformity assessment procedures to not create unnecessary obstacles to exports from developing
country Members. In particular, we are reflecti ng on whether or not the Vilsack Letter should be
considered to be consistent with Article 12.3.
3. Disagreement remains, however, on the question of whether or not the Vilsack Letter is
"mandatory" for the purposes of the TBT Agreement. We have two comments on that issue. First, it is
not entirely clear to the EU that the answer to th at question would necessarily be determinative for the
case, given the legal framework that is also av ailable under the GATT 1994 (although it might be if
Article 2.2 of the TBT Agreement were to become the focus of the Panel's assessment). Second,
reviewing the content of the Vilsack Letter, there wo uld appear to be two types of statement that are
interwoven. One type of statement is the suggestion that it may be necessary to modify the Final Rule
if the suggested voluntary steps are not taken – and it is this on which the Third Parties have tended to
focus. However, the second type of statement would rather appear to relate to the implementation,
interpretation and/or application of th e Final Rule as currently drafted. Just to illustrate this with one
example, the first paragraph of the Vilsack Letter st ates that the Final Rule is "important to providing
consumers with additional inform ation about the source of food pr oducts and to helping producers
differentiate their products." This appears to be a statement about the object and purpose of the Final
Rule. The EU is not in a position to express a vi ew on whether or not such statement duplicates,
broadens or narrows the object and purpose as it would result from an examination of the Final Rule.
However, and this is the important point, we cannot rule out the possibility that the Vilsack Letter
might be also relevant to the interpretation or application of the Final Rule, as a matter of US domestic
law. And Mr. Chairman, the precedent that we have in mind is the US Statement of Administrative
Action, a measure that accompanied the adop tion of the US Uruguay Round Agreements Act

(URAA), implementing the WTO Agreement in the US. The Statement of Administrative Action it
not "mandatory" in US domestic law, but is re levant, as a matter of US domestic law, to the
interpretation and application of the URAA in the US jurisdiction. The US Statement of
Administrative Action has been referenced in past WTO disputes.
4. As we have indicated in our written submission, if this would be the case, we could not rule
out the possibility that the measure at issue consists of the Final Rule and the Vilsack Letter taken
together, or the possibility that these two documents together evidence the measure at issue. If that
were the case, it may be that these two documents form an indivisible package that is the measure at
issue, and from which it might not be possible to extr act the threat of modification of the Final Rule.
Considered as a whole, it may be that this packag e could be construed as mandatory within the terms
of the TBT Agreement. In short, if the Vilsack Le tter is, in effect, leveraging the Final Rule, then,
from a WTO compliance point of view, would it be entirely inappropriate if the nullification or
impairment associated with the Final Rule would le verage the Vilsack Letter (in the event that it
would be WTO inconsistent), at least until the V ilsack Letter would be wit hdrawn? After all, one
good turn deserves another. The EU does not express a view on whether or not this is in fact the case,
that being a matter for the Panel.
5. And Mr. Chairman, there is one treaty term in Article 2.2 of the TBT Agreement to which we
would like to draw your particular attention, and that is the term "prepared". Thus, it appears that
some obligations in the TBT Agreement might also apply to the preparation of technical regulations.
We are reflecting on how the term "mandatory" might be interpreted and app lied having regard to the
context of the use of the term "prepared", and particularly whether or not issues regarding the
preparation of what is destined to be a mandatory measure might or might not be subject to disciplines
in the TBT Agreement. We are reflecting whether the Vilsack Letter might be considered to fall with
the concept of preparation.
II. SUBJECTIVE INTENT DISTINGUISHED FROM THE EXPRESS OR IMPLIED
OBJECT AND PURPOSE OF THE MEASURE AT ISSUE
6. The second point on which we would like to comm ent relates to a matter already touched on
in our written submission, and also the subject of comments from the other Third Parties. It is the
distinction between the notion of subjective intent on the one hand, and the objective notion of the
object and purpose of the measure at issue, as it results from the terms of that measure (such as its
preamble) or from its overall design and architecture. For the EU, in an "in fact" assessment, there is
no fact or piece of evidence that is excluded as a ma tter of principle from the analysis. Of course, to
be of any interest or value, the complaining party will have to explain how such fact or evidence is
relevant to the assessment. That is, how, when taken toge ther with other facts or evidence, it permits
further factual inferences, leading to the conclusi on that the complaining Member has demonstrated
the existence and precise content of a WTO inconsistent measure.
7. From this perspective, the EU would not n ecessarily seek to exclude from the assessment as a
matter of principle factual assertions or evidence that relate to the alleged subjective state of mind (or
intent) of a particular natural person associated in some way with the legislative process. However, it
remains far less clear to the EU how such factua l assertion or evidence would be relevant to the
assessment. There may be many natural persons associated in some degree with a legislative
procedure, and it appears highly problematic to the EU to accord any substantial weight, or indeed
any weight at all, to assertions about their alleged state of mind at some point in the process. On the
other hand, the EU does consider that as part of its assessment it may well be very important for a
panel to consider the objective concept of the object and purpose of the measure at issue. The
Appellate Body has correctly confirmed that the meaning of a measure at issue is a question of law,
even if the existence and content of a document addressing such meaning is a question of fact. In

considering what is the meaning of a measure at issue, a panel will need to look to the rules of
interpretation and other relevant legal rules applicab le in the domestic jurisdiction (as opposed to the
rules of interpretation applicable in WTO dispute settlement). However, the EU finds it difficult to
conceive of a system of interpretation in which object and purpose has no role whatsoever. Thus, the
object and purpose of the measure at issue is a matt er that it is legitimate or even necessary for the
Panel to consider. It will form part of the overa ll framework that will allow the Panel to correctly
ascertain how the measure at issue is interpreted and applied (and thus also what effects it may have).
This is an appropriate and even necessary part of considering any "in fact" claim.
III. LEGISLATIVE HISTORY OR PREPARATORY WORK
8. The third related point on which we would like to comment concerns the legislative history or
preparatory work of the measure at issue, to which some of the other Third Parties have also referred.
Similar observations apply. Such considerations might be relevant to understanding how the measure
at issue is to be interpreted and applied, and should be approached from the perspective of the
interpretative rules applicable in the domestic juri sdiction (as opposed to the WTO, recalling that the
Vienna Convention refers to preparatory work as a supplemen tary means of interpretation). That said,
preparatory work is often something of a two edged sword: does the meaning apparent from the
preparatory work confirm the meaning apparent from the final text; or disprove it? Furthermore, as
indicated above, insofar as the documents referenced merely speak to the intent of particular natural
persons at a particular time, they may be of limited if any value to the assessment.
IV. THE 60 DAY FLEXIBILITY AND FULFILMENT OF THE LEGITIMATE
OBJECTIVE
9. The fourth point on which we would like to comment relates to the 60 day flexibility provided
for in the Final Rule for ground meat, and the ob servations by the compla ining Members and some
Third Parties that this confirms that the measure at issue does not fulfil its stated objective. The EU –
like the US – is somewhat puzzled by this line of argument. It seem s to us that the objective of the
measure might fairly be stated to be informing consumers whilst at the same time avoiding
unnecessary costs for importers . Furthermore, it appears to the EU that the 60 day flexibility is an
aspect of the measure that is designed to reasona bly accommodate the interests of importers. For the
importers to attack it appears both to ignore the mixed nature of the measure's objectives, and to be at
least potentially counter-productive.
V. ALTERNATIVE PROPOSED MEASURE: DOMESTIC AND IMPORTED
10. The next point on which we would like to comment relates to an alternative measure proposed
by some of the other third parties. The EU is not at this stage persuaded by the proposal of a measure
that would merely distinguish between domestic and imported products. It seems to us that this would
only risk to further disconnect consumer choice s from rational and potentially WTO consistent
considerations. It would seem to exacerbate and accentuate the nature of the problem, driving
consumers only towards domestic production, without regard to the relative merits or disadvantages
of meat imported from various other countries, appropriately differentiated.
VI. LABEL B FOR LABEL A SCENARIOS
11. Listening to the Parties' oral submissions, one issue that we are carefully considering – and
that appears to us to be of particular importanc e for the parties -is the question of whether or not
Label B (US and Canada\Mexico) should be available also for products derived only from US
animals. We are considering this issue from the pe rspective of the arguments of both parties. Looking
at the complainants' arguments, there are three specific points on which we are reflecting. First, we are

reflecting on why it might be unreasonable to require Label A if the steak (for example) is in fact
made from 100% US cattle (born, raised and slaughtered in the US). It is not immediately apparent to
us why such a requirement, viewed in isolation, would be, per se , unreasonable. Second, we are
puzzled by the assertion that daily segregation be tween Label A and Label B would not be possible
because Canadian\Mexican livestock might "inadverten tly slip in to a Label A day" (Canada's Oral
Statement, paragraph 15). We wonde r if it would be excessively costly to prevent this happening.
Third, if slaughterhouses would really wish to use Label B, we do not understand why it would be
excessively expensive for them to always add on e cut of Canadian\Mexican meat to each daily
production run. Thus, there would never be a Label A issue.
12. In general terms, we apprecia te that relatively small import volumes (compared to domestic
production) may likely incur higher unit costs for co mplying with new regulations, but, like the US,
we hesitate to see this, in itself, as sufficient to find WTO inconsistency. On the other hand, looking at
the same issue from the point of view of the US argu ments, there are still issues that are not clear to
us. First, we take the US at their word and posit a "perfect" consumer – that is, one that understands
what the labels mean. Second, we take the three spec ific explanations provided by the US that refine
and explain what the "legitimate objective" is: to a void confusion (US Oral Statement, paragraph 9);
to provide something "meaningful" (US Oral Stat ement, paragraph 9); and to provide additional
information to assist in purchasing and consumption decisions.
13. Now, I imagine myself on my next trip to the US purchasing a Label B (US and Mexico)
steak to eat. In doing so, I have no idea whethe r or not commingling on the same production day
occurred with respect to that steak. All I know is that my steak (which being a steak must reasonably
be considered to have come from one animal) co mes from one of three types of animal: born in
Mexico, raised and slaughtered in the US; born, ra ised and slaughtered in the US (and commingled);
or born and raised in Mexico and slaughtered in the US. As an informed consumer I have consented
to and chosen all three of these possibilities. So far, so good. I cook my steak (medium rare) and settle
down to eat it with some salad and French fries (if I'm allowed to use that term). At this point a
helpful gentleman from the US Department of Agriculture appears at my side and enjoins me to stop –
because I am making a terrible error (or should I say, mistake). I am confused, he informs me. Things
are not what they seem. That steak in fact comes fro m an animal born, raised and slaughtered in the
US, and there was no commingling – it should have been labelled "A". I am misled. But I would
politely reply that I am not confused – and that with respect I think that he might be confused. I would
remind him that when I purchased the steak I had no idea whether or not commingling had occurred,
and could not care a less. I had already accepted the possibility that the steak might be from an animal
born, raised and slaughtered in the US when I made my decision to purchase and consume it. The
helpful gentleman might try a different variation on the same theme, telling me that he is providing
me with something meaningful – to which I would r espectfully reply that I know it already, so it is no
more meaningful to me than the information that I am sitting on a chair and holding a knife and fork.
Finally, he might try to suggest that on the basis of this additional information I might care to change
my purchase and consumption decision – and again I would respectfully decline, because I had
already taken it into account when I made my original decision. In other words, Mr. Chairman, to coin
a phrase, I think I would have my steak … and eat it.
14. Perhaps one could understand the helpful gen tleman's concern if my purpose in buying a
Label B (US and Mexico) steak was the hope that I might make a contribution to the development of
Mexico – an objective apparently th warted by the fact that I have been misled into purchasing a pure
US steak. However, the EU has not yet located on the file any evidence to support the proposition that
the object and purpose of the measure at issue incl udes providing consumers with the opportunity of
discriminating in favour of imports for positive reasons – but perhaps we are overlooking it. To
conclude, if it would turn out that, taking the parameters of the measure as they are (including the
commingling rules), and based on the US' own specific clarificati ons of what it means by legitimate

objective, this part of the measure does not, in the "real world", plausibly meet the stated objective,
then we would have to further reflect about Article 2.2 of the TBT Agreement.
VII. ORIGIN RULES VERSUS ORIGIN LABELLING
15. Finally, Mr. Chairman, we would like to re-iterate a point that we have already alluded to in
our submissions. We make a distinction between the issue of origin rules on the one hand, and the
issue of labelling (including as regards origin) on the other hand. This case is not about origin rules. It
is about labelling. And we are concerned that it sh ould not spill-over into a case about origin rules.
Article IX of the GATT 1994 addresses marks of origin and the Agreement on Rules of Origin, which
cross-references Article IX of the GATT 1994, cont ains provisions about origin rules that are
permissive. We wonder about the extent to which, if a rule of origin would be permitted pursuant to
these provisions, labelling on the same basis should be precluded by the TBT Agreement, which we
recall does not refer expressly to origin. We not e that one can have ma ndatory labelling about
anything (we refer to dumping or subsidies as an example), and it seems to us that it might be
problematic to dissociate any assessment of such matters from the covered agreements that
specifically regulate the substantive issue.

