Consumer Information, Marks of Origin and WTO Law: A Case Study of the United States – Certain Country of Origin Labeling Requirements Dispute

Abstract

This paper uses the recently initiated United States – Certain Country of Origin Labeling Requirements (US- Meat COOL) dispute to examine the nature of the relationship between consumer information labeling regulatory measures and the applicable WTO provisions disciplining domestic regulation. The US measure in question mandates that retailers provide consumers with information on the national origin of their food as a means of facilitating consumer choice. The US- Meat COOL case is salient to the WTO legal regime because it presents an opportunity to establish a coherent legal jurisprudence relating to measures implemented on consumer information grounds (as separate from, but closely related to, labeling measures implemented on health or environmental grounds). The legal analysis revealed that WTO law does not categorically prohibit genuinely motivated consumer information labeling measures with disparate trade effects. The treatment of measures, which are motivated by both consumer and producer interests, however, remains unclear. Further, given that many of the relevant legal provisions are largely untested, the legal outcome for all consumer choice measures is far from certain, and are equally likely to produce a finding of non-compliance with WTO obligations. In light of this uncertainty, the case study identifies several issues critical to whether the US COOL regulation and, by extension, other consumer information labeling policies are judged compliant with key WTO disciplines. In addition, the paper compares the WTO legality of the US COOL regulation under the relevant provisions with hypothetical results based on an economic efficiency criterion. This analysis reveals that under several likely legal tests net welfare-enhancing labeling regimes risk being deemed in violation of WTO law. The author argues that prohibiting efficient de facto discriminatory consumer information measures runs contrary to the theoretical underpinnings of the treaty text, and that the dispute settlement bodies should, at a minimum, seek to employ legal tests that ensure that efficient consumer information labeling measures are deemed compliant with WTO law. Finally, this paper also explores issues specific to the subset of consumer choice measures, referred to as mandatory marks of origin regulations. It includes a discussion of the historical developments that led to the inclusion of a provision addressing such measures in the original GATT structure (GATT Article IX), the interaction of this Article with other applicable provisions, and the fundamental challenge of applying national treatment obligations to measures intended to facilitate differentiation of products on the basis of national origin.