International trade law is built around the cornerstone obligation of maintaining equal competitive opportunities for imported products. WTO dispute settlement has defined the lines for this obligation as it regards discrimination through 'tangible' product attributes. Yet as consumer preferences expand to include 'intangible' product attributes, such as 'free-range' chicken, 'sustainably' produced furniture, 'fair trade' coffee or even 'dolphin safe' tuna, the stage is set for a renewed debate over how far a WTO Member can regulate in pursuit of domestic policy goals.
This article examines recent WTO jurisprudence on the use of technical regulations, and attempts to construct a generally applicable doctrine governing the prevention of deceptive practices through regulating intangible product claims. Using traditional methods of treaty interpretation, in light of economic efficiency and comparative legal analysis, it also identifies potential inconsistencies in the application of the TBT Agreement. Finally, this article offers considerations for future WTO tribunals when deciding how to more effectively balance the right to regulate intangible product attributes for the prevention of deceptive practices with the obligations and goals expressed by the TBT Agreement.Journal of World Trade