ANNEX C-13

EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT
OF THE EUROPEAN UNION AT THE SECOND SUBSTANTIVE MEETING

1. Mr. Chairman, distinguished Members of the Panel. We have the following brief
observations at this time, particularly in light of the responses to questions, rebuttals and second
oral statements.
I. ARTICLE IX OF THE GATT 1994 AND THE AGREEMENT ON RULES OF
ORIGIN
2. We note that notwithstanding the Panel's questions
1, neither Canada 2 nor Mexico 3
pursues any claims under Article IX of the GA TT 1994 or the Agreement on Rules of Origin;
and the US does not reference th ese provisions in its defence. 4 Consequently there is no basis
for the Panel to make findings with respect to these provisions. Accordingly, we ask the Panel to
state clearly in its Report that any findings it makes are without prejudice to the relevance of
such provisions in any future dispute.
II. THE VILSACK LETTER
3. With respect to the Vilsack Letter, 5 we believe it may be of assistance to the Panel to
recall the relevant provisions of Articles 4, 6 5 7 and 7 8 of the International Law Commission
Articles on Responsibility of States for Internationally Wrongful Acts, 9 which have been

1 European Union's third party written submission, para. 3; European Union's first oral statement,
para. 42; European Union's reply to questions 2 and 18.
2 Canada's second written submission and replies to first set of questions (no reference to
Article IX or the Agreement on Rules of Origin).
3 Mexico's second written submission (no reference to Article IX or the Agreement on Rules of
Origin) and reply to question 55, para. 151.
4 United States' second written submission and replies to first set of questions (no reference to
Article IX or the Agreement on Rules of Origin).
5 European Union's third party written submission, para. 24; European Union's first oral
statement, paras. 10 to 18; European Union's reply to question 7, paras. 40 to 43.
6 "1. The conduct of any State organ shall be cons idered an act of that State under international
law, whether the organ exercises legislative, executiv e, judicial or any other functions, whatever position
it holds in the organization of the State, and whatever its character as an organ of the central Government
or of a territorial unit of the State.
 2. An organ includes any person or entity wh ich has that status in accordance with the
internal law of the State."
7 "The conduct of a person or entity which is not an organ of the State under article 4 but which
is empowered by the law of that State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in that
capacity in the particular instance."
8 "The conduct of an organ of a State or of a pe rson or entity empowered to exercise elements of
the governmental authority shall be co nsidered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions."
9 Draft Articles on Responsibility of States for In ternationally Wrongful Acts, Text adopted by
the International Law Commission at its fifty-third session, in 2001, and submitted to the General
Assembly as a part of the Commission's report covering the work of that session (A/56/10). Yearbook of
the International Law Commission, 2001, vol. II, Part Two, as corrected.

referenced in a number of WTO disputes as reflect ing customary public international law, also
with respect to the question of imputability.
10
4. We remain unpersuaded by the latest US submissions 11 that, in construing the Final
Rule and the Vilsack Letter together as a singl e measure or evidence of a single measure,
Canada12 and Mexico13 have exceeded their (fettered) discre tion in relation to such matters; nor
that the Panel would do so if it would proceed in the same manner. We do not see the (un-
evidenced and thus uncertain) status of th e Vilsack Letter under US domestic law as
determinative of this question. Rather, it appears to us that, considered in isolation, the Vilsack
Letter would be meaningless. It only takes on mean ing when considered together with the other
document(s) to which it refers, particularly the Final Rule.
III. ALLEGED LESS-FAVOURABLE TREATMENT "IN FACT" (ARTICLE III:4
OF THE GATT 1994 AND ARTICLE 2.1 OF THE TBT AGREEMENT)
5. Without entering into the facts, as indicated in our prior submissions, 14 we remain un-
persuaded by the Complainants' arguments and their general methodological approach to the
problem of demonstrating less favourable treatment "in fact". 15 We agree with them that the US
"like product"16 and "private actor"17 arguments are unconvincing; a nd that the position in other
Members is not relevant. 18 Furthermore, it might or might not be that the introduction of this
new regulatory measure has increased costs, and that this has been felt more keenly, either
temporarily or as a result of lower volum es and higher unit costs, by importers. 19 But these are
common features of regulatory change and do not, in our view, in themselves, demonstrate less

10 Appellate Body Report, US – Cotton Yarn, para. 120 and footnote 51; Appellate Body Report,
US –Line Pipe , para. 259 and footnotes 255 to 257; Panel Report, US-Gambling, paras. 6.128 to 6.129
and footnotes 697 to 701; Panel Report, Mexico – Taxes on Soft Drinks , para. 8.180 and footnotes 404
and 405; Panel Report, EC-Selected Customs Matters, para. 7.552 and footnote 932; Panel Report, Brazil
– Retreaded Tyres , para. 7.305 and footnote 1480; Appellate Body Reports, Canada/US – Continued
Suspension, paras. 382; Panel Report, Thailand – Cigarettes , para. 7.120 and footnote 533. See also:
Arbitration Panel Report EC – Bananas III (US) (Article 22.6 – EC) , footnote 67; Arbitration Panel
Report, Brazil – Aircraft (Article 22.6 – Brazil) , para. 3.44 and footnotes 45, 46 and 48; and Arbitration
Panel Report, US – FSC (Article 22.6 – US), footnote 52 and paras. 5.58 to 5.60 and footnotes 67 to 69.
11 United States' second written submission, paras. 11 to 19.
12 Canada's second written submission, paras. 102 to 107; Canada's reply to question 1.
13 Mexico's second written submission, paras. 35 to 42; Mexico's reply to question 1.
14 European Union's third party written submission, paras. 31 to 43; European Union's reply to
question 3, paras. 29 to 32.
15 In particular, Canada's second written submi ssion, paras. 5 to 45; Mexico's second written
submission, paras. 108 to 145; Canada's second oral statement, paras. 9 to 57. See also: United States'
second written submission, paras. 29 to 96.
16 European Union's third party written submission, paras. 25 to 30; Canada's second written
submission, paras. 11 to 14; Mexico's second written submission, paras. 116 to 120; United States' reply
to question 47.
17 Canada's second written submission, paras. 15 to 16; Mexico's second written submission,
paras. 121 to 129.
18 Canada's second written submission, paras. 17 to 23; Canada's Second Oral Statement,
paras. 58 to 59.
19 Canada's second written submission, paras. 24 to 45; Mexico's second written submission,
paras. 125 to 145.

favourable treatment. 20 Nor do we agree that origin labelling rules that apply equally to all
cannot, by definition, be characterised as neutral technical regulations.21
6. We are not positing a higher evidential burden for "in fact" cases.22 We are just recalling
the basic fact that if you have the text of a measure that is expressly discriminatory it is a simple
matter to adduce it to a panel. If you do not, yo u necessarily have to adduce evidence of other
facts (at least two or more) and explain how they work together to support the finding of further
facts, of which there is no direct evidence, so as to build a reasoned and adequate explanation
between the facts thus established and any finding of inconsistency. We think this is something
more than "aims and effects", and we just don't find it clearly set out in the Complainants'
submissions.
7. The covered agreements pursue a trade objectiv e, but they do not set out to eliminate
regulatory diversity; and mutual recognition is onl y a stable operational approach if the costs
implied by different regulatory systems do not differ excessively.
8. Finally, we observe that an alleged "in fact" breach of Article 2.1 of the
TBT Agreement is a particularly serious matter, to the extent that it would be the case that
Article XX of the GATT 1994, for example, would not be available as a defence.
IV. PROPORTIONALITY (ARTICLE 2.2 OF THE TBT AGREEMENT)
9. As we have indicated in our submissions , we consider that proportionality probably
offers the best approach in this case. We agre e with the US that the importing Member sets its
own ALOP, and that panel's should exercise restraint on the questions of whether the objective
is as stated and whether it is legitimate.
23 However, we do think that the Panel can and should
enquire into the question of whether or not th e Complaining Members have demonstrated that
there are less trade restrictive measures that equally fulfil the legitimate objective.
A. THE OBJECTIVE OF THE MEASURE IS CONSUMER INFORMATION
10. We do not believe that it would be necessary or appropriate in this case for the Panel to
find that – objectively – the objective of the measure is something other than the provision of
consumer information.24 As we have indicated in our subm issions, we think that the Panel can
provide a satisfactory resolution of the dispute without calling into question that aspect of the
US submissions.

20 European Union's third party written submission, paras. 31 to 43; United States' reply to
questions 14 and 46.
21 Canada's second oral statement, para. 12.
22 Mexico's second written submission, para. 110.
23 United States' second written submission, paras. 98 to 105.
24 European Union's third party written submission, para. 37; European Union's first oral
statement, paras. 19 to 23; European Union's reply to question 10, paras. 50 to 51 and Question 19,
paras. 66 to 69; Canada's second written submissi on, paras. 50 to 54 and 57 to 68; Mexico's second
written submission, paras. 149 to 161; United States' second written s ubmission, paras. 118 to 146 and
reply to question 3; Canada's second oral statement, paras. 62 to 67.

11. We do not agree with Canada that the TBT list of objectives is closed by reference to
other provisions of the covered agreements;
25 nor do we agree that such objectives have to be
"specific".26
B. THE OBJECTIVE OF CONSUMER INFORMATION IS LEGITIMATE
12. We consider that the objective of providing consumer information about origin is a
legitimate one.27 We fail to see how the Complainants can reasonably argue that the reference to
"labelling" in the TBT Agreement also refers to origin labelling; 28 and yet at the same time that
origin labelling is not a legitimate objective. We do not agree that the defending Member has to
provide "clear and compelling" evidence of legitimacy.29
C. THE IMPORTANCE OF THE OBJECTIVE AND THE RISKS OF NON-FULFILMENT
13. Whilst we agree that not all objectives will necessarily be legitimate, we do not consider
that it would be necessary or appropriate in this case for the Panel to address this question. We
think it both unnecessary and incorrect to opine about the relative degree of regulatory space
under the SPS and TBT Agreements – if anythi ng we see more regulatory space under the
TBT Agreement.30 We think that the Panel can provide a satisfactory resolution of the dispute
on the basis of other reasoning.
D. LABEL B IN LABEL A SCENARIOS: A LESS TRADE RESTRICTIVE MEASURE THAT EQUALLY
FULFILS THE STATED OBJECTIVE
14. We have already explained why we think that the Complainants have identified a
measure that is less trade restrictive, or significantly less trade restrictive, and that equally fulfils
the stated objective. 31 That measure would be to permit the use of label B in all cases, even if
co-mingling did not occur, or occurred over an extended period of time (such as a year, for
example). This would be less trade restrictive because US slaughter houses would no longer be
fettered by the COOL measure in their decisions to take Canadian and Mexican cattle and hogs.
It would equally fulfil the stated objective because the overall design and architecture of the
measure reveals that it is premised on the assumption that US consumers do not care if their
steak is a bit more likely to be American than one might imagine, given the indication on the
label (US and Canada/Mexico).
32 Conversely, there is no evidence to support the view that the
measure was designed so as to enable US consumers to prefer imported meat.33 Finally, nothing
would prevent slaughterhouses using label A if c onsumers would want it. We think this would
largely address the concerns raised by Canada and Mexico, whilst leaving the essence of the
measure, as it is already designed, in place.34

25 Canada's second written submission, paras. 70 to 76.
26 Canada's second written submission, paras. 55 to 56 and para. 69.
27 United States' second written submission, paras. 106 to 117.
28 See the discussion at paras. 15 to 22 of the European Union's third party written submission.
29 Canada's second written submission, para. 70.
30 Canada's second written submission, para. 86 and paras. 91 to 95.
31 European Union's first oral statement, paras. 27 to 41.
32 United States' reply to question 48.
33 United States' reply to question 56.
34 Canada's second written submission, paras. 77 to 83; Canada's reply to question 24; Mexico's
second written submission, paras. 87 to 98; Mexico's reply to question 24; US Replies to Questions 10, 24
and 29.

