The Environment Labels Under TBT Agreement

The fast development of science and technology on one hand brings to us the expansibility of international trade and satisfaction of public’s material demands; on the other hand, it has seriously destroyed our ecological environment. The worsening living environment not only endangers the life of animals and plants, but also exposes the health and life of human beings to risks, so that more and more attention has been placed on environmental protection, especially in developed countries. In order to prevent further deterioration, many governments spent a lot of funds on environmental governance. The manufacturers and retailers are keen to grasp the opportunity of the burgeoning demand of “green consumption”, placing their advertising focus of the products on its eco-friendly characteristics so as to improve the sales. The spread of various of environmental labels in the market has confused the consumers who are without capability to identify, therefore the scientific and efficient management on the business conducts are called for. The states then take this opportunity to set up their own environmental label system so as to assist and encourage the consumers to choose the real “green products”. Furthermore, such system could stimulate the initiatives of the manufacturers to research and develope environmentally friendly production methods.Inducing environmental labels is one of the green barriers to trade. Since the issues on environmental protection entered into public attention, the impact of non-tariff obstacles built by the WTO Members on the world trade has increasingly obvious, so that the WTO, the largest multilateral trade organization in the world, has the responsibility to manage the conducts of its members to ensure the development of free trade. Generally, according to the definitions in the Agreement on the Technical Barriers to Trade(TBT Agreement), measures adopted by the states for non-trade purposes could be deemed as the technical measures. This means that environmental policies implemented by the states are closely related to the TBT Agreement, and the study on the TBT Agreement in depth is absolutely necessary. Besides, such study could help the Members take advantage of their market impact to realize their environmental protection purpose better.The Appellate Body(AB) of WTO subsequently dealt with three noticeable disputes concentrating on the issues of substantial provisions under TBT Agreement. Undoubtedly, the reports of the US – Clove Cigarettes, US- Tuna II, and US-COOL afforded a favourable occasion to clarify the substantive obligations mainly concerned by the Members. The small number of cases involving TBT Agreement before the Dispute Settlement Body(DSB) does not provide the AB with enough opportunities to interpret the application of provisions, so the uncertainty of obligation has continuously afflicted the WTO members, so that these three disputes mentioned above have considerably great significance in clearing the attitudes of the WTO on the technical measures so as to reduce the operating risks of such measures to some degree.The US – Clove Cigarette caused by the implementation of the Family Smoking Prevention and Tobacco Control Act 2009, in which the flavored cigarettes are prohibited to sell in US in order to cut youth smoking and contribute to the public health. However, the menthol cigarettes are not in the list of prohibition, and US could not provide enough evidence to prove appeal of the menthol cigarettes to the youth is less than that of the clove cigarettes, so that such Act was regarded as violation of the non-discrimination principle. In the US – COOL, the CertainCountry of Origin Labeling system designed by United States requires strict records on the place of behavior occurred. For the producers, distributors and retailers, such requirements would not only be really burdensome and greatly improve the costs of selling imported beef in the domestic market as well, so that the foreign beef is being squeezed out stepwise. The US argued that such original label is necessary to prevent the consumers’ right to know. Based on the detailed analysis, it is not difficult to find that the categories of labels could not reach the purpose of the US, providing the information that the consumers shall know. However, the substantial increase in cost could indeed provide more business opportunities to domestic beef. The US – COOL, to some extent, reflects the characteristics of the technical measure, such as the difficulties to notice its potential violation. The famous “Dolphin safe” label has attracted the attention of the public again, since the related rules in US have been changed and the tuna fish caught by Mexico would not be allowed to use the certain label in the US market. The AB delivered its opinion that the standards set by US lacks enough scientific research, and it could not prove their rules are applied in a fair and equitable way.Purporting to the reports delivered by the AB, the control of the WTO on its Members’ conducts is realized by the strict scrutinization under non-discriminatory principle. At the same time, to express its respect to the inherent right of the sovereignties, the WTO would not appropriately interfere the non-trade concern of the Members and the right of taking actions. The technical measures taken by the Member to pursue legal purposes shall be backed by the enough scientific proof. From this perspective, the principal of balancing the conflict of environmental policies and free trade is to ensure the justifiable application of the certain measures. China, as an emerging large trading power, has placed more emphasis on the domestic environmental labels. In recent year, the products covered by the labeling system have been expanded fast, and our system is becoming increasingly mature. However, from the perspective of implementation effects, our labeling mainly serves the export trade through pursuing international reorganization, which could effectively reduce the obstacles during international trade. Another function of theenvironmental labels, guiding consumers to choose eco-friendly products in the market, has not be fully achieved. This paper attempts to give some useful suggestions to the environmental labels in China by combining our national conditions and the implications from the aforementioned reports on TBT disputes.