UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS
Document: Notification of an Appeal by the United States under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 28 March 2012
Document codes: WT/DS384/12; WT/DS386/11
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

UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL)
REQUIREMENTS

Notification of an Appeal by the United States
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 23 March 201 2, from the Delegation of the United States, is
being circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review , the
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the Reports of the Panel in ( and ) ("Panel Repor ts") and certain legal interpretations
developed by the Panel.

1. The United States seeks review by the Appellate Body of the Panel's findings and conclusion
that U.S. country of origin labeling requirements
1 are inconsistent with Article 2.1 of the Agreement
on Technical Barriers to Trade (the "TBT Agreement"). 2 This conclusion is in error and is based on
erroneous findings on issues of law and legal interpretations including:
(a) the Panel's finding that the U.S. COOL requirements treat imported livestock
differently than domestic livestock.3

(b) the Panel's finding that the U.S. COOL requirements accord less favorable treatment
to imported livestock than that accorded to domestic livestock by modifying the
conditions of competition to the detriment of imported products.4

1The U.S. COOL requirements consist of the releva nt sections of the Agricultural Marketing Act of
1946 (7 U.S.C.  1638-1638c) ("the COOL statute") and regulations promulgated by the United States
Department of Agriculture’s Agricultural Marketing Service on January 15, 2009, entitled "Mandatory Country
of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Wild and Farm-Raised Fish and Shellfish,
Perishable Agricultural Comm odities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, which are codified at
7 C.F.R. Parts 60 and 65 ("2009 Final Rule"). See Panel Reports, para. 7.61.
2See, e.g., Panel Reports, paras.7.420, 7.548, 8.3(b).
3See, e.g., Panel Reports, paras.7.295-7.296.
4See, e.g., Panel Reports, paras. 7.420, 7.548

2. The United States also requests the Appellate Body to find that the Panel acted inconsistently
with Article 11 of the DSU by failing to make an objective assessment of the facts related to these
issues, specifically that segregation of livestock is "necessitated" by the COOL requirements, that
commingling is not occurring on a widespread basis, and that the COOL requirements resulted in a
"price differential" between domestic and imported livestock,
5 and by using these faulty factual
findings to support its conclusions with regard to different treatment and less favorable treatment.
3. The United States also seeks review of the Pa nel's findings and conclusion that the COOL
requirements are inconsistent with Article 2.2 of the TBT Agreement.6 This conclusion is in error and
is based on erroneous findings on issues of law and legal interpretations including:
(a) with regard to section VII.D.3(b) of th e Panel Reports, the Panel's finding that the
COOL measure is "trade restrictive" for purposes of Article 2.2.7

(b) with regard to section VII.D.3(c) of the Panel Reports, the Panel's failure to consider
all relevant information regarding the U. S. chosen level of fulfillment of the
legitimate objective.8

(c) with regard to sections VII.D.3(d)-(e) of the Panel Reports: (1) the Panel's legal
framework for determining whether a measure is "more trade-restrictive than
necessary to fulfil a legitimate objective";
9 (2) the Panel's finding that the COOL
requirements do not fulfill the legitimate objective at the level the United States
considers appropriate;10 and (3) the Panel's failure to require the complaining parties
to meet their burden to prove that the measure is "more trade-restrictive than
necessary" based on the availability of a signi ficantly less trade-restrictive alternative
measure that also fulfills the objective at the level the United States considers
appropriate.
11

4. The United States also requests the Appellate Body to find that the Panel acted inconsistently
with Article 11 of the DSU by failing to make an objective assessment of the facts related to these
issues, specifically the Panel's findings regarding the level at which the United States considers it
appropriate to fulfill its objective.12
The United States is providing a copy of this letter directly to Canada, Mexico and to the third
parties.

5See, e.g., Panel Reports, paras. 7.316, 7.327, 7.336, 7.352-353, 7.356, 7.364, 7.366-368, 7.379. 7.487,
and 7.542.
6See, e.g., Panel Reports, para. 8.3(c).
7See, e.g., Panel Reports, paras. 7.565-7.575.
8See, e.g., Panel Reports, paras. 7.590-7.620.
9See Panel Reports, paras. 7.652, 7.666-7.670, 7.692-7.720.
10See, e.g., Panel Reports, paras. 7.692-7.720.
11See Panel Reports, para. 7.719.
12See, e.g., Panel Reports, paras. 7.619-7.620, 7.715.