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Wider impacts of WTO ruling on US–Mexico “dolphin-safe” tuna label dispute

September 12, 2013

The USMexico dispute over Washingtons dolphin-safe label reached another milestone after the WTOs Appellate Body ruled last May that the US dolphin-safe label was inconsistent with international trade rules, discriminating unfairly against Mexican tuna products. Eligibility criteria for the US label, established by the Dolphin Protection Consumer Information Act, and implemented by the Earth Island Institute (EII), include banning the use of the label for tuna caught by deliberately chasing and encircling dolphins with purse seine nets. This is a technique used almost exclusively by Mexican tuna fishers operating in the Eastern Tropical Pacific, making Mexican tuna ineligible for the dolphin-safe label.

Most interesting is that the WTO sided with the arguments of dolphin protection groups, criticising the low standards used vis--vis non-Mexican products rather than the high standards used for Mexican products. They suggested raising standards across the board, rather than lowering standards for Mexican products. WTO judges particularly stressed that the current dolphin-safe labelling system implemented by the EII was unable to guarantee that non-Mexican products, eligible for the label, were actually caught in a dolphin-safe manner. WTO judges specifically emphasised that additional regulation for fishing methods such as the use of fish aggregating devices (FAD) was needed, as their use permitted under the dolphin-safe label may result in substantial dolphin by-catch.

In mid July, the USA presented new changes introduced to strengthen their dolphin-safe labelling programme, including that captains and approved observers would, from now on, be required to certify that no dolphins were killed or seriously injured during fishing operations outside of the Eastern Tropical Pacific region, a requirement not previously existing. In their view, this will make the dolphin-safe labelling programme compliant with the WTO ruling. However, Mexico already reacted saying that the changes do not go far enough toward meeting the WTO ruling. If this were confirmed by the WTO, Mexico could impose trade counter-measures against the US, such as the suspension of benefits in various production sectors.

Observers have commented that this WTO ruling on the dolphin-safe label case the first ever ruling on a product labelling scheme will impact upon product labels and standards around the world. The International Centre for Sustainable Trade and Development emphasises that WTO acceptance of the USA national policy objective to ensure that its domestic market does not encourage fishing methods that harm dolphins has a landmark character.