What struck me the most reading the recent AB report on COOL, is how, for the third time in a row, the AB found a violation of discrimination (under TBT Art. 2.1), but shied away from finding the measure “more trade restrictive than necessary” (pursuant to TBT Art. 2.2).
In Cloves and Tuna, as well, the AB found discrimination -- between clove and menthol cigarettes, and between ETP and non-ETP tuna, respectively -- but no violation of TBT Art. 2.2 (in COOL the AB found that it could not "complete the analysis" under Art. 2.2).
In Cloves, discrimination was probably the main issue in dispute: If your problem is flavored cigarettes and how they might attract young smokers, what justifies banning (mainly Indonesian) clove cigarettes but not (mainly US) menthol cigarettes? In Tuna, discrimination was already less central to the case: Mexico was not so much complaining about differential treatment between ETP and non-ETP tuna, but rather about the US granting a dolphin-safe label to some ETP tuna (caught without “setting on dolphins”) but not other (mainly Mexican) ETP tuna (caught with a monitor on board). By finding discrimination between ETP and non-ETP tuna, the AB avoided to address the crux of this dispute head-on.
In COOL, finally, the matter of discrimination between imported and US meat seems even less obvious or central to the dispute. Of course, requirements on labels of origin will, almost by definition, lead to imported meat being processed and labeled differently and will, in most cases, nudge a good deal of retailers to opt for domestic meat, if only to keep things simple. Yet, if one assumes that providing consumers information on country of origin is a legitimate goal (as the AB found), then these consequences are somewhat unavoidable and the problem with COOL is not so much one of discrimination (TBT Art. 2.1) but rather whether the labeling requirements are more trade restrictive than necessary (TBT Art. 2.2).
Ultimately, what the AB faulted COOL on was not so much origin-based discrimination but rather the fact that, irrespective of the origin of the meat, “the informational requirements imposed on upstream producers under the COOL measure are disproportionate as compared to the level of information communicated to consumers through the mandatory retail labels” (para. 347).
This “disproportionality” was, in turn, labeled as not being “even-handed” which, in turn, was labeled as “arbitrary and unjustifiable discrimination” which, ultimately, led the AB to conclude that COOL’s detrimental impact on imports did not “stem exclusively from a legitimate regulatory distinction” (para. 349).
Is this “disproportionality” really a matter of discrimination between Canadian and US meat? Or rather a question of necessity/proportionality of the measure as a whole? Is the AB thereby putting too much into Art. 2.1, including elements that one would have expected to be analyzed under Art. 2.2? Why does the AB feel so much more at ease under Art. 2.1 (discrimination) than under Art. 2.2 (necessity)?
For complainants, is the claim of choice now Art. 2.1 (discrimination): It suffices to demonstrate a “detrimental impact on imports” and the burden shifts to the regulating country to show that its measure “stems exclusively from a legitimate regulatory distinction”, i.e., is “even-handed”. If this “even-handedness” is about the measure as a whole (e.g. are the recordkeeping and verification requirements imposed on producers disproportionate to the information ultimately conveyed to consumers) what is it, in effect, that TBT Art. 2.2. (and its rather convoluted “weighing and balancing exercise”) contributes?
In sum, especially after COOL, what is now the line between Articles 2.1 and 2.2?
As always, written in my personal, academic capacity.