E. THE VILSACK LETTER
15. We have explained that we consider the V ilsack Letter – which apparently "reflects the
priorities of the new Administration" 35 – to be more trade restrictive than the Final Rule, and
thus by definition inconsistent with Article 2.2 of the TBT Agreement. We think that such a
finding would preclude reversion to a measure of that substantive content in the context of
compliance.36
F. VOLUNTARY LABELLING
16. We have explained why we consider th at voluntary labelling would not necessarily
achieve the stated objective.37
G. SUBSTANTIAL TRANSFORMATION
17. We have explained why we consider that the Complainants' arguments about substantial
transformation are not persuasive.38
V. CONCLUSION
18. On the basis of the foregoing, we consider that the Panel could reasonably find that the
measure is inconsistent with Ar ticle 2.2 of the TBT Agreement insofar as it does not permit the
use of label B in other situations where the meat may in fact be of pure US origin; and insofar as
the Vilsack Letter is more trade restrictive than necessary to fulfil a legitimate objective. With
the possible exception of Article 12 of the TBT Agreement, 39 the Panel could judicially
economise on the remainder of the claims.

35 United States' reply to question 4, para. 6.
36 European Union's reply to question 6, paras. 40 to 43; Canada's second written submission,
paras. 102 to 111; Mexico's second written submission, paras. 35 to 42.
37 European Union's third party written submission, paras. 41 and 56; Canada's second written
submission, paras. 96 to 98; Mexico's second written submission, paras. 165 to 169; United States' reply
to question 37.
38 European Union's third party written submission, para. 57; European Union's reply to
question 17, paras. 63 to 64 and Question 2, para. 27; Canada's second written submission, paras. 99 to
101; Mexico's second written submission, paras. 165 to 169.
39 European Union's first oral statement, para. 12; European Union's reply to question 16,
paras. 59 to 62.

ANNEX C-14

THIRD PARTY ORAL STATEMENT OF GUATEMALA
AT THE FIRST SUBSTANTIVE MEETING

1. Mr. Chairman, Members of the Panel, delegati ons representing the Parties and Third Parties
to this dispute, staff of the WTO Secretariat, good morning.
2. At the outset, on behalf of the delegation of Gu atemala, I would like express our appreciation
for this opportunity to present our views during this proceeding.
3. Guatemala is a small country with limited r esources. Nevertheless, Guatemala makes every
effort to actively participate in those disputes, where it has a systemic interest. In this case, Guatemala
has a systemic interest in all the issues raised by the Parties and my delegation would like to take this
opportunity to offer some comments to the Panel.
4. Guatemala recognizes that all WTO Members have the right to adopt mandatory country of
origin labelling requirements. That is, any Member ma y require meat or any other product to have its
origin indicated when it arrives at its border. None of the Parties or the Third Parties appear to
disagree on this. The question then, is whether by adopting such origin labelling requirements, a
particular Member (in this case, the United States) is, or is not, acting in a manner contrary to its
obligations under the WTO Agreements.
5. Canada and Mexico argue that this case is a bout protectionism and discrimination. According
to the complainants, the US country of origin requirements impose significantly greater costs and
burdens on the use of Canadian and Mexican cattl e and hogs in the production of beef and pork,
mainly because it is required to segregate the products to effectively comply with the COOL measure.
6. In addition, as a part of the legal instrume nts that conform the COOL measure, Canada and
Mexico include an open letter from the US Secret ary of Agriculture, Mr. Tom Vilsack, on which he
asked the industry to "voluntarily" adopt labelling in a manner more restrictive than that provided in
the COOL legislation and the Final Rule. As an alte rnative, Mr. Vilsack stated in his letter that he
would "carefully consider whether modifications to the rule will be necessary to achieve the intent of
Congress".
7. On the other hand, the United States argues that the objective of its labelling requirements is
to ensure that consumers are provided information a bout the meat and other food products they buy at
the retail level and to prevent "c onsumer confusion" with regard to the origin of the products.
According to the US, among other aspects, nothing in the regulations requires segregation. The US
has the position that the legal instruments identifie d by the complainants do not conform one COOL
measure and that the Vilsak Letter is not a technical regulation nor is it mandatory.
8. None of the parties to the dispute appear to deny that COOL requirements (independently
whether it is a single measure or a set of measures) are technical regulations. Therefore, in
Guatemala's view, the Panel should ascertain first, whether the technical regulation or regulations
fulfil a legitimate objective.
9. Guatemala agrees with the US that Article 2.2 of the TBT Agreement contains a
nonexhaustive list of legitimate objectives, as confirmed by the use of the term "inter alia". However,
Guatemala is not persuaded that, in this particular case, the measure or measures at issue are designed

in a manner to fulfil the alleged legitimate obj ective (i.e., among others, to prevent "consumer
confusion").
10. We all heard yesterday that there could be cases where commingling 1% meat from the
United States with 99% of meat from Canada (or Me xico) may allow the use of the label stating that
the product is from the United States and Canada (or Mexico). We also heard from Mexico the
example that cattle coming from Guatemala and be ing simply slaughtered in Mexico would be
classified in the United States as Mexican beef. Ho wever, it would not be the same case for Mexican
cattle that was slaughtered in the United States, as the beef would not be classified as from the United
States, but as Mexican.
11. Therefore, Guatemala is of the view that the United States has not offered sufficient evidence
as to how the COOL measure or measures fulfil th e alleged legitimate objective of giving accurate
information to the consumer regarding the origin of the products and, in this manner, to prevent
confusion.
12. In the event that the Panel considered that th e COOL measure or measures fulfil a legitimate
objective, in Guatemala's view, the second questi on would be to ascertain whether the technical
regulation or regulations are not "pre pared, adopted or applied" with a view to or with the effect of
creating unnecessary obstacles to international trade. Here, the analysis of the legal value of the
Vilsak Letter might be relevant. Guatemala consid ers that this letter should be considered as a
measure for purposes of this dispute.
13. In particular, not only because any act or omission attributable to a WTO Member can be a
measure of that Member for purposes of dispute settlement proceedings, but also because the letter,
although requests "voluntary" actions from the industry, appears not to give any other option but to
comply with such "voluntary" actions (making this measure, de facto, mandatory).
14. In the remote event that the Panel determined th at the technical regulation or regulations were
not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to
international trade, Guatemala is of the view th at the Panel then needs to examine whether the
conditions of competition where modified. This ex amination should be, in Guatemala's view, linked
to the question of whether products imported from the territory of any Member are accorded treatment
no less favourable than that accorded to like pro ducts of national origin and to like products
originating in any other country. To this end, the Panel may need to ascertain whether the alleged
costs of segregation effectively modified the conditions of competition.
15. Finally, Mr. Chairman, regarding the question you posed to the third parties about any
mandatory country-of-origin labelling scheme that our countries could maintain, I can inform that we
have just received a considerable amount of info rmation from our Capital. We are in the process of
examining this information. Provisionally, I can ad vance that we have some mandatory rules for
country-of-origin labelling. However, we would s ubmit further detailed inform ation in writing within
the delays established by the Panel foreseen to that end.

ANNEX C-15

EXECUTIVE SUMMARY OF THE
THIRD PARTY WRITTEN SUBMISSION OF JAPAN

I. INTRODUCTION
1. Japan's third party submission focuses on the cons istency with Article 2.1 of the Agreement
on Technical Barriers to Trade (the "TBT"), Artic le III.4 of the General Agreement on Tariffs and
Trade 1994 (the "GATT") and Second Sentence of Article 2.2 of the TBT, of the country-of-origin
labelling requirements (the "COOL measure") im posed by the United States on certain covered
commodities including beef and pork when they are sold to final consumers.
II. THE PANEL SHOULD CAREFULLY SCRUTINIZE WHETHER THE COOL
MEASURE ACCORDS LESS FAVOURAB LE TREATMENT TO IMPORTED
PRODUCTS THAN TO LIKE PRODUCTS OF NATIONAL ORIGIN WITHIN THE
MEANING OF ARTICLE 2.1 OF THE TBT AND ARTICLE III.4 OF THE GATT
2. The first question to be examined by the Pa nel is whether the COOL measure, which is
applied only to beef and pork, is considered as according less favourable treatment to
Canadian/Mexican cattle and hogs than that to those of the United States, and constitutes the violation
of Article 2.1 of the TBT and Article III.4 of the GATT.
A. A
RTICLE 2.1 OF THE TBT
3. Canada and Mexico consider that the COOL measure constitutes a technical regulation
defined in ANNEX 1, paragraph 1 of the TBT.1 On this basis, they claim that Canadian/Mexican cattle
and hogs are accorded treatment less favourable than that to cattle and hogs of the United States, and
that the COOL measure is in violation of Article 2.1 of the TBT.
4. The United States, on the other hand, considers that the phrase "in respect of" in this provision
is interpreted as meaning "be directed to; refer to ; related to; deal with; be concerned with" in
accordance with the Oxford Dictionary 2 and argues that the scope of the national treatment obligation
is restricted to the products which are "related to " or "directed to" a technical regulation concerned on
the basis of "in respect of technical regulations" in Article 2.1 of the TBT. In other words, the United
States argues that, since the COOL measure merely regulates the labelling related to beef and pork in
the retail market of the United States, this measure is not considered as being "related to" to the
labelling of livestock such as cattle and hogs, and thus falls outside the regulatory scope of Article 2.1
of the TBT. However, neither Canada nor Mexico refers to this regard3.
5. Since there is no jurisprudence regarding the phrase "in respect of" in Article 2.1 of the TBT,
and since Article 2.1 of the TBT places no limiting words on "technical regulations" in contrast to
Article III:4 of the GATT, where "all laws, regulations and requirements" are limited by the words
"affecting their internal sale, offering for sale, purchase, transportation, distribution or use", Japan
would respectfully ask the Panel to carefully ex amine the interpretation and argument by the United
States regarding the phrase "in respect of", which is spelled out in the previous paragraphs in this
submission.

1 Canada's first written submission, paras. 69-74; Mexico's first written submission, paras. 239-260.
2 United States' first written submission, para. 197.
3 United States' first written submission, para. 198.

B. ARTICLE III.4 OF THE GATT
6. The claim by Canada and Mexico that the COOL measure, which is applied only to beef and
pork, accords less favourable treatment to Canadian/Mexican cattle and hogs than that to those of the
United States needs to be examined in relation to "affecting" and "less favourable treatment" under
Article III.4 of the GATT.
7. Regarding the word "affecting", the Appellate Bo dy held that this requirement 'serves to
define the scope of application of Article III:4'. 4 In this regard, Mexico claims that, while the COOL
measure does not directly regulate cattle, it affects the internal sale of cattle.5 Thus, it concludes that
the COOL measure violates the national treatment obligation in Article III.4 of the GATT. Canada
also makes similar arguments to Mexico.6
8. There are not a few precedents regarding the term "affecting" under Article III.4 of the GATT.
For example, the panel in Canada – Autos held that '[t]he word "affecting" in Article III:4 of the
GATT has been interpreted to cover not only la ws and regulations which directly govern the
conditions of sale or purchase but also any laws or regulations which might adversely modify the
conditions of competition between domestic and imported products'.7
9. Moreover, the panel's reasoning in Mexico – Taxes on Soft Drinks with respect to Article III.4
of the GATT may offer a suggestion for the present case. In this case, the United States claimed that
the soft drink tax and the distribution tax, both of which are imposed on soft drinks and syrups when
they are sold in retail, affect ed not only the internal sale of soft drinks and syrups but also the internal
sale of sweeteners which are used to produce soft drinks, in the Mexican market, and accorded less
favourable treatment to US beet sugar than that to Mexican cane sugar under Article III.4 of the
GATT. In this regard, the panel concluded that the internal sale of beet sugar of the United States in
the Mexican retail market was also affected by the soft drink tax and the distribution tax.8
10. Thus, there is no doubt for the Panel to conclude that the COOL measure is considered as
affecting internal sale of Canadian/Mexican cattle and hogs in the retail market of the United States.
Moreover, this issue should also be examined in re lation to "less favourable treatment". In this regard,
the United States points out that the detrimental effects to import cattle/hogs in the market alleged by
Canada and Mexico are caused by "factors not re lated to the COOL measur es", and thus concludes
that the COOL measures do not modify the condition of competition. 9
11. Japan is of the view that the question whethe r the COOL measure modifies the condition of
competition in livestock trade, that is Canadian cattle and hogs, should be carefully examined by the
Panel, because this measure does only regulates the labelling requirement for beef and pork and does
not directly regulate internal sale of livestock.
12. Lastly, Japan points out that the reason is not that clear why the United States cites the
paragraphs from 196 to 199 of its Written Submission, which are about the interpretation of the phrase
"in respect of" in Article 2.1 of the TBT, in the footnote 331 of its written submission in the context of
"less favourable treatment" of Article III.4 of the GATT. Should the United States consider that there
is a link between two phrases, the reason for such link needs to be further clarified.

