V - ARTICLE 2.1 OF THE TBT AGREEMENT

Summary

Introduction

254. Canada and Mexico claimed before the Panel that the COOL measure is inconsistent with the United States' national treatment obligation under Article 2.1 of the TBT Agreement. The Panel found that “the COOL measure, [particularly] in regard to the muscle cut meat labels, violates Article 2.1 because it affords imported livestock treatment less favourable than that accorded to like domestic livestock.” The United States appeals this finding, as well as the Panel's intermediate conclusion that “the COOL measure on its face accords different treatment to imported livestock”. The United States also asserts that the Panel acted inconsistently with its duties under Article 11 of the DSU in reaching certain factual findings on which, according to the United States, the Panel's legal conclusions under Article 2.1 are based.

255. In addressing the United States' appeal, we first briefly describe the Panel's findings under Article 2.1, followed by a summary of the United States' claims on appeal. We then provide an interpretation of the “treatment no less favourable” requirement of Article 2.1 of the TBT Agreement, followed by a review of the Panel's findings, in the light of the participants' arguments.

Summary of the Panel's Findings

256. In examining the consistency of the COOL measure with Article 2.1 of the TBT Agreement, the Panel first found that the COOL measure is a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement, because it is “mandatory”, applies to an identifiable product or group of products, and, by imposing a country of origin labelling requirement, lays down one or more product characteristics.