VII - ARTICLE 2.2 OF THE TBT AGREEMENT

Summary

301. We turn next to the United States' appeal of the Panel's finding that the measure at issue is more trade restrictive than necessary to fulfil the legitimate objectives pursued by the United States, and that, therefore, the measure is inconsistent with Article 2.2 of the TBT Agreement. The United States alleges that the Panel erred in its application of Article 2.2 of the TBT Agreement and failed to make an objective assessment of the matter before it as required pursuant to Article 11 of the DSU. Mexico raises a conditional other appeal with respect to the Panel's finding under Article 2.2 of the TBT Agreement.

The Panel's Findings

302. The Panel concluded that the measure at issue is inconsistent with Article 2.2 of the TBT Agreement, because it is more trade restrictive than necessary to fulfil the legitimate objectives pursued by the United States, taking account of the risks non-fulfilment would create. This conclusion is based on a number of intermediate findings by the Panel. First, the Panel assessed the United States' objectives based on the description of those objectives by both parties, as well as on the basis of the design, structure, and characteristics of the measure at issue, and found the objectives to be the following:

(a) “ensuring that consumers are not misled or deceived about whether tuna products contain tuna that was caught in a manner that adversely affects dolphins” (the “consumer information objective”); and

(b) “contributing to the protection of dolphins, by ensuring that the US market is not used to encourage fishing fleets to catch tuna in a manner that adversely affects dolphins” (the “dolphin protection objective”).