4 United States' first written submission, para. 198.
5 Mexico's first written submission, para. 213.
6 Canada's first written submission, paras. 221-222.
7 Panel Report, Canada – Autos, para. 10.80. See also Appellate Body Report, US – FSC (Article 21.5
– EC), paras. 208-209.
8 See Panel Report, Mexico – Taxes on Soft Drinks, para. 8.109.
9 United States' first written submission, para. 150.

III. THE PANEL SHOULD CAREFULLY EXAMINE WHETHER THE COOL
MEASURE IS TRADE-RESTRICTIVE THAN NECESSARY TO FULFIL A
LEGITIMATE OBJECTIVE
13. The next question to be examined by Japan is whether the COOL measure, which is applied
as a technical regulation only to beef and pork, is determined to be more restrictive to trade of
Canadian/Mexican cattle and hogs than necessary to fulfil a legitimate objective under Article 2.2 of
the TBT.
A. T
HE PANEL SHOULD CAREFULLY EXAMINE WHETHER THE COOL MEASURE RESTRICTS
TRADE
14. Canada and Mexico also allege a violation of the second sentence of Article 2.2 of the TBT. In
order to find that a measure is considered more trade-restrictive than necessary to fulfil a legitimate
objective, Canada argues that the following two elemen ts need to be established: first, a technical
measure must restrict trade; and second, the trade- restrictiveness of the technical regulation must be
greater than necessary to fulfil its legitimate objective. 10 With respect to the first requirement, Canada
argues that the COOL measure has restricted trade in Canadian cattle and hogs, while the COOL
measure is applied only to beef and pork.11
15. Thus, Japan respectfully asks the Panel to caref ully examine whether the COOL measure is
considered as restricting trade of Canadian/Mexican cattle and hogs to the United States under second
sentence of Article 2.2 of the TBT. The legal relationship between the first sentence and the second
sentence of Article 2.2 of the TBT might shed some lights on the assessment of this question. The first
sentence reads that "[m]embers sha ll 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 ."
(Italic Added) Since the second sentence begins w ith the phrase of "[f]or this purpose", and as also
confirmed by the United States and Canada that 'the second sentence explains what the first sentence
means'12, the interpretation of the phrase "international tr ade" in the first sentence could provide for
some clues to the regulatory scope of "trade" under the phrase "trade-restrictive" in the second
sentence.
B. THE UNITED STATES NEEDS TO DEMONSTRATE IN ITS REBUTTAL THAT THE ALTERNATIVE
MEASURES RAISED BY CANADA AND MEXICO ARE NOT LESS RESTRICTIVE TO TRADE OF
CANADIAN/MEXICAN CATTLE AND HOGS THAN THE COOL MEASURE
16. Both Canada and Mexico claim that the COOL measure is more restrictive to trade of
Canadian/Mexican cattle and hogs than necessary to fulfil its legitim ate objective. In this context,
they raise the following alterna tive measures; first, a Voluntary Labelling Scheme; and second, a
Labelling System Based on Substantial Transformation.13
17. In this regard, Canada enumerates the three elements to be estab lished for determining
whether a measure is "more trade-restrictive th an necessary" under the second sentence of Article 2.2
of the TBT as follows: first, an alternative measure exis ts that would meet the Member's legitimate
objective; second, the alternative measure is reaso nably available taking into account technical and

10 Canada's first written submission, para. 183. Mexico also refers to "trade-restrictive" as one of the
requirements. Mexico's first written submission, paras. 305-307.
11 Canada's first written submission, para. 186. Mexi co also considers that the meaning of "trade-
restrictive" is to "deny competitive opportunities to im ports of Mexican feeder ca ttle". Mexico's first written
submission, para. 313.
12 United States' first written submission, para. 202.
13 Canada's first written submission, para. 191.

economic feasibility; and third, the alternative meas ure is less restrictive to trade than the measure
being challenged.14 With respect to the third requirement, Canada claims that the COOL measure has
resulted in a significant reduction in exports of Canadian cattle and hogs to the United States.15
18. While the United States does not attempt to rebut the case by Canada and Mexico concerning
this regard, it is to be noted that the United States, if necessary, would need to show in its rebuttal that
the alternative measures raised by Canada a nd Mexico are not less restrictive to trade of
Canadian/Mexican cattle and hogs to the United States than the COOL measure, not trade of
Canadian/Mexican beef and pork.
C. THE PANEL SHOULD CAREFULLY INTERPRET THE SECOND SENTENCE OF ARTICLE 2.2 OF THE
TBT
19. Regarding how to prove "more trade-restrictiv e than necessary" under the second sentence of
Article 2.2 of the TBT, the United States argues that one of the elements to be established by a
complainant is whether an alternative measure is significantly less trade-restrictive to trade. 16 I n
support of incorporating the term "significantly" into this provision, it relies on the contextual
similarities between Article 2.2 of the TBT and Article 5.6 and Footnote 3 of the Agreement on the
Application of Sanitary and Phytosanitary Measure (the " SPS").17 It also invokes the December 15,
1993 letter from the Director-General of the GATT to the Chief United States Negotiator concerning
the application of Article 2.2 of the TBT in order to support its own contextual interpretation18.
20. However, the United States seems to misunders tand the ordinary meaning of the terms in
interpreting the WTO Agreement. It is already est ablished that Article 31 of the Vienna Convention
on the Law of Treaties has attained the status of a rule of customary or general international law in
interpreting the WTO Agreement. 19 The fact that there is neither "significant" nor "significantly" in
Article 2.2 of the TBT must be taken into account, and the difference in the wording between
Article 2.2 of the TBT and Article 5.6 and Footnote 3 of the SPS must be read on the contextual basis.
Thus, Japan would request the Panel to examine car efully the above assertion of the United States in
this light.

14 Canada's first written submission, para. 190. See also Mexico's first written submission, para. 310.
15 Canada's first written submission, para. 199. See also Mexico's first written submission, para. 317.
16 United States' first written submission, para. 249 (italic original).
17 United States' first written submission, paras. 246-247.
18 United States' first written submission, para.248.
19 See also Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes.

ANNEX C-16

EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT
OF JAPAN AT THE FIRST SUBSTANTIVE MEETING

I. INTRODUCTION
1. Due to its systemic interest in the sound interpretation of the legal obligations at issue, Japan's
third party oral statement focuses on two points rega rding Article 2.1 of the Agreement on Technical
Barriers to Trade ("TBT Agreement"), especially the following issues.
 (1) Whether the COOL measure accords less favourable treatment to Canadian/Mexican
cattle and hogs than to the like products of the United States; and

 (2) the interpretation of the phrase "in respect of" under Article 2.1 of the
TBT Agreement in its consideration of the views expressed by the United States and
other third parties.

II. WHETHER THE COOL MEASURE ACCORDS LESS FAVOURABLE
TREATMENT TO CANADIAN/MEXICAN CATTLE AND FOGS THAN TO THE
LIKE PRODUCTS OF THE UNITED STATES UNDER ARTICLE 2.1 OF THE
TBT AGREEMENT
2. It is established that a measure in question is considered to be according less favourable
treatment to foreign products than to the like produc ts of domestic origin if this measure modifies the
conditions of competition in the relevant market to the disadvantage of the imported product.
1
3. In Korea – Various Measures on Beef , the Korea's dual retail system promulgated in 1990
restricted a 'Specialized Imported Beef Store' from selling domestic beef , and other small retailers
from selling imported beef in the Korean retail market. As the result of this, 'the existing small
retailers had to choose between, on the one hand, c ontinuing to sell domestic beef and renouncing the
sale of imported beef or, on the other hand, ceasing to sell domestic beef in order to be allowed to sell
the imported product. Apparently, the vast majority of the small meat retailers chose the first option'. 2
Accordingly, while the dramatic reduction in number of retail outlets for imported beef occurred by
the decisions of individual retailers who could c hoose freely to sell the imported beef, the Appellate
Body stated that '[t]he legal necessity of making a choice was…imposed by the measure itself. The
restricted nature of that choice should be noted…T he choice was limited to selling domestic beef only
or imported beef only'. 3 The Appellate Body also held that '[w]hat is addressed by Article III:4 is
merely the governmental intervention that affects the conditions under which like goods, domestic
and imported, compete in the market within a Member's territory'.4
4. In this regard, Canada asserts that the C OOL measure requires US feeding operations and
slaughter houses to segregate livestock at each stage of the production process.5 On the other hand, the
United States argues that '[i]n law and in fact, the 2002 COOL Statute, as amended, 2009 Final Rule,

1 Appellate Body Report, Korea – Various Measures on Beef , para. 144; Appellate Body Report,
Dominican Republic – Import and Sale of Cigarettes, para. 91.
2 Appellate Body Report, Korea – Various Measures on Beef, para. 145.
3 Korea – Various Measures on Beef, Appellate Body Report, para. 146. (underline added)
4 Korea – Various Measures on Beef, Appellate Body Report, para. 149. (italic original)

and FSIS Final Rule do not require US processors to segregate livestock'. 6 According to the United
States, US processors are not legally prevented fro m buying Canadian/Mexican cattle and hogs in the
US retail market and explained several options available for US processors.
5. Japan notes that, in Korea – Various Measures on Beef , the dual distribution system based on
the origins of products was directly imposed by Ko rea's law and regulation. However, there may be a
possibility that the COOL regulations are s till regarded as governmental intervention that de facto
compels US feeding operations and slaughter houses to make a choice to purchase US cattle and
hogs.
7 While admitting that "U.S. feeding operations and slaughter houses do, in theory, have ability
to 'choose' whether to use Canadian cattle and hogs, and US retailers have, in theory, the ability to
'choose' to sell Canadian-origin beef and pork", Ca nada still asserts that "the COOL measure imposes
the 'necessity of making a choice'" on US industry to use exclusively US-origin livestock. 8 T h e
United States responds that, while cont rasting with the Appellate Body in Korea – Various Measures
on Beef which referred to "the legal necessity of making a choice", "the COOL leads to some
producers experiencing a commercial necessity to segregate products."9 (Italic Original)
6. Thus, there appear to be divergent views among the parties on whether the COOL measures at
issue impose a kind of "legal necessity of making a choice" referred to by the Appellate Body in
Korea – Various Measures on Beef . Japan considers that resolving th is issue would turn on a factual
analysis as to whether the measures at issue re quires segregation and whether segregation costs are
such a high level that they compel US processors to use only US-origin animals.
III. THE INTERPRETATION OF THE PHRASE "IN RESPECT OF" UNDER
ARTICLE 2.1 OF THE TBT AGREEMENT IN CONSIDERATION OF THE VIEWS
EXPRESSED BY OTHER THIRD PARTIES
7. Regarding the phrase "in respect of" under Article 2.1 of the TBT, the United States argues in
its written submission that, since the COOL Statut e and 2009 Final Rule mere ly regulate the labelling
related to beef and pork in the retail market of the United Stat es, this measure is not considered as
being "related to" to the labelling of livestock such as cattle and hogs, and thus falls outside the
regulatory scope of Article 2.1 of the TBT.10
8. On this issue, Australia provides its view th at the phrase "in respect of" should mean that
"where technical regulations are applied by a WTO Member". 11 The EU seems to argue that

6 United States' written submission, paras. 153, 159.
7 In this regard, New Zealand also argues in its third party submission that 'there may be a violation [of
Article 2.1 of the TBT] where those private actions are compelled, de facto or de jure, by the measure at issue'.
New Zealand submits that 'the Panel should consider whether governmental actions have created the situation
where private actors are compelled to act in a certain way because of a "n ecessity of making a choice"'. From
these observations, New Zealand seems to argue that, even in case that private actors are de facto compelled to
act in a certain way through governmental actions, it might be decided that the condition of competition is
modified to the disadvantage of the imported product. According to New Zealand, 'although a technical
regulation may not explicitly require a specific action, it nevertheless unduly influences the actions of private
entities so as to adversely affect "the conditions under which like goods, domestic and imported compete in the
market"' (New Zealand, third party written submission, paras. 26-27.).
10 United States' first written submission, para. 198.
11 Australia's third party submission, paras. 39-44.

Article III.4 of the GATT provide relevant context for th e interpretation of this phrase under
Article 2.1 of the TBT.
 12
9. While Article III.4 of the GATT reads "in respect of all laws , regulations and requirements
affecting their internal sale, offering for sale, purchas e, transportation, distribution or use", Article 2.1
of the TBT reads "in respect of technical regulations". Given the similarity of, and close relation
between, those two provisions, as agreed among parties, 13 Article III.4 of the GATT should provide
guidance for the interpretation of Article 2.1 of the TBT, including the phrase "in respect of".

