For the key obligations in Article 2 of the TBT Agreement to apply to a regulation, it must meet the definition of “technical regulation” in Annex 1.1. According to the Appellate Body, a document must meet three criteria to fall within this definition: (1) The document must apply to an identifiable product or group of products. The identifiable product or group of products need not, however, be expressly identified in the document. (2) The document must lay down one or more characteristics of the product. These product characteristics may be intrinsic, or they may be related to the product, for example to the means of identification, presentation, and appearance of the product. They may be prescribed or imposed in either a positive or a negative form. (3) Compliance with the product characteristics must be mandatory.
The mere fact that it is legally permissible to sell a product on the market without using a particular label is not determinative when examining whether a measure is a “technical regulation” within the meaning of Annex 1.1. The subject matter of a particular measure does not determine whether it constitutes a technical regulation or a standard, since terminology, symbols, packaging, marking, and labeling requirements may be the subject matter of either technical regulations or standards. Certain features may be common to both technical regulations and standards, such as compulsory and enforceable conditions that must be met in order to use a label. Thus, it is necessary to consider additional characteristics of the measure, such as whether the measure consists of a law or a regulation enacted by a WTO Member, whether it prescribes or prohibits particular conduct, whether it sets out specific requirements that constitute the sole means of addressing a particular matter, and the nature of the matter addressed by the measure. These factors would be relevant in determining whether carbon labels are subject to the obligations in Article 2 of the TBT Agreement, for example. Annex 1.1 permits the document to set out “related processes and production methods” or to “deal exclusively with . . . labelling requirements as they apply to a product, process or production method.” PPM labels are covered by the TBT Agreement.
-  Appellate Body Report, EC—Asbestos para. 59; Appellate Body Report, EC—Sardines para.175; Appellate Body Report, US—Tuna II (Mexico); Appellate Body Report, US—COOL; AppellateBody Report, US—Clove Cigarettes.
-  Appellate Body Report, EC—Asbestos.
-  Appellate Body Report, EC—Sardines para. 176.
-  Appellate Body Report, US—Tuna II (Mexico) paras. 196—8.
-  Appellate Body Report, US—Tuna II (Mexico) paras. 187—8.
-  Panel and Appellate Body Reports, US—Tuna II (Mexico).