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The WTO Agreement on Technical Barriers to Trade and Recent Food Labeling Cases
Introduction
The World Trade Organization's (WTO) Agreement on Technical Barriers to Trade (TBT
Agreement) establishes obligations that WTO members must adhere to when they impose
requirements on a product's characteristics.' To date, relatively few WTO disputes have been
raised challenging member compliance with the TBT Agreement's provisions. However, in recent
years, the United States has faced claims alleging its failure to abide by the terms of the TBT
Agreement.2 In two of these cases, which are still ongoing, the WTO found that certain U.S.
labeling requirements for food products violated the TBT Agreement's nondiscrimination
obligations-that is, the measures at issue treated foreign products less favorably than domestic
products.3 The Appellate Body reports from these two disputes provide insight into how the WTO
applies these nondiscrimination provisions, and can provide guidance for Congress to consider
when enacting future programs that regulate product characteristics. This report analyzes the
Appellate Body decisions in two disputes: U.S. Certain Country of Origin Labeling
Requirements (U.S.-COOL) and U.S. Measures Concerning the Importation, Marketing and Sale
of Tuna and Tuna Products (U.S.-Tuna II).
In 2008, Canada and Mexico, through WTO dispute settlement procedures, requested
consultations4 with the United States regarding U.S. country of origin labeling (COOL)
requirements for certain beef and pork products.5 In the WTO dispute U.S. COOL, Canada and
Mexico claimed that the labeling program, inter alia, violated U.S. obligations under the TBT
Agreement, arguing that the COOL program impermissibly treated foreign livestock less
favorably than domestic livestock.6 After the parties exhausted the available dispute settlement
procedures, including appeals, the WTO Appellate Body ruled in favor of Canada and Mexico,
finding that the COOL program impermissibly discriminated against the foreign livestock.'
1 Agreement on Technical Barriers to Trade, Marrakesh Agreement Establishing the World Trade Organization, April
15, 1994, 1867 U.N.T.S. 154 (hereinafter TBT Agreement).
2 See, e.g., Request for Consultations by Canada, U.S.-Certain Country of Origin Labelling (COOL) Requirements,
WT/DS384/1 (December 4, 2008).
3 Appellate Body Report, U.S.-COOL, WT/DS384/AB/R (June 29, 2012) (hereinafter Appellate Body Report, U.S.-
COOL); Appellate Body Report, U.S.-Tuna II, WT/DS381/AB/R (May 16, 2012) (hereinafter Appellate Body Report,
U.S.-Tuna II).
4 Pursuant to the WTO's Dispute Settlement Understanding (DSU), members may challenge any other member's trade
regulation as a violation of a WTO agreement. Dispute Settlement Understanding, Marrakesh Agreement Establishing
the World Trade Organization, Annex 2, 1869 U.N.T.S. 401 (1994) (hereinafter DSU). The first step in the dispute
settlement process requires that a member consult with the other member to see if a mutually agreeable solution to the
problem can be reached. DSU art. 4. If no mutually acceptable solution is agreed upon, a member may request to have
a WTO dispute settlement panel determine whether the measure at issue violates a WTO obligation. DSU art. 6. For
more information on the dispute settlement process, see CRS Report RS20088, Dispute Settlement in the World Trade
Organization (WTO): An Overview, by Daniel T. Shedd, Brandon J. Murrill, and Jane M. Smith.
s Request for Consultations by Canada, U.S.-Certain Country of Origin Labelling (COOL) Requirements,
WT/DS384/1 (December 4, 2008). Canada subsequently updated its request for consultations following slight changes
to the COOL program in 2009. Request for Consultations by Canada, U.S.-COOL, WT/DS384/1/Add.1 (May 11,
2009). Mexico similarly submitted a request for consultations and further amended that request. Request for
Consultations by Mexico, U.S.-COOL, WT/DS386/1 (December 22, 2008); Request for Consultations by Mexico,
U.S.-COOL, WT/DS386/1/Add.1 (May 11, 2009).
6 Appellate Body Report, U.S.-COOL.
7 Article 21.5 Appellate Body Report, U.S.-COOL, WT/DS384/AB/RW, WT/DS386/AB/RW (May 18, 2015)
(hereinafter Article 21.5 Appellate Body Report, U.S.-COOL).
Congressional Research Service 1c11173008
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Shedd, Daniel T. The World Trade Organization Agreement on Technical Barriers to Trade and Recent Food Labeling Cases, report, September 25, 2015; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc818641/m1/4/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.