12 European Union's third party submission, paras. 27-30.
13 See Canada's first written submission, para. 78; Me xico's first written submission, para. 263; United

ANNEX C-17

THIRD PARTY ORAL STATEMENT
OF JAPAN AT THE SECOND SUBSTANTIVE MEETING

I. INTRODUCTION
1. Mr. Chairman and distinguished members of th e Panel, Japan appreciates the opportunity to
present its brief views as a third party in this importa nt dispute. Today, we will not reiterate what we
have already said in our written submission and firs t oral statement. Rather, we will focus on
different issues regarding Article 2.2 of th e Agreement on Technical Barriers to Trade
("TBT Agreement").
II. ARTICLE 2.2 OF THE TBT AGREEMENT
2. The parties claim that whether the COOL me asure "fulfils" the legitimate objective of
providing consumer information and preventing cons umer confusion depends on the factors including
the following ones.
 What kind of information US consumers want from a country-of-origin labelling;
 Whether US consumers can understand the diffe rences between Label "A", "B", and "C"
meat products; and
 Whether the COOL measure provides US cons umers with accurate information about the
origin of meat products.
3. First, according to Canada, 1 "[t]he COOL measure provides information that US consumers
generally are not interested in knowin g and it is therefore not meaningful." 2 It also argues that "the
vast majority of consumers express no interest in country-of-origin labelling[…]much less in the kind
of information required to be provided by the COOL measure." 3 Mexico also argues that "[t]o the
extent some US consumers stated they wanted information on the country in which the cattle used to
produce beef products were born and raised, the proportion of those consumers to the entire
population of US beef consumers was very small."
4 In response, the United States claims that the US
consumers want information about the country-of-o rigin of the meat products they buy, including
information about where the source animals were born, raised, and slaughtered. 5 As a matter of fact,
it may occur to any society that the scope of info rmation that a labelling measure in question provides
to its domestic consumers does not correspond exactly to the one they actually desire. In other words,

1 Canada argues that "in order to fulfil the objec tive of providing consumers with information, the
information must be 'meaningful'. In other words, it must provide consumers with information that is desired by
them, or at least information on which they are willing to act." (Canada's second written submission, para. 81,
Underline Added).
2 Canada's second written submission, para. 82.
3 Canada's second written submission, para. 82. See also Canada's responses to the Panel's questions
from the first substantive meeting, para. 82 ("There may be a small sub-set of consumers who are interested in
whether their meat comes from animals born and raised in the United States").
4 Mexico's second written submission, para. 68.
5 United States' second written submission, paras. 11 1-114. The United States also states that "[US]
consumers believe that meat products that are designated as US origin are and should be derived from animals
born, raised, and slaughtered in the United States and that other definitions of US origin would be misleading."
(United States' answers to Panel's first set of questions, para. 93).

information to be provided by a labelling measu re may cover information other than domestic
consumers actually want. Does this fact lead a pa nel to decide that this measure does not fulfil the
legitimate objective of providing consumers informa tion? Given that its objective is to provide
consumers with information, we do not believe th at a government should always be free to enforce
any labelling measure irrespective of what kind of information domestic consumers actually desire.
However, in Japan's view, only the evidence showi ng the minor gap between c onsumers' desire and a
labelling measure in terms of the sc ope of information does not always lead a panel to rule that the
measure does not fulfil the legitimate objective of providing consumers information.
4. This view is also supported by the following reasoning. As also explained in its answer to the
Panel's question 15, Japan is of the view that the te rm "origin" in the context of the customs law is
different from the one in the context of a labelling.
6 Therefore, the Agreement on Rules of Origin
does not provide clear guidance for the term "origin" in the context of a labelling. Moreover, it is
provided in the preamble of the TBT Agreement th at "no country should be prevented from taking
measures necessary[…]at the levels it considers appropr iate". On this basis, there exists no clear
provision in the WTO Agreement specifying what in formation should be attached to a country-of-
origin labelling. In other words, the question as to what extent of information a country-of-origin
labelling system should include falls within the discr etion of WTO Members. However, this labelling
system should not be more trade-restrictive than necessary to fulfil its legitimate objectives.
5. Second, according to Canada, 7 "[t]he meaning of the labels [in the COOL measure] is not
easily deciphered by [US] consumers. The averag e consumer would not be able to appreciate the
difference between the various labels", 8 and "[m]ost consumers do not understand the subtle
differences between Label 'A', 'B', and 'C' meat." 9 Mexico also states that " it is clear that the average
consumer [in the United States] will not be able to understand the exact meaning of the information
contained in the label." 10 However, no party submits any convincing evidence that shows the
consumer's ability or disability to distinguish the di fferences between these Labels. It might be true
that US consumers are sometimes not able to pe rfectly understand what the difference between Label
"B" and "C" means without additional information. While the consumers' perception may play a
certain role to a panel in examining whether a labelling measure fulfils its legitimate objective of
providing consumers information about the country -of-origin for meat products, the Panel should
carefully examine whether the alleged disability of consumers to recognize the distinctions between
Label "A", "B", and "C" is sufficient to decide that the COOL measure does not fulfil such an
objective.
6. Third, the COOL measure aims at providing US consumers with information about the
country-of-origin where the animal from whic h the meat was derived was born, raised, and
slaughtered.11 In addition, the United States claims that the objective of the COOL measure is to
prevent US consumers from being confused with th e wrong use of labelling "Product of U.S.", which,
according to the United States, should be used only when the source animals were born, raised, and
slaughtered in the United States. 12 Thus, it needs to be examined whether the COOL measure is
structured so that US consumers are informed of an d not confused with the country-of-origin of meat
products.

6 Japan's replies to questions from the Panel following the first hearing, paras. 3-5.
7 Canada argues that "to fulfil its purported objective, the information available as a result of the COOL
measure would have to be accurate." (Canada's first written submission, para. 178).
8 Canada's first written submission, para. 181.
9 Canada's second written submission, para. 79.
10 See also Mexico's responses to the Panel's questions from the first substantive meeting, para. 116.
11 United States' answers to Panel's first set of questions, paras. 105, 107; United States' opening
statement at the first substantive meeting, para. 38.
12 See also United States' answers to Panel's first set of questions, paras. 100-101,104.

7. As to the multiple-origin labelling for muscle cuts of meat under the COOL measure such as
Label B and Label C, Mexico claims that Label B, "in itself, is confusing because consumers will not
know that the entire process of meat production took place in the United States while only the birth
and minimal raising of the animal occurred in Mexico." 13 Japan agrees with this Mexico's view to
some extent. As long as the objective of the COOL measure is to provide US consumers with three
specific pieces of information about where the so urce animals were (1) born, (2) raised, and (3)
slaughtered, Label B "Product of US and Country X" and Label C "Product of Country X and U.S."
would not be able to provide US consumers with information the COOL measure intends to provide
unless further and specified information were added to these Labels. Only the description "Product of
US and Mexico" itself under Label "B" provides US consumer s with no exact information about
where the source animals were born, raised, and slaughtered.14
8. Even as to the single-origin labelling for mu scle cuts of meat under the COOL measure,
Mexico argues that, in addition to the case wh ere the animal sources were born, raised, and
slaughtered in Country X, and imported into the United States, there are three more cases where Label
D "Product of Country X" may be used under the COOL measure. 15 If so, US consumers would not
be able to identify the four different cases from Label "D" itself.
9. However, it should be noted that the multiple-ori gin labelling for muscle cuts of meat such as
Label "B" and Label "C" may fulfil the other objective of the COOL measure, that is to prevent US
consumers from being confused with the wrong use of labelling "Product of U.S." for meat products,
the animal resources of which were actually born a nd raised in a foreign country and immediately
slaughtered in the United States. 16 In this regard, both Label "B" and Label "C" at least inform US
consumers that muscle cuts of meat labelled with Label "B" or "C" are different from Label "A" and
that the source animals were not exclusively born , raised, and slaughtered in the United States.
However, the COOL measure is still subject to the review as to whether it is not more trade-restrictive
than necessary to fulfil its legitimate objectives.
10. As to the labelling rules under the COOL measure for meat products that are derived from the
commingling of various livestock, there exists the flex ibility under the 2009 Final Rule that permits a
retailer to use either Label "B" or "C" on any combin ation of Label A, B, and C livestock in case that
they are commingled during a single production day. 17 In this regard, Canada argues that "even a
consumer who ardently wished to purchase meat that went through a particular life-cycle (say
'Canadian-born, U.S.-raised and – slaughtered') wo uld not be able to determine from the Labels
whether the meat came from such an animal."
 18 As also questioned by the Panel to the United
States,19 even when 1% of Label A livestock (i.e. born, raised and slaughtered in the United States)
and 99% of Label C livestock (e.g. born and raised in Country X and immediately slaughtered in the

13 Mexico's first written submission, para. 301.
14 It is also noted that, as Mexico also points out , Label "C" may also be used for two occasions under
the COOL measure; first, where the source animals were born and raised in Mexico, and immediately
slaughtered in the United States; and second, where they were born in the United States, raised in Mexico, and
slaughtered in the United States (Mexic o's responses to the Panel's questions from the first substantive meeting,
para. 188). If so, US consumers are not able to rec ognize the difference between above two cases from Label
"C" itself.
15 Mexico's responses to the Panel's questions from the first substantive meeting, paras. 188-189.
16 United States' answers to Panel's first set of questions, paras. 100-101,104.
17 As to the labelling rules for commingling under th e COOL measure, see United States' answers to
Panel's first set of questions, para. 16; United States ' second written submission, para. 42; Mexico's second
written submission, para. 47; Mexico's responses to the Panel's questions from the first substantive meeting,
para. 37.
18 Canada's second written submission, para. 80.
19 United States' answers to Panel's first set of questions, para. 48.

United States) are commingled in a single producti on day, the meat product based on these livestock
may still be labelled as Label B "Product of US and Country X". In this case, while 99% of meat
products are actually based on cattle born and raised in Country X, the name of the United States may
come first under Label "B". 20 In this regard, according to the United States, "a consumer [in the
United States] is likely to believe that the meat is most closely affiliated with the name of the country
that appears first on the label".21 As already explained above, we raise a question to the Panel whether
such consumers' perception is not sufficient for the Pa nel to reach a conclusion. In addition to this, if
the United States measures are designed to misguide US consumers who act on such a perception,
Japan is of the view that the COOL measure is more likely not to fulfil the objective of preventing US
consumer confusion to this extent.
11. Moreover, there is no disagreement that there are two cases where Label "B" may be used;
first, for muscle cuts of meat
22; and second, for meat products that are derived from the commingling
of any combination between Label A, B, and C lives tock. Japan agrees with Canada, Mexico and the
EU that US consumers are not able to identify which case the meat products labelled with Label B
actually indicate without further information.
12. This concludes our statement today. We woul d be pleased to respond to any questions that
the Panel may have.

20 Even when Label B livestock (i.e. born in Country X, and raised and slaughtered in the United
States) and Label C livestock (e.g. born and raised in Country Y, and immediately slaughtered in the United
States) are commingled in a single production day, the meat product may also be labelled with Label B, that is
for example "Product of US and Country X and Country Y".
21 United States' answers to Panel's first set of questions, para. 118.
22 When the source animals were born in a foreign country, and raised and slaughtered in the United
States.

