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Vanderbilt Law Review

Marcy N. Moody

First Page

1401

Abstract

Browsing the aisles of her local grocery store, a shopper may come across a dusty unmarked bin with carrots in it. She may see a shelf of brightly colored cereal boxes touting their contents' health benefits. Elsewhere in the store may be an iced container of sustainable shrimp from Thailand with a circled blue checkmark next to it. Perhaps there are local leeks, organic okra, or eggs from free- ranging chickens. The shopper may select the cereal on the basis of its health claims, the shrimp on the basis of its environmental friendliness, or maybe just the carrot because she is sick of all this labeled nonsense.

Whatever the shopper's choices, the cacophony of product labels has probably affected her selections. Her selections, in turn, have probably affected sellers' product development and marketing choices. Indeed, in response to growing interest in "green" goods, firms are developing and marketing a multitude of new products with environment-related attributes. Many of these products bear labels that are administered by private standards and certification systems, such as MSC-certified seafood, UTZ-certified tea, Fairtrade coffee, or Rainforest Alliance chocolate. Demand has prompted firms, nongovernmental organizations ("NGOs"), and private foundations to invest hundreds of millions of dollars to support the creation and implementation of such systems. But the increase in privately administered labels is not beneficial to all. In particular, these systems often disadvantage firms that lack the resources or technical expertise to achieve compliance with environmental standards, barring them from access to the labels. One strategy that some exporting countries have used to oppose publicly administered environmental-certification and environmental-labeling systems is through suit in the World Trade Organization ("WTO"). The more widespread support for private environmental labeling becomes, the more likely it is that exporting countries may attempt to sue them in the WTO as well. When the activities of a private environmental- labeling system are subject to WTO jurisdiction, however, is an open question, and the subject of this Note.

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