	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. 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. 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. First, to provide a basic understanding of the objectives and requirements of the TBT Agreement, this report provides a general overview of that instrument. Next, it briefly describes the regulatory programs at issue in these two WTO disputes and analyzes how the WTO's Appellate Body applied Article 2.1 in U.S. – COOL and U.S. – Tuna II . The report takes an in-depth look at the test established by the Appellate Body for determining whether a measure is impermissibly discriminatory. Finally, the report provides a brief description of how the United States amended these programs in response to the WTO decisions, and explains why subsequent WTO rulings found that the amended programs still failed to comply with international trade obligations. 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. COOL program violated Article 2.1 of the TBT Agreement.
The World Trade Organization's (WTO) Agreement on Technical Barriers to Trade (TBT Agreement) contains obligations that WTO members must adhere to when they impose requirements on a product's characteristics. Countries typically implement such requirements in order to protect human health or the environment, prevent deceptive practices, or further other legitimate policy goals. 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.
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. In two of these cases, U.S.–COOL and U.S.–Tuna II, the WTO found that the United States violated the nondiscrimination obligations contained in Article 2.1 of the TBT Agreement because the measures treated foreign products less favorably than domestic products. The Appellate Body reports from these two disputes provide insight into how the WTO applies these nondiscrimination provisions, and can provide guidance to Congress when it enacts future programs that regulate product characteristics.
First, to provide a basic understanding of the objectives and requirements of the TBT Agreement, this report provides a general overview of that instrument. Next, it briefly describes the regulatory programs at issue in these two WTO disputes before analyzing how the WTO's Appellate Body applied Article 2.1 of the TBT Agreement in U.S.–COOL and U.S.–Tuna II. The report takes an in-depth look at the test established by the Appellate Body for determining whether a measure is impermissibly discriminatory. Finally, the report provides a brief description of how the United States amended these programs in response to the WTO decisions, and explains why subsequent WTO rulings found that the amended programs still failed to comply with international trade obligations.