ANNEX C-18

EXECUTIVE SUMMARY OF THE
THIRD PARTY WRITTEN SUBMISSION OF KOREA

I. INTRODUCTION
1. This dispute arises from the United States' rece nt introduction of country-of-origin labelling
requirements (the "COOL Measure") for certain covered commodities. The complainants assert that
the COOL Measure violates various provisions of the TBT Agreement and the GATT 1994.
2. As Korea has systemic interests in the interpre tation and application of various provisions of
the TBT Agreement and the GATT 1994, it has reserved its third party rights pursuant to Article 10.2
of the DSU. Korea appreciates this opportunity to present its views to the Panel.
II. LEGAL ARGUMENTS
A. THE COOL MEASURE SEEMS TO BE A SPECIFIC RESPONSE TO US CONSUMERS'
INCREASING DEMAND FOR ACCURATE COUNTRY OF ORIGIN INFORMATION
FOR CERTAIN PRODUCTS
3. One of the controversial issues raised in this dispute is whether the COOL Measure is a
consumer information provision measure or a disg uised protectionist measure to drive out certain
designated foreign products from the respondent's market. Korea notes that a large number of
Members have respective country of origin labelli ng systems already in place. The wide permeation
of the country of origin labelling system may indicate that there is nothing inherently wrong about a
Member's effort to introduce a measure setting fort h country of origin la belling requirements in
response to specific demand from its own consumers for such information.
4. In addition, in this dispute the "likeness" analysis of a product alone may not necessarily
provide an accurate barometer in determining whether a Member's decision to provide certain
information to its own consumers is appropriate under the circumstances. While a "like product"
analysis usually focuses on the product character istics, a consumer information appropriateness
inquiry would have to look into the demand and pr eference for certain specific information from a
distinct group of consumers within a Member's ju risdiction, which may or may not be the same as the
demand or preference from the group of consumers from another Member even though the products at
issue may be considered "like" in that particular instance.
B. INCURRENCE OF "ADDITIONAL COSTS" ALONE MAY NOT BE SUFFICIENT TO
CONSTITUTE MODIFICATION OF "CONDITIONS OF COMPETITION" UNDER
ARTICLE 2.1 OF THE TBT AGREEMENT AND ARTICLE III:4 OF THE GATT 1994
5. The complainants' main argument in the comp etition-of-condition modification claim pretty
much hinges on the alleged burden of additional "segregation costs" that they have been forced to bear
as a result of the introduction of the COOL Measur e. The complainants' first written submissions,
however, do not seem to have provided sufficient evidence to prove that the US business entities'
alleged reluctance to trade foreign product can be single-handedly attributed to the alleged
"segregation costs" attendant to the COOL Measure. In the course of the future proceedings, the
Panel would have to look into th e record in this dispute carefully to determine (i) whether other
factors than additional "segregation costs" contribut ed to the US business en tities' decision to curtail

their transactions with the product from the comp lainants; and (ii) if so, whether additional
"segregation costs" have played a predominant role among others in their decision making process.
6. Likewise, the complainants' claim that the C OOL Measure has caused "drastic reduction of
commercial opportunities" also warrants an in-depth inquiry from the Panel. As the complainants
argue, the "segregation costs" span over various expenditures including costs accruing from
differentiated inventory and stock controls, traini ng of staff, and time to monitor each product is
appropriately labelled. And as complainants seem to agree, these are in fact costs to ensure accuracy
of the information to be contained in the labe l including information on country of origin. An
argument can be made that costs to ensure accuracy of information may accompany any sort of
governmental regulation and that such costs may no t be unique characteristics of country of origin
labelling in general or the COOL Measure in particular.
C. A
 MEMBER'S LEGISLATIVE HISTORY SHOULD BE CAREFULLY EXAMINED WITH
A FULL PICTURE IN MIND
7. In order for a panel to accurately discern objectiv es of laws and regulations of a Member, the
entire spectrum of the discussions on the record s hould be examined and contemplated. Only then
could we confirm the existence of protectionist inte nt, if there is any. Reference to only certain
chosen statements from industry officials or legi slative members may not be able to convey the
background and legislative intent accurately.
8. An important piece of evidence raised in this regard is the letter from the US Secretary of
Agriculture to the US domestic industry officials. The exact nature of the US Secretary's letter can
only be confirmed through a careful scrutiny into the entire situations involving the interactions
between the US government and US industries at that particular point in time.
D. A MEMBER CLAIMING NULLIFICATION AND IMPAIRMENT UNDER
ARTICLE XXIII:1(B) OF THE GATT 1994 IS REQUIRED TO SHOW MORE THAN MERE
COMMERCIAL LOSS AS A RESULT OF INTRODUCTION OF A MEASURE
9. Korea submits that the nullification and impairment provision contained in Article XXIII:1(b)
of the GATT 1994 is not intended to protect business entities of other WTO Members from all
instances of commercial loss. Thus, in EC – Asbestos the Appellate Body stated that "the remedy in
Article XXIII:1(b) should be approached with caution and should remain an exceptional remedy."1
10. As such, the Appellate Body precedents make clear that this is an exceptional remedy that can
be considered only in exceptional situations in wh ich a Member's legitimate expectation of benefit
from a trade agreement has been seriously harmed because of a measure and the Member were not
reasonably able to anticipate such a measure at the time of the conclusion of the agreement. This
provision therefore should not be expanded to cover all the instan ces of unexpected business loss,
foregone commercial opportunities or deteriorating business performance of entities of a Member in
the domestic market of another Member.
11. The questions posed in this dispute, therefore, are whether the alleged harm is so severe that a
drastic remedy under Article XXIII:1(b) of the GA TT 1994 is warranted and whether complainants
could not have reasonably anticipated the COOL Measures at the time the tariff concessions were
negotiated during the Uruguay Round. These questions merit the Panel's careful examination of the
factual record and consideration of the parties' arguments.

1 Appellate Body Report, EC – Asbestos, at para. 186. (emphasis added).

ANNEX C-19

THIRD PARTY ORAL STATEMENT OF KOREA
AT THE FIRST SUBSTANTIVE MEETING

1. Mr. Chairman and members of the Panel. The Republic of Korea ("Korea") appreciates this
opportunity to present its views on the key issues included in Korea's third party submission.
A. T
HE COOL MEASURE SEEMS TO BE A SPECIFIC RESPONSE TO US CONSUMERS' DEMAND FOR
ACCURATE COUNTRY OF ORIGIN INFORMATION FOR CERTAIN PRODUCTS
2. The core controversial issue raised in this dispute is whether the COOL Measure is an
appropriate consumer information provision measure or a disguised pr otectionist measure to drive out
certain designated foreign products from the res pondent's market. Korea would like to offer two
observations concerning this issue. Korea first notes that a large number of Members have respective
country of origin labelling systems already in place. The wide permeation of the country of origin
labelling system may indicate that there is nothi ng wrong about a Member's effort to introduce a
measure setting forth country of origin labelling re quirements in response to specific demand from its
own consumers for such information. Korea further notes that in this dispute the "likeness" analysis
of a product alone may not necessarily provide an accurate barometer to determine whether a
Member's decision to provide certain information to its own consumers is appropriate under the
circumstances.
B. INCURRENCE OF "ADDITIONAL COSTS " ALONE MAY NOT BE SUFFICIENT TO CONSTITUTE
MODIFICATION OF "CONDITIONS OF COMPETITION" UNDER ARTICLE 2.1 OF
TBT AGREEMENT AND ARTICLE III:4 OF GATT 1994
3. The complainants argue that the COOL Measure modifies "conditions of competition" in the
market. The complainants' main argument in th e competition-of-condition modification claim pretty
much hinges on the alleged burden of additional "segregation costs" that they have been forced to bear
as a result of the introduction of the COOL Measur e. Korea notes discrepancy in parties' factual
accounts in this regard. In Korea's view, in the course of the first substantive meeting, the Panel
would have to look into the record in this dispute carefully to determine (i) whether other factors than
additional "segregation costs" contributed to th e US business entities' decision to curtail their
transactions with the product from the complainants; and (ii) if so, whether additional "segregation
costs" have played a predominant role among others in their decision making process.
4. Likewise, in our view much of the costs menti oned by the complainants seem to be in fact
costs to ensure accuracy of the information to be contained in the label including information on
country of origin. An argument can be made that costs to ensure accuracy of information may
accompany any sort of governmental regulation and that such costs may not be unique characteristics
of country of origin labelling in general or the COOL Measure in particular.
C. A MEMBER'S LEGISLATIVE HISTORY SHOULD BE CAREFULLY EXAMINED WITH A FULL
PICTURE IN MIND
5. Next, Korea would like to draw the Panel's at tention to the importance of considering the
entire evidence on the record in exploring objectives of laws and regulations of a Member. Only then
could the Panel confirm the existence of protectionist intent, if there is any. The Panel should be
mindful that reference to only certain chosen statements from industry officials or legislative members
may not be able to convey the background and legisla tive intent accurately. The controversial letter

from the US Secretary of Agricultu re to the US domestic industry officials should also be put into
proper perspective. Mere communication with th e industry officials through an "open letter" and
remarks on the possibility of exercising statutory au thority may not necessarily turn the letter into a
document issuing mandatory requirements.
D. A
 MEMBER CLAIMING NULLIFICA TION AND IMPAIRMENT UNDER ARTICLE XXIII:1(B) OF THE
GATT 1994 IS REQUIRED TO SHOW MORE THAN ME RE COMMERCIAL LOSS AS A RESULT OF
THE INTRODUCTION OF A MEASURE
6. As regards the nullification and impairment cl aim, Korea submits that the nullification and
impairment provision contained in Article XXIII:1(b) of the GATT 1994 is not intended to protect
business entities of WTO Members from all instances of commercial loss. We note that the Appellate
Body precedents make clear that this is indeed an exceptional remedy that can be considered only in
exceptional situations in which a Member's legitim ate expectation of benefit from a trade agreement
has been seriously harmed because of a measure and the Member were not reasonably able to
anticipate such a measure at the time of the conc lusion of the agreement. This provision therefore
should not be expanded to cover all instances of unexpected business loss, foregone commercial
opportunities or deteriorating business performance of entities of a Member in the domestic market of
another Member.
7. Mr. Chairman and members of the Panel, Korea realizes that determination of these issues
much depends on the development and clarification of factual issues to be made through the present
substantive meeting of the Panel. Korea respectfu lly requests the Panel to discharge its obligation
under Article 11 of the DSU by reviewing the f acts on the record carefully and by applying
appropriate jurisprudence.
8. Korea again thanks the Panel for the opportunity to present its views in this proceeding.

ANNEX C-20

EXECUTIVE SUMMARY OF THE
THIRD PARTY WRITTEN SUBMISSION OF NEW ZEALAND

I. INTRODUCTION
1. New Zealand's participation as a Third Party in th is dispute reflects both its interest in the
systemic legal issues arising from the country of origin labelling (COOL) measure, and its trade
interest in the United States beef market. As an agricultural exporting nation, the proper
implementation of the WTO Agreement on Technical Barriers to Trade (the TBT Agreement) is of
fundamental importance to New Zealand.
II. THE TBT AGREEMENT
A. GENERAL
2. New Zealand recognizes the rights of WTO Memb ers to take measures necessary to ensure,
inter alia, the protection of human, plant, or animal health, the environment, or for the prevention of
deceptive practices, at the levels they consider a ppropriate. However, any such measures are subject
to the disciplines of the WTO Agr eements. With respect to technical regulations and standards, and
procedures for assessment of conformity with techni cal regulations and standards, New Zealand notes
the particular importance the TBT Agreement place s on ensuring that such measures do not create
unnecessary obstacles to trade. The United States' C OOL measure raises several questions regarding
compliance with the provisions of the TBT Agreement.
B. WHETHER THE VILSACK LETTER IS A TECHNICAL REGULATION
3. Canada and Mexico claim that an open letter fro m the United States' Secretary of Agriculture,
Thomas J. Vilsack, to industry representatives dated 20 February 2009 (the "Vilsack letter"), and a
related press release, constitute a technical regulation within the meaning of Annex 1.1 of the
TBT Agreement. The letter suggests that industry "voluntarily adopt" certain labelling practices in
addition to those required in regulations. To determ ine that the Vilsack letter constitutes a technical
regulation within the meaning of Annex 1.1, the Panel will have to find that compliance with the letter
is mandatory. This raises the question whether comp liance is required to be mandatory on the face of
the document, or whether it can also be deemed de facto mandatory due to surrounding circumstances.
4. New Zealand takes the view that Annex 1.1 does not exclude the possibility of a measure
being deemed a technical regulation even though compliance with it is not mandatory on its face . It is
important to recognize this possibility in order to prevent WTO Members from circumventing their
obligations under the TBT Agreement by designi ng measures that appear on their face to be
voluntary, but are in fact mandatory.
5. New Zealand recognizes, however, that the Panel should not make such a finding lightly. To
do so would risk rendering null and void the inte nded distinction between mandatory technical
regulations and voluntary standards provided for in the TBT Agreement. To find a technical
regulation de facto mandatory, there must be some factor present in the nature of the document and its
surrounding context that is sufficient to transform the measure from one that is intended to be adhered
to on a voluntary basis to one that is truly compulsory. New Zealand submits that a measure should
only be deemed de facto mandatory where industry or other market participants have no real choice as

