One interesting part of the recent Tuna-Dolphin panel report is the different views of the panelists on whether the U.S. dolphin-safe labelling measure is a "technical regulation" under the TBT Agreement. The panel majority found that the the measure is a "technical regulation"; the dissenter would have found that it is not.
A key issue was the distinction between "technical regulations" and "standards." The TBT Agreement defines these terms as follows:
ANNEX 1: TERMS AND THEIR DEFINITIONS FOR THE PURPOSE OF THIS AGREEMENT
...
1. Technical regulation
Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.
Explanatory note
The definition in ISO/IEC Guide 2 is not self-contained, but based on the so-called "building block" system.
2. Standard
Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.
Explanatory note
The terms as defined in ISO/IEC Guide 2 cover products, processes and services. This Agreement deals only with technical regulations, standards and conformity assessment procedures related to products or processes and production methods. Standards as defined by ISO/IEC Guide 2 may be mandatory or voluntary. For the purpose of this Agreement standards are defined as voluntary and technical regulations as mandatory documents. Standards prepared by the international standardization community are based on consensus. This Agreement covers also documents that are not based on consensus.
Here are some brief excerpts from the panel majority's reasoning in relation to this distinction:
7.107 Taking the terms of Annex 1.1 in their context, we also note that the subject-matter of a "technical regulation" and the subject-matter of a "standard" are defined in very similar terms, and it is essentially their "not mandatory" or "mandatory" character that distinguishes the two categories of instruments. For instance, labelling requirements may be equally prescribed by technical regulations and standards. However, while technical regulations may prescribe such requirements in a compulsory fashion, standards would only do so on a "not mandatory" basis. This difference is expressed by the words "with which compliance is mandatory" in the definition of a "technical regulation" in Annex 1.1 and the opposite language, i.e. "with which compliance is not mandatory" (emphasis added), in the definition of a "standard" in Annex 1.2.
...
7.109 Against this context, the Panel is mindful of the fact that the term "mandatory" expresses the single characteristic that defines the key conceptual distinction between two of the three types of measures covered under the TBT Agreement (technical regulations and standards) and therefore plays a central role in preserving the balance between the different sub-regimes coexisting within that Agreement...
7.111 In sum, we consider that compliance with product characteristics or their related production methods or processes is "mandatory" within the meaning of Annex 1.1, if the document in which they are contained has the effect of regulating in a legally binding or compulsory fashion the characteristics at issue, and if it thus prescribes or imposes in a binding or compulsory fashion that certain product must or must not possess certain characteristics, terminology, symbols, packaging, marking or labels or that it must or must not be produced by using certain processes and production methods. By contrast, compliance with the characteristics or other features laid out in the document would not be "mandatory" if compliance with them was discretionary or "voluntary".
Here's the dissent:
7.150 According to the ordinary meaning of the term, labelling requirements are requirements that must be fulfilled in order to be allowed to use a certain label. Any labelling scheme foresees such requirements – in fact, if such requirements would not exist and if a certain label could be used independent of whether specific requirements are fulfilled, the label would become meaningless. Labelling schemes can be compulsory when the use of a certain label is compulsory to access the market, or they can be voluntary when products can be marketed with or without the label. But "labelling requirements", i.e. the requirements that are formulated to allow the use of a label, must be met also within a voluntary labelling scheme. However, in difference to a compulsory labelling scheme, within a voluntary scheme products have not to be labelled and have not to fulfil these labelling requirements in order to be marketed, they can also be put on the market without that label and without fulfilling these labelling requirements. In a voluntary labelling scheme, labelling requirements are thus not mandatory for marketing products.
7.151 Both Annex 1.1 and Annex 1.2 refer to labelling requirements. Labelling requirements can thus be technical regulations or standards. The criteria whether labelling requirements are a technical regulation or a standard relates to the fact whether compliance is mandatory or not. In order to give any sense to the term "labelling requirement" as used both in Annex 1.1. and 1.2, the requirement that compliance is mandatory cannot relate to the obligation to meet certain requirements to be allowed to use the label, but to the question whether a labelling scheme is compulsory – i.e. whether products must use a label in order to be marketed – or voluntary – i.e. products may be marketed with or without the label. ...
After all those long quotations, I'm not sure how many people are still with me, but here's my attempt at putting the two views in some less "technical" (pun intended) language:
Panel majority
An enforceable statute, regulation, etc. that governs labelling of a product is a "technical regulation." That is, where a measure sets out binding rules for when a label can or cannot be used, it's a technical regulation. This is true regardless of whether use of the label is required in order for the product to be sold.
While the panel majority didn't get into what a "standard" would look like in the context of labelling, presumably it would be some type of government action that need not be followed (e.g., if the government simply requests that the labelling rules in question be followed), or perhaps it would be where the labelling scheme comes from an international organization without any national government involvement.
In Tuna, in the panel majority's view, the labelling measure was enforceable (in the sense that in order to use the label, you must follow the labelling rules), and thus it was a technical regulation. (see paras 7.100-145)
The dissenter
For the dissenter, a labelling measure is only a "technical regulation" if it is compulsory, in the sense that you can't sell your product without the label on it. By contrast, if the label is optional, and you need not use the label in order to sell the product, the labelling measure is a "standard."
In Tuna, the dissenter said, there was no need to use the dolphin-safe label in order to sell the product, so it was just a standard. (see paras. 7.146-188)
Have I got that about right? Any thoughts on the substance of this issue?
