In a new paper, Peter Fitzgerald is skeptical of a GATT Article XX(a) "public morals" defense being successfully invoked by the EU as a justification for its seal products ban. Here's a key excerpt:
Moreover, since import prohibitions are among the most trade disruptive measures possible, the scrutiny applied to the necessity of such a ban, as compared any reasonably available alternatives, is quite high. In this case a labeling or certification scheme distinguishing between humane and inhumane methods of culling seals would be much less disruptive to trade than the import ban. ...
While essentially closing the EU market to seal products logically contributes to a reduction in cruel killings, a labeling scheme addressing humane hunting techniques might equally contribute to the aim discouraging cruel killing methods—and would certainly be less disruptive to trade than a ban which makes no distinctions among culling methods. The question is whether the labeling or certification alternative is reasonably available or actually too impracticable or too costly. Given the emphasis the Appellate Body placed upon providing data to support such claims in China-AV Products, the DSB might well scrutinize any claimed inability to use a labeling or certification alternative quite closely, especially since a form of labeling is used for the products which are exceptionally permitted into the EU market under Regulation No. 737/2010.
He raises this issue in the context of Article XX(a), but it could also arise under TBT Agreement Article 2.2.