to whether or not to comply. The Panel must be sa tisfied that the practices are in effect compulsory
and that this is due to the exertion of Government power.
C. A
RTICLE 2.1: LESS FAVOURABLE TREATMENT OF LIKE PRODUCTS
6. Article 2.1 of the TBT Agreement obliges WTO Members to accord imported products
"treatment no less favourable than that accorded to like products of national origin." In accordance
with jurisprudence on Article III:4 of GATT, New Zealand submits that de facto as well as de jure
discrimination falls within the scope of the "less favourable treatment" obligation. 1 As the Appellate
Body has stated, the focus should be on whether a measure "modifies the conditions of competition in
the relevant market to the detriment of imported products." 2 New Zealand submits that even though
the COOL measure is "facially neutral",3 the measure could still result in less favourable treatment.
7. At issue in the dispute is whether any detrim ent to imported products is the result of the
COOL measure, or whether it is due to market-driven private actions . This issue is raised particularly
in the context of the additional costs of segregati ng animals of different origin throughout the supply
chain. New Zealand accepts that there is no violation of Article 2.1 where market-driven practices of
private entities result in detriment to imports. Howe ver, New Zealand submits that even if a measure
does not expressly require private actors to act in a certain way, government actions may have created
a situation that compels private actors to act in that way because of the "necessity of making a
choice". 4 In New Zealand's view, such compulsion could be found to violate the less favourable
treatment obligation, if it results in domestic like products being given a competitive advantage in the
market over imported like products. This will be a matter for the Panel to determine on the facts of the
dispute.
D. ARTICLE 2.2: IS THE COOL MEASURE MORE TRADE RESTRICTIVE THAN NECESSARY?
8. Article 2.2 and the Preamble of the TBT Agreement affirm the rights of WTO Members to
decide which policy objectives they wish to pursue and the levels at which they wish to pursue them.
However, it also places limits on the means empl oyed to achieve those objectives: they must be
consistent with a Member's obligations under the Agreement.
9. New Zealand submits that there are three step s in assessing compliance with Article 2.2: (i)
there must be a legitimate objective; (ii) if the purported objective is found to be legitimate, the
measure must also fulfil this objective; and (iii) the Panel should consider whether the technical
regulation is more trade restrictive than necessary to fulfil the objective, taking into account the risks
non fulfilment would create.
1. Is there a legitimate objective?
10. The United States claims that the legitimate obj ective of the COOL measure is to provide
consumer information.
11. Article 2.2 provides an illustrative list of legitim ate objectives. As the list in Article 2.2 is
non-exhaustive, New Zealand recognizes that a Me mber may demonstrate that other legitimate
objectives also justify technical regulations. Howeve r, New Zealand notes that in the context of a

1 Appellate Body Report, Canada – Autos, para. 57.
2 Appellate Body Report, Korea – Various Measures on Beef, para. 137.
3 United States' first written submission, para. 144.
4 Canada's first written submission, pa ra. 90, citing the GATT Panel Report, US – Section 337 Tariff
Act, para. 5.11.

WTO dispute, a panel has a role to play in dete rmining whether a given objective is legitimate, in
light of the context and circumstances of the case. New Zealand submits that, where a purported
objective is not listed in Article 2.2, a WTO Member must provide particularly clear and compelling
evidence of its legitimacy.
12. New Zealand takes no position as to whether there is a legitimate objective at play in this
dispute. However, in light of the United States' ar gument that the COOL measure is also required "so
as to reduce consumer confusion", New Zealand comme nts on the distinction between the concepts of
consumer information and deceptive practices.
13. New Zealand submits that an important distin ction should be drawn between the objective of
consumer information and that of preventing decepti ve practices. While consumer information can be
a tool through which a Member seeks to counter or prevent deceptive practices, the prevention of
deceptive practices is a narrower concept. This interpretation is supported by the context of
Article 2.2. The other legitimate objectives that are provided as examples in Article 2.2 are potentially
of a particularly important or high-risk nature. Th e nature of these objectives should therefore colour
the interpretation of the objective of preventing deceptive practices, which is included alongside them.
2. Does the technical regulation fulfil the legitimate objective?
14. In the event that the Panel considers that c onsumer information does constitute a legitimate
objective on the facts of this dispute, the next el ement to consider is whether the COOL measure
fulfils this objective. The respondent must de monstrate why the COOL measure is necessary for
consumer information purposes, a nd explain how it will influen ce consumer purchasing decisions.
The design and structure of a measure will be ess ential in determining whether the objective is
fulfilled. For example, the Panel may find it helpful to consider whether there are any arbitrary gaps in
coverage of the COOL measure and also whether in formation conveyed to consumers is accurate and
useful.
3. Whether the technical regulation is more tr ade restrictive than necessary to fulfil the
objective, taking into account the risks non fulfilment would create
15. The final determination in assessing whether a m easure is consistent with Article 2.2 is
whether the technical regulation is more trade re strictive than necessary to fulfil the legitimate
objective, taking into account the risks non-fulfilment would create.
16. In considering whether a measure is necessary, New Zealand refers to the Appellate Body's
guidance in Brazil – Tyres
5 on the necessity test under Article XX(b) of the GATT. New Zealand
submits that, as identified in Brazil – Tyres, the Panel should consider the importance of the interests
or values at stake. 6 Such a consideration is pertinent to th e Article 2.2 requirement that a Member
must bear in mind "the risks non-fulfilment would create". In New Zealand's view, where the
importance of the interest or value is higher, the risks from non-fulfilment must weigh more heavily in
the consideration. As discussed above, New Zealand considers that, in identifying specific legitimate
objectives in Article 2.2, the TBT Agreement recognizes the particular importance of the interests or
values behind these objectives. The ri sks of non-fulfilment would therefore justify more restrictive
measures being taken when those objectives are at stake.

5 Appellate Body Report, Brazil –Retreaded Tyres.
6 Ibid., at para. 178.

17. Finally, in determining whether a measure is ne cessary, the Panel must consider whether less
trade restrictive options exist. In the context of ma ndatory COOL, particular attention should be paid
to the alternative of a voluntary scheme. This is particularly so where there is no health or safety
justification behind the regulation. Voluntary COOL has the ability to provide the same information to
the consumer, where there is the consumer demand for such information.
E. T
HE EXISTENCE OF A RELEVANT INTERNATIONAL STANDARD UNDER ARTICLE 2.4
18. The TBT Agreement does not define the te rm "international standard". However,
New Zealand considers that, to cons titute an international standard unde r Article 2.4, a standard must
be a document approved by a recognized body, such body being an international standardizing body
within the definition provided by the ISO/IEC Guide 2:1991, and whose membership is open to the
relevant bodies of at least all WTO Members. 7
19. New Zealand submits that the Codex Alimenta rius Commission is a "recognized body" for
the purposes of Annex 1.2 of the TBT Agreement and that CODEX-STAN 1-1985 is an international
standard within the context of Article 2.4. The Codex Alimentarius Commission meets the principles
of transparency, openness, impartiality, effectiveness and relevance and coherence set out by the TBT
Committee in relation to international standardising bodies.
III. THE GATT 1994
A. ARTICLE III:4: LESS FAVOURABLE TREATMENT
20. New Zealand refers to its arguments in respect of Article 2.1 of the TBT Agreement and notes
that the same considerations will apply with respect to GATT Article III.4.
B. ARTICLE X: UNIFORM, IMPARTIAL AND REASONABLE ADMINISTRATION OF REGULATIONS
21. GATT Article X:3(a) provides that Members must "administer in a uniform, impartial and
reasonable manner all its laws, regulations, decision s and rulings". In assessing Canada and Mexico's
claims in respect of Article X:3(a), the Panel mu st distinguish between the measure itself and its
administration. The Appellate Body has emphasized that Article X:3 applies solely to the
administration of laws, regulations, decisions and rulings.8
22. Article X.3 is important as it recognizes that matters of governance, including uniform and
reasonable administration of laws and regulations, can have just as significant a trade restrictive effect
as border measures and domestic regulations. A claim under this provision ought therefore to be taken
seriously. However, New Zealand recognizes that a cer tain amount of caution in the interpretation of
the scope of this provision is desirable, given the pot entially intrusive nature of a determination that a
Member has violated Article X.3(a). Allegations that the conduct of a WTO Member is unreasonable
are serious, and should not be taken lightly. 9 Therefore in reaching a decision on the facts, the Panel
ought to seek a balance between the promotion of good governance and trade liberalisation, while
recognizing that countries do have very different sy stems of administration of laws and not every
difference or difficulty faced by traders ought to result in a finding of violation of Article X.3(a).

7 Decision on Principles for the Development of International Stan dards, Guides and
Recommendations with Relation to Articles 2, 5 and Annex 3 of the TBT Agreement, G/TBT/9, 13 November
2000, para. 20 and Annex 4.
8 Appellate Body Report, EC – Bananas III, para. 200.
9 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 217.

ANNEX C-21

THIRD PARTY ORAL STATEMENT OF NEW ZEALAND
AT THE FIRST SUBSTANTIVE MEETING

1. Mr Chairman, Members of the Panel, New Zealand's views on the issues raised in this dispute
are set out in our third party submission of 18 August. In light of the time available today, I will focus
on only a few key issues. As with our written subm ission, New Zealand is not seeking to address the
specific facts of the case, but rather seeks to provide the panel with its views on the legal
interpretation of various relevant aspects of the TBT Agreement and the GATT.
2. New Zealand joined this dispute because of its systemic interests, and desire to ensure that the
delicate balance of rights and obligations set out in the WTO Agreements, especially the
TBT Agreement, is maintained. New Zealand also has a trade interest in the dispute, given its pattern
of beef exports into the US market.
3. First, turning to the threshold issue of whether the letter from the Secretary of Agriculture,
Thomas Vilsack, constitutes a technical regulation u nder the TBT Agreement. A key question in this
regard is whether compliance with the letter is 'man datory', within the meaning of Annex 1.1 of the
TBT Agreement. In essence, the question is whet her on the face of the document compliance is
required, or whether compliance can be d eemed to be mandatory given the surrounding
circumstances.
4. New Zealand's view is that Annex 1.1 does not exclude the possibility of a measure being
deemed a technical regulation even though co mpliance with it is not mandatory on its face . It is
important to recognize this possibility in order to prevent WTO Members from circumventing their
TBT obligations by designing measures that appear on their face to be voluntary, but that are in fact
mandatory. In other words, it is New Zealand's view that the Panel should allow for the possibility of
a measure being de facto mandatory.
5. New Zealand recognizes, however, that such a finding should not be made lightly. To do so
would risk rendering null and void the TBT Agre ement's intended distinc tion between mandatory
technical regulations and voluntary standards. The Ag reement contains different sets of obligations in
respect of mandatory regulations and voluntary st andards. New Zealand submits that a measure
should only be deemed de facto mandatory where industry or other ma rket participants have no real
choice as to whether or not to comply. The Panel mu st be satisfied that the practices are in effect
compulsory and that this is in some way a result of the exercise of Government power.
6. Second, New Zealand submits that similar consider ations should be take n into account under
Article 2.1 of the TBT Agreement and Article III.4 of the GATT, when determining whether a
measure modifies the conditions of competition to the detriment of importe d products. New Zealand
submits that even if a measure, on its face, does not require private actors to act in a certain way,
government actions may create a situation where pr ivate actors are compelled to act in that way
because of a "necessity of making a choice." In New Zealand's view, such compulsion could be found
to violate the no less favourable treatment obligat ion in the TBT Agreement and GATT. This would
be the case if it results in domestic like products being given a competitive advantage in the market
over imported like products.
7. Third, New Zealand would also like to comment on Article 2.2 of the TBT Agreement. The
Preamble and Article 2.2 of the TBT Agreement make clear the right of WTO Members to take
measures to advance domestic policy, including to pursue national security purposes, to prevent

