US-COOL: How the Appellate Body Misconstrued the National Treatment Principle, Severely Restricting Agency Discretion to Promulgate Mandatory, Pro-Consumer Labeling Rules

摘要

In United States-Certain Country of Origin Labeling Requirements(1) the Appellate Body (AB) of the World Trade Organization (WTO) ruled that the United States' country-of-origin labeling regulations (COOL) on beef and pork products violated the Agreement on Technical Barriers to Trade's (TBT) National Treatment (NT) Principle.(2) Aimed at promoting informed consumer choice, COOL required retailers to disclose the covered products' origin. In prior decisions under the General Agreement on Tariffs and Trade (GATT) Article III:4, the AB correctly rejected protectionist rules that unnecessarily encumbered consumer choice, while adversely effecting conditions of competition for imports. In US-COOL, however, the AB formalistically transposed such GATT jurisprudence into TBT analysis, equating private action in compliance with neutral, transparency-promoting labeling rules to private action in compliance with capricious, opacity-inducing distribution rules. This article argues that, while GATT NT-jurisprudence should enlighten analysis under the TBT, WTO adjudicators should not allow exporting Members' perceived entitlement to trade volumes which may well be premised on continued opacity and uninformed consumer choice - to interfere with importing Members' origin-neutral regulations. GEL: F13, F53, K23, K41, Q13, Q17).