What is the impact of the WTO agreement on Technical Barriers to Trade (TBT) on state regulation of lead in toys and consumer products?
The Peoples' Republic of China sent a fax transmission to the Maryland General Assembly on January 30, 2008, in which it objected to Maryland House Bill Number 8 (HB 8), a bill introduced in 2007 by Delegate Jim Hubbard. HB 8 would restrict the sale of lead-adulterated consumer products and toys in order to protect the public health and the health of children in Maryland in particular. (Del. Hubbard introduced a similar bill, HB 62, in the 2008 session of the Maryland General Assembly. (That bill is not referenced in the PRC comments.) The Chinese allege that HB 8 would violate World Trade Organization (WTO) standards under the Agreement on Technical Barriers to Trade (TBT).
The WTO TBT agreement contains various rules governing "technical regulations." The term "technical regulation" is defined as a "document which lays down product characteristics or their related processes and production methods…." The Maryland bill would constitutes a "technical regulation" because it is related to product characteristics, i.e. whether products contain lead.
Under the TBT Agreement, WTO member nations, including the United States, are required to notify other members whenever a state or provincial government such as Maryland proposes to enact a "technical regulation" that is not based on international standards and that will have a "significant effect on trade of other [WTO] Members." The notification is required to be made "at an early appropriate stage, when amendments can still be introduced, and comments taken into account." In this case, the U.S. federal government notified the WTO of the Hubbard legislation pursuant to TBT notification procedures.
The WTO notification on Maryland HB 8 cites the "protection of human life and health" as the "objective and rationale" of HB 8. Unlike several other WTO agreements, the TBT does not have a "general exception" regarding the "protection of human life and health." A country might attempt to challenge such a legislative measure by claiming that the regulation will not be implemented in the "least trade restrictive" way possible; is discriminatory against foreign commerce; does not follow international standards; gives too much discretion to regulators; etc. These are the kinds of complaints about HB8 made by the Peoples Republic of China.
The People's Republic of China (PRC) alleges that Delegate Hubbard's bill is inconsistent with a provision of the TBT Agreement, which states that "[t]echnical regulations shall not be maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade-restrictive manner."
The PRC concludes that the United States should take action "canceling the notified regulation," i.e. HB 8, or otherwise "provide relevant scientific basis for above-mentioned conditions of the technical regulation