deceptive practices, and to protect human health or safety, animal plant life or health or the
environment. However, in adopting measures to achieve these ends, WTO Members must comply
with the disciplines of the TBT Agreement. These are designed to ensure that TBT measures are
legitimate and are not more trade restrictive than necessary.
8. As you are aware, in this dispute the United States has put forward consumer information as
its legitimate objective. This is not a legitimate obj ective listed in Article 2.2 of the TBT Agreement.
New Zealand recognizes that a WTO Member may demonstrate that other legitimate objectives do
exist, beyond those listed in Article 2.2. However, New Zealand submits that where an objective is
not listed in Article 2.2, a WTO Member must provide particularly clear and compelling evidence of
its legitimacy.
9. In the event the Panel accepts that consum er information does amount to a legitimate
objective on the facts of the dispute, the Panel shoul d next consider whether the technical regulation
fulfils this legitimate objective. In asking whethe r this is the case on the facts in this dispute,
New Zealand submits that the Panel should consider the consistency of coverage of the goods subject
to the COOL requirement, as well as the accuracy, clarity and usefulness of the information obtained
by consumers.
10. The final step in the assessment of whether there has been a violation of Article 2.2 is whether
the measure is more trade restrictive than n ecessary, taking into account the risks non-fulfilment
would create. As part of determining whether a measure is necessary, the Panel must consider whether
less trade restrictive alternatives exist. New Z ealand would like to emphasise the relevance of
voluntary country of origin labelling as an alterna tive to a mandatory regime, particularly where a
consumer information objective is concerned. Voluntary COOL has the ability to provide the same
information to the consumer, where there is the consumer demand for such information. It is
responsive to market demand as opposed to creati ng or distorting the market. Voluntary COOL
therefore allows the design and operation of the la belling system to be developed in response to
supply and demand needs. As such, it is a relevant alternative to mandatory COOL, particularly where
there is no compelling evidence of market failure.
11. Finally, New Zealand would like to provide a general comment on Article X.3 of GATT.
Article X.3 importantly recognizes that matters of governance, including the uniform and reasonable
administration of laws and regulations, can have just as significant a trade restrictive effect as border
measures and domestic regulations. Traditionally, trad e barriers were imposed at the border in the
form of tariffs or quotas. As thes e barriers were brought down, behinC -the-border barriers in the form
of technical regulations and the like gained promin ence. It was recognized by the negotiators of the
GATT in the 1940s that administration could also form a trade barrier. However, for a long time, not a
lot of attention was paid to Article X. Since 1994 it has become an increasing area of focus for WTO
Members, and New Zealand wishes to emphasize the importance of the discipline and development of
jurisprudence with respect to it.
12. New Zealand does however recognize the potentially intrusive nature of a determination that
a Member has violated Article X.3(a). Allega tions that the conduct of a WTO Member is
unreasonable are serious, and should not be taken lightly. New Zealand therefore submits that, in
reaching a decision on the facts, it is necessary to seek a balance between the promotion of good
governance and trade liberalisation, while recognizi ng that countries have different administrative
systems and not every difference or difficulty faced by traders should result in a finding of a violation
of Article X.3(a).

13. With respect to the Panel's question regardi ng any mandatory country of origin labelling
requirements in place in third parties, we have passed the request back to capital and would be pleased
to provide a response in writing in due course.
14. Mr Chairman, members of the Panel, New Zealand respectfully thanks you for your attention.

ANNEX C-22

THIRD PARTY ORAL STATEMENT OF NEW ZEALAND
AT THE SECOND SUBSTANTIVE MEETING

1. Mr Chairman, Members of the Panel. New Zealand appreciates the opportunity to be present
at this second hearing and to be able to make a br ief oral statement in acco rdance with the enhanced
rights third parties have been granted in this disput e. Access to this open hearing, and the opportunity
to receive the Parties' second written submissions im proves the ability of third parties to be able to
follow and meaningfully participate in the dispute.
2. Having read Canada, Mexico and the United States' second written submissions,
New Zealand wishes to focus its comments today on the interpretation of Article 2.2 of the
TBT Agreement. More specifically, we wish to comment on the relevance of Article 5.6 of the
SPS Agreement and Article XX of GATT in determin ing whether, under Article 2.2, a measure is
more trade restrictive than necessary, taking account of the risks non-fulfilment would create.
I. GATT ARTICLE XX (B) AND (D)
3. In its written submission and replies to questions from the Panel following the first hearing,
New Zealand expressed its view that the jurispr udence concerning the necessity requirement under
GATT Articles XX(b) and (d) is relevant to the determina tion under Article 2.2 of the
TBT Agreement. Recent jurisprudence around the Article XX necessity test is particularly pertinent in
light of the Article 2.2 requirement to take acc ount of the "risks of non-fulfilment". New Zealand
considers that Article 2.2 requires balancing factors such as the interests and values at stake (that is,
the importance of the objective and, as a corollary , the risks that non-fulfilment would create), the
contribution of the measure to the achievement of the objective and the degree of trade-restrictiveness
of the measure. This is similar to the 3-way we ighing and balancing exercise that panels and the
Appellate Body have undertaken when dete rmining if a measure is "necessary" under GATT
Article XX(b).
II. SPS ARTICLE 5.6
4. In its written statement and replies to the Pane l's questions, New Zealand also explained that
many, but not all, elements of Article 5.6 of the SPS Agreement and its jurisprudence are relevant to
interpreting Article 2.2 of the TBT Agreement. Beca use of the important differences in language in
the two provisions, interpreters of the agreements should be careful not to read in specific phrases
and/or additional requirements that are not present in Article 2.2, but which are explicit in Article 5.6
5. In addition to the points made in its written submission and replies to questions, New Zealand
would like to comment on another important differen ce between Articles 2.2 and 5.6. This is that
unlike Article 5.6, Article 2.2 does not refer to the concept of "appropriate level of protection".
Instead, Article 2.2 refers to fulfilment of a legitim ate objective. This difference is important because
the SPS Agreement makes clear that Members have th e right to set their own "appropriate level of
protection", although measures must still take in to account scientific evidence and other prescribed
factors. However, a similar level of Member discretion is not present in Article 2.2 of the
TBT Agreement, where a panel has a clear role in determining both whether the stated objective is
legitimate and whether the measure fulfils such objec tive. Neither the concept of "appropriate level of
protection" nor the important additional SPS Agre ement requirements around science are included
elsewhere in the text to ensure that a Member's discretion to determine what is "appropriate" is not
used as a disguised restriction on trade.

6. New Zealand recognizes that the Preamble to th e TBT Agreement refers to Members taking
measures "at the levels [they] consider appropriate". However this discretion relates to measures taken
in the pursuit of a specific list of objectives. Furthermore, the cont ent of a preamble to a treaty does
not comprise an independent obligation in and of itself. Instead, under Article 31(2) of the Vienna
Convention on the Law of Treaties, it provides releva nt context particularly when determining the
object and purpose of the rest of the text. New Zealand therefore considers that a panel should be
careful when looking to add to rights and obligations in the main text of the TBT Agreement based on
language found only in the preamble.
7. In sum, there are clear similarities between th e tests in Article 2.2 of the TBT Agreement,
Article 5.6 of the SPS Agreement and Article XX of the GATT. There are also key differences. It is
appropriate for a panel to look to the requireme nts and jurisprudence under all three articles, but
panels must be conscious, and cautious, of the differences.
8. Mr Chairman, Members of the Panel, New Zealand respectfully thanks you for your attention.

ANNEX C-23

THIRD PARTY ORAL STATEMENT OF PERU
AT THE FIRST SUBSTANTIVE MEETING
1

1. Mr. Chairman, distinguished Members of the Panel, representatives of the parties and third
parties, Peru welcomes this op portunity granted by the Panel to present its views on the dispute
between Canada and Mexico, on the one hand, and the United States (US), on the other, with respect
to certain Country of Origin Labelling (COOL) requirements.
2
2. Peru's participation as a third party to this dispute is based on a systemic interest related to the
proper interpretation and application of the provi sions of the agreements of the World Trade
Organization (WTO), particularly the Agreement on Technical Barriers to Trade (TBT), considering
the importance of the legal debate raised by Canada and Mexico.
3. In our view, the claims submitted by Canada and Mexico are very similar as both Members
claim that the mandatory provisions of the COOL me asure are contrary to Articles 2.1, 2.2 of the
TBT Agreement, Article III: 4, X and XXIII of the General Agreement on Tariffs and Trade
(GATT 1994). In addition, Mexico makes a reference to Articles 2.4 and 12.1 and 12.3 of the
TBT Agreement.
4. Firstly, we would like to refer to the main ar gument outlined by the US which seeks to justify
the alleged compatibility of its measures with the articles mentioned in the preceding paragraph. The
US bases such measures on the right to information for consumers and, therefore, totally rejects that
COOL is a protectionist measure.
5. In this regard, Peru considers that providing better information to consumers is beneficial as it
provides them with the necessary tools to make info rmed decisions about the products they are going
to buy. However, Peru would like to draw atten tion to its concerns about the implementation of
compulsory labelling schemes in different countries which, as has been raised by Canada and Mexico,
might not be used properly and could become trade-restrictive measures.
6. Secondly, Peru would like to refer to the suppos itions of Article 2.2 of the TBT Agreement,
which establishes the analysis to be followed to determine whether a technical regulation is contrary
to the TBT Agreement: First, the panel must veri fy whether the objective pursued by the technical
regulation is legitimate. Secondly, if it is determined that it is a leg itimate objective, it will have to be
determined whether the technical regulation rest ricts trade more than necessary to achieve that
legitimate objective, taking into account the risks non-fulfilment would create.
7. In this regard, we believe that the panel has th e special task to determine if the basis outlined
by the US, providing information to consumers, is a legitimate objective within the scope of
Article 2.2 of the TBT Agreement, and particularly if it does not restrict trade more than necessary to
achieve the legitimate objective pursued, taking into account the arguments provided by Canada and
Mexico.
8. Furthermore, Mexico argues that the measure is inconsistent with Article 2.4 of the
TBT Agreement, because an international standa rd (CODEX-STAN 1-1985) already exists on which

1 This oral statement was originally made in Spanish.
2 The measures that are included on the mandatory provisions of the COOL measure are established in
Mexico's first written submission in para. 9, and in para. 1, footnote 1, in Canada's submission.

the US should base its measure. However, the US argu es that it would be inappropriate to apply this
standard as it would not allow the legitimate objectiv es pursued to be fulfilled given that it would not
provide consumers with information on the origin of meat, and it is in this way that the US justifies
the non-application of the international measure.
9. Peru understands that when there are rele vant international standards such as
CODEX STAN 1-1985, Standard for the Labelling of Pre-packaged foods, Members shall use such
standards or relevant parts as a basis for technical regulations, unless such international standards are
not effective or appropriate for achieving the d esired objectives. In other words, international
standards should always be used in the formulati on of technical regulations. The reference to "the
basis" of Article 2.4 allows each Member to adapt th is international standard to their reality or their
particular circumstances, but not to alter the object ives and substance of the international standard in
question.
10. It should be noted that Article 2.4 provides fo r an exception, when it says: "... except when
such international standards or relevant parts woul d be an ineffective or inappropriate means for the
fulfilment of the legitimate objectives pursued ...." In that sense, if despite the existence of an
international standard, the Member considers that it is not an effective or appropriate means for
achieving the desired objectives, the Member must explain why the international standard does not
permit the desired objectives to be achieved. The question that therefore arises is whether the
CODEX STAN 1-1985, is an effective and appropria te means for achieving the objectives pursued by
the US.
11. In this regard, our interest is that the panel s hould address this issue in depth so as to interpret
the scope of this provision, especially with regard to the term "ineffective or inappropriate standard"
to try to identify the type of elements that w ould permit non-implementation by a Member of this
international standard and not jus tify non-application of the standard simply by stating that it is
ineffective or inappropriate for the achievement of the legitimate objective.
12. Finally, along these lines, and considering the sy stemic interest expressed by several Member
Countries in this dispute, we would like to submit that a very important element is the means of
implementing the recommendation of the panel th at we understand must obvi ously begin from the
assumption of the existence of a violation of multilateral commitments and therefore the formula must
be fully compatible with them. That is, if th e arguments outlined by Canada and Mexico on the
incompatibility of the measure with the TBT Ag reement are accepted, the panel report must be
implemented through a measure which is compatible with the Multilateral Agreements.
13. These are the elements that Peru would like to contribute to this debate, as well as underlining
the importance of this controversy due to its content, its scope and its implications for market access.
14. Finally, and regarding the panel's question on mandatory country of origin labelling schemes,
Peru has identified among its Technical Regulations , a mandatory scheme of labelling of country of
origin. This is the Supreme Decree 019-2005-PR ODUCE, Technical Regulations on tires for cars,
light trucks, buses and trucks, notified to the WT O through document G/TBT/N/PER/7 (dated 5 July
2004), which establishes mandatory technical featur es and labelling for new tires for general use on
cars, light trucks, buses and trucks, whether domesti c or imported, in order that their use does not
endanger life and personal safety.
15. To ensure compliance, domestic manufacturers or importers must submit a Certificate of
Conformity, the requirements and tests established in the regulations, including the requirement for
country of origin labelling. To fulfil this require ment, the country of origin must be stamped or
engraved in the tires, at least on one side, in a clear, visible and permanent manner, in Spanish or

English. Under this regulation, country of origin is understood to refer to the country of manufacture
of the tire and not the country of shipment.
16. This technical regulation was formulated in th e framework of international standards on the
subject, among which we can mention the FMVSS
3 109 (49CFR571.109), the FMVSS 119
(49CFR571.119) and FMVSS 139 (49CFR571.139).

3 Federal Motor Vehicle Safety Standards.