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The sixth recital explicitly provides that Members may take "measures necessary for, inter alia, the protection of human life or health, provided such measures 'are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination' or a 'disguised restriction on international trade' and are 'otherwise in accordance with the provisions of this Agreement.'" 72 Looking again at the object and purpose of the TBT Agreement, the Appellate Body wrote that, given that the purpose of the TBT Agreement is to "strike a balance between, on the one hand, the objective of trade liberalization and, on the other hand, Members' right to regulate," "Article 2.1 should not be interpreted as prohibiting any detrimental impact on competitive opportunities for imports in cases where such detrimental impact on imports stems exclusively from legitimate regulatory distinctions." 73 Article 2.1 of the TBT Agreement, therefore, prohibits de jure and de facto discrimination but allows detrimental impacts on imported products if those impacts arise exclusively from legitimate regulatory distinctions

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Dispos 39 (5), 814819

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