Document aBnm2EGXmZ679eXvGQYBpoz2M

Page 35 inquiry into the physical properties of a product when making a determination of "likeness" under Article III:4 of the GATT 1994. [FN113] This is also true for cement-based products containing the different fibres. In examining the physical properties of the two sets of cement-based products, it cannot be ignored that one set of products contains a fibre known to be highly carcinogenic, while the other does not. [FN114] In thi_s respect, we recall that the Panel concluded that "there is an undeniable public health risk in relation to chrysotile contained in high-density chrysotile-cement products." [FN115] We, therefore, reverse the Panel's finding, in paragraph 8.149 of the Panel Report, that these health risks are not relevant in examining the "likeness" of the cement-based products. 129. Furthermore, the Panel did not indicate whether or to what extent the incorporation of one type of fibre, instead of another, affects other physical properties of a particuL ar cement-based product and, consequently, affects the suitability of that product for a specific end-use. The Panel noted that the fibres give the products their specific function - "mechanical strength, resistance to heat, compression, etc." - but the Panel did not examine the extent to which the presence of a particular- fibre affects the ability of a cement-based product to perform one or more of these functions efficiently. [FN116] *38 130. In addition, even if the cement-based products were functionally interchangeable, we consider it likely that the presence of a known carcinogen in one of the products would have an influence on consumers' tastes and habits regarding that product. We believe this to be true irrespective of whether the consumer of the cement-t>ased products is a commercial party, such as a construction company, or is an individual, for instance, a do-it-yourself ("DIY") enthusiast or someone who owns or lives or works in a building. This influence may well vary, but the possibility of such an influence should not be overlooked by a panel when considering the "likeness" of products containing chrysotile asbestos. In the absence of an examination of consumers' tastes and habits, we do not see how the Panel could reach a conclusion on the "likeness" of the cement-based products at issue. [FN117] 131. For all of these reasons, we reverse the Panel's conclusion, in paragraph 8.150 of the Panel Repor-t, "that chrysotile-fibre products and fibro- cement products are like products within the meaning of Article 111:4 of the GATT 1994." 132. As we have reversed the Panel's findings that chrysotile asbestos fibres and PCG fibres are "like products" under Article 111:4 of the GATT 1994, and also the Panel's findings that cement-based products containing chrysotile asbestos fibres and cement-based product s containing PCG fibres are "like products" under that provision, we also reverse, in consequence, the Panel's conclusion, in paragraph 8.158 of the Panel Report, that the measure is inconsistent with Article III:4 of the GATT 1994 as this finding rests, in part, on the Panel's findings that the two sets of products are "like". E. Completing the "Like Product" Analysis under Article III:4 of the GATT 1994 133. As we have reversed both of the Panel's conclusions on "likeness" under Article III:4 of the GATT 1994, we think it appropriate to complete the analysis, on the basis of the factual findings of the Panel and of the undisputed facts in the Panel record. We have already examined the meaning of the term "like products", and we have also approved the approach for inquiring into "likeness" that is based on the Report of the Working Party in Border Tax Adjustments and that was also approved, though not ent irely followed, by the Panel in this case. Under that approach, the evidence i s to be examined under four criteria: physical properties; end-uses; consumers' tastes and habits; and tariff classification.