Document 6z32bn4z6LbjqDRGBa2oQOgR

Page 32 health risk9 arising from the physical properties of a product does not prevent a measure which is inconsistent with Article III: -4 from being justified under Article XX(b). We note, in this regard, that, different inquiries occur under these two very different Articles. Under Article III:4, evidence relating to health risks may be relevant in assessing the competitive relationship in the marketplace between allegedly "like" products. The same, or similar , evidence serves a different purpose under Article XX(b), namely, that of assessing v/hether a Member has a sufficient basis for "adopting or enforcing" a WTO-inconsisstent measure on the grounds of human health. *34 116. We, therefore, find that the Panel errred, in paragraph 8.132 of the PaneH Report, in excluding the health risks associatecd with chrysotile asbestos fibres from its examination of the physical properties of that product. 117. Before examining the Panel's findings under the second and third criteria, we note that these two criteria involve certain of the key elements relating to the competitive relationship between products: first, the extent to which products are capable of performing the same, or similar, functions (end- uses), and, second, the extent to which consumers are willing to use the products to perform these functions (consumers' tastes and habits). Evidence of this type is of particular importance under Article III of the GATT 1994, precisely because that provision is concerned with competitive relationships in the marketplace. If there is - or could be - no competitive relationship between products, a Member cannot intervene, through internal taxation or regulation, to protect domestic production. Thus, evidence about the extent to which products can serve the same end-uses, and the extent to which consumers are - or would be - willing to choose one product instead of another to perform those end-uses, is highly relevant e-vidence in assessing the "likeness" of those products under Article 111:4 of the GATT 1994. 118. We consider this to be especially so in cases where the evidence relating to properties establishes that the products at isstje are physically quite different. In such cases, in order to overcome this indication that products are not "like", a higher burden is placed on complaining Members "to establish that, despite the pronounced physical differences, there is a convjpetitive relationship between the products such that all of the evidence, taken tegether, demonstrates that the products are "like" under Article 111:4 of the <3ATT 1994. In this case, where it is clear that the fibres have very different properties, in particular, because chrysotile is a known carcinogen, a very heavy Iburden is placed on Canada to show, under the second and third criteria, that the cHirysotile asbestos and PCG fibres are in such a competitive relationship. 119. With this in mind, we turn to the Panel' s evaluation of the second criterion , end-uses. The Panel's evaluation of this criterion is far from comprehensive. First , as we have said, the Panel entwined its analysi s of "end- uses" with its analysis o f "physical properties" and, in purporting to examine "end-uses" as a distinct criterion, essentially referred to its analysis of "properties". [FN97] This makes it difficult to assess precisely how the Panel evaluated the end-uses criterion. Second, the Panel's analysis of end-uses is basod on a "small number of applications" for which the products are substitutable. Indeed, the Panel stated that "[i]t suffices that, for a given utilization, the properties are the same to the extent that one product can replace the other'. " [FN9S] (emphasis added) Although we agree that it is certainly relevant that products have similar end-uses for a "small number of ... applications", or even for a "given utilization", we think that a panel must also examine the other, different -end-uses for products. [FN99] It is only by forming a complete picture of the varicus end-uses of a product that a pane 1 can assess the significance of the fact that products share a limited number of end-uses. In this case, the Panel did not provi <3e such a complete picture of the various end-uses of the different fibres. The P-anel did not explain, or elaborate in any way on, the "small number of ... applications" for which the various fibres have