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The WTO Agreement on Technical Barriers to Trade and Recent Food Labeling Cases
The Technical Barriers to Trade Agreement
Shortly following World War II, developed countries sought to reach a multilateral international
agreement aimed at reducing barriers to international trade. In 1947, these countries established
the General Agreement on Tariffs and Trade 1947 (GATT 1947) in order to reduce tariffs and
implement rules preventing discrimination in international trade.'8 Through this agreement, the
international community sought to liberalize trade markets and provide for a greater flow of
goods across international borders. However, in the decades following the establishment of the
GATT 1947, countries sought to further open global markets by reducing non-tariff barriers to
trade.
The international community recognized that countries frequently adopt measures that regulate a
product's characteristics, typically to protect the environment or human health, ensure the quality
of products, prevent deceptive practices, or achieve some other legitimate objective. However,
these measures can be trade-distorting, and sometimes countries implement such regulations
solely to protect domestic markets. To that end, the TBT Agreement is intended to balance the
need to protect members' regulatory autonomy with the need to prevent unnecessary obstacles to
international trade.19
The WTO members announced that they were establishing the TBT Agreement to "ensure that
technical regulations and standards, including packaging, marking and labelling requirements,
and procedures for assessment of conformity with technical regulations and standards do not
create unnecessary obstacles to international trade."20 The TBT Agreement furthers this goal by
providing a set of legal obligations that WTO members must adhere to when establishing such
measures.
The TBT Agreement applies to measures that regulate a product's characteristics.21 A measure is
covered under the TBT Agreement if it regulates on the basis of a product's intrinsic qualities,
qualities that are related to the product, or qualities that the product lacks.22 Characteristics that
are related to the product include their identification, presentation, and appearance.23 In EC
Sardines,24 for example, Peru challenged an EU regulation establishing standards for what
qualified as preserved sardines.25 The EU regulation established that only one kind of fish,
Sardina pilchardus, could be labeled for sale as "preserved sardines."26 The Appellate Body held
that this measure prescribed product-related characteristics because it conditioned the labeling of
18 General Agreement on Tariffs and Trade, preamble, October 30, 1947, 55 U.N.T.S. 194 (providing that the goals of
entering the GATT included the "substantial reduction of tariffs and other barriers to trade").
19 TBT Agreement, preamble.
20 Id.
21 See TBT Agreement Annex 1(1). Notably, however, the TBT Agreement does not apply to measures that are
otherwise covered under the WTO Agreement on Sanitary and Phytosanitary Measures, which focuses primarily on
food safety. TBT Agreement, arts. 1.3, 1.5. Sanitary and phytosanitary measures include measures applied to protect
human health from risks arising from additives, contaminants, toxins, or disease-causing organisms in food and
feedstuffs, or to protect from risks arising from diseases carried by animals or plants or from the entry of pests.
22 Appellate Body Report, EC-Measures Affecting Asbestos and Asbestos-Containing Products, 1 67,
WT/DS135/AB/R (March 12, 2001) (hereinafter Appellate Body Report, EC-Asbestos).
23 Id.
24 Appellate Body Report, EC-Trade Description of Sardines, WT/DS231/AB/R (September 26, 2002) (hereinafter
Appellate Body Repot, EC-Sardines).
25 Id. at 12.
26 Id.
Congressional Research Service 3c11173008
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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/m1/6/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.