Recalling the discussion in two previous posts (here and here), I'm still trying to sort out what I think of the issue of whether the labelling measure in U.S. - Tuna II is a "technical regulation."
The TBT Agreement defines "technical regulation" and "standard" as follows
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.
...
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.
The key difference is that for a "technical regulation" "compliance is mandatory", whereas for a "standard" "compliance is not mandatory".
I see four possible factual situations in relation to whether a labelling measure constitutes a "techncial regulation" or a "standard":
Situation 1: The labelling measure is a statute/regulation, and says that in order to sell a product, you must use the label at issue, and the label must meet the conditions set out in the statute/regulation.
Situation 2: The labelling statute/regulation says that if you want to use the label at issue, you must meet the stated conditions. However, you do not have to use a label at all in order to sell the product.
Situation 3: The labelling statute/regulation sets out certain criteria that may be used to label a product. However, you do not have to use a label at all in order to sell the product; and if you do use a label, you are not required to follow the criteria that have been identified in the statute/regulation.
Situation 4: Labelling criteria exist outside the context of a statute/regulation, having been developed by some non-governmental body.
Situation 2 is, roughly speaking, the one at issue in Tuna.
Here are some questions I have:
-- I assume that Situation 1 qualifies as a "technical regulation." Any objections there?
-- I assume that Situation 4 would generally qualify as a "standard." Any objections there?
-- In the real world, does Situation 3 actually exist?
-- Are there any other situations that I have missed?
