II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

Summary

Claims of Error by the United States – Appellant

1. Annex 1.1 to the TBT Agreement and the Definition of “Technical Regulation”

The United States requests the Appellate Body to reverse the Panel's finding that the measure at issue is a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement. The United States asserts that such reversal would also dispose of Mexico's claims under Article 2 of the TBT Agreement. Therefore, the United States further requests the Appellate Body to declare moot and of no legal effect the Panel's findings with respect to Article 2 of the TBT Agreement.

The United States alleges that the Panel erred in finding that the measure at issue is a “technical regulation”, because compliance with the measure is not “mandatory” within the meaning of Annex 1.1 to the TBT Agreement. The United States maintains that the Panel's interpretation of the word “mandatory” is indistinguishable from the term “requirement”. However, because the word “requirement” is used in both the definition of “technical regulation” in Annex 1.1 and in the definition of “standard” in Annex 1.2, a finding that compliance with certain labelling requirements is “mandatory” within the meaning of Annex 1.1 must be based on considerations other than the fact that a document establishes criteria for the use of a certain label.

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