The Promises and Perils of the TBT Agreement: Food Quality, Food Labeling and Market Access

Perception plays an instrumental role in determining what we consider to be of high quality. The law, as a reflection of society, has the task of embodying those social perceptions at any given time. Domestic food quality legislation provides a good example of regulation reflecting consumers’ preferences. More often than not, food quality will be implemented through food labeling schemes, because food labels allow consumers to distinguish between products and thus make more informed choices. Notwithstanding the available regulatory space for domestic legislation and the undeniable extension of sovereignty invested in consumer protection laws, regulatory efforts often result in a collision with international trade obligations. As such, differing food labelling schemes can potentially impose important non-tariff barriers to trade that challenge the further liberalization of global food markets. Thus, the question that arises is whether and to what extent differences in quality perception, reflected in domestic food legislation, pose a legal threat to compliance with international trade agreements. More specifically, does the law of the World Trade Organization (WTO) promote or prevent the adoption of food labelling measures that aim at guaranteeing higher food quality standards to consumers? In particular, what is the role of the WTO Agreement on Technical Barriers to Trade (TBT Agreement) in dismantling non-tariff trade barriers posed by domestic food legislation?