WTO TBT Agreement

The agreement distinguishes three things it treats differently. A technical regulation lays down product characteristics or related processes with which compliance is mandatory. A standard is a document approved by a recognised body providing rules or guidelines with which compliance is voluntary. A conformity assessment procedure is any procedure used to determine that requirements are fulfilled — testing, inspection, certification, accreditation. The distinction between mandatory and voluntary is what allocates a measure to the first or second category, and it changes what disciplines apply.

In scope terms the disciplines run along familiar lines: technical regulations should not be more trade-restrictive than necessary to fulfil a legitimate objective; they should not discriminate against imported goods or between sources; they should be based on relevant international standards where those exist and are appropriate; members should give positive consideration to accepting other members’ regulations as equivalent and to recognising other members’ conformity assessment results; and measures should be notified and made transparent.

The two agreements are mutually exclusive and the line between them is drawn by the objective of the measure, not by its subject matter or its form. If a measure addresses the risks that the SPS Agreement enumerates — pests, diseases, additives, contaminants, toxins, disease-carrying organisms — it is an SPS measure and the SPS Agreement applies. Every other technical requirement about a product falls to the TBT Agreement.

Food labelling illustrates this well. A label requirement warning of an allergen addresses a health risk and is an SPS matter. A label requirement about the country of origin, the name of the food, or the net quantity is a consumer-information matter and is a TBT one. The same physical label can therefore carry requirements answering to two different agreements, which is unintuitive but follows directly from the objective test.

Much of what constrains agricultural trade is not about health at all. Grading and quality requirements, size and packaging rules, names that may be used for a food, organic labelling claims, and the conformity assessment behind them are all TBT territory. So is the recognition question that determines whether a test done at origin counts at destination — a matter of real commercial weight for exporters of anything that must be analysed before entry.

The agreement’s encouragement to base regulations on international standards is also part of why bodies like UNECE, ISO, and Codex matter beyond their own membership. A member regulating in line with a relevant international standard occupies a defensible position; one departing from it may have to explain why. That does not oblige anyone to adopt any standard, and members frequently do not.

• Sets no technical requirement — it disciplines how members set theirs
• Does not cover SPS measures — health-risk measures fall under the SPS Agreement
• Does not cover tariffs, valuation, origin, or subsidies — separate agreements govern those
• Creates no rights for traders — it binds members and is enforced between them
• Does not harmonise anything by itself — it encourages the use of international standards

As with the SPS Agreement, the practical position for anyone moving goods is that the TBT Agreement is background. It shapes what importing countries may require, over years and through disputes. It does nothing for a consignment held at a border for a labelling defect today, and it gives the exporter no remedy of their own.