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April 16, 2013

The Dolphin-Safe Label

Humane Society International

  • A pod of free-swimming dolphins. Friedman/iStockphoto

For reasons still unknown, schools of adult yellowfin tuna in the Eastern Tropical Pacific Ocean frequently swim beneath large groups of dolphins. Since 1959, tuna fishermen have used this association to target tuna schools.

Collateral damage

Once the crew of a large fishing vessel locates a group of dolphins, they lower small speedboats equipped with purse seine nets (nets that close at the top) and chase the dolphins until they are exhausted and can be herded into a tight bunch. The chase may last anywhere from 20 minutes to two hours before the fishermen finally drop a purse seine net into the water, encircling the dolphins and the tuna school beneath.

The dolphins are traumatized by the chase and engine noise, and disoriented by the net. Terrified into shock, many are unable or unwilling to escape. Historically, these dolphins were hauled aboard and later discarded, dead or dying, back into the water. Before the enactment of the U.S. Marine Mammal Protection Act in 1972, as many as half a million dolphins died every year in this carnage.

"Dolphin-Safe"—in some cases

By the late 1980s, U.S. consumer pressure led to the development of the "Dolphin Safe" label, which was adopted by the major U.S. tuna companies in 1990. The "Dolphin Safe" label promised consumers that the tuna had been caught without deliberately setting nets on dolphins. By June 1, 1994, the entire U.S. tuna fleet was dolphin-safe. The MMPA banned the importation into the U.S. of tuna caught by countries that didn't adhere to "Dolphin Safe" practices.

Despite this, dolphins continue to die needlessly in the ETP because countries such as Mexico, Venezuela, and Colombia are still setting nets on dolphins. Every year, an estimated 2,500 to 5,000 dolphins die in the ETP tuna fishery, while as many as 3 million are chased, traumatized and injured by encirclement. These dolphins may die later or suffer serious physiological damage, leading to reduced reproductive rates or shortened life spans.

A timeline of events

In the mid-1990s, Mexico threatened action against the United States on the grounds that U.S. dolphin protection laws violated the free trade requirements of the General Agreement on Tariffs and Trade (GATT), the predecessor to the World Trade Organization (WTO). The GATT panel found the U.S. embargo on tuna and tuna products inconsistent with GATT provisions; however, the panel upheld the U.S. Dolphin Safe label. The panel report was not adopted, but the issue remained, and even led to another GATT dispute in 1993 by the European Communities (EC).   

Thereafter, the United States repealed the embargo on tuna products, and in 1997, passed the misleadingly-named International Dolphin Conservation Act. This law allowed then-Commerce Secretary William Daley to redefine the MMPA and dolphin-safe fishing practices, making it legal to intentionally chase, encircle, and traumatize dolphins in purse seine nets and still label tuna caught in this manner "Dolphin Safe"—as long as an on-board observer did not report seeing any dolphins die or sustain serious injury.

The Humane Society of the United States deplored Daley's decision to weaken the standards for the label. In August 1999, The HSUS, in partnership with Earth Island Institute and others, filed a lawsuit in U.S. District Court to overturn the weakening of the "Dolphin Safe" label. In April of 2000, Judge Thelton Henderson ruled in our favor and refused to allow the government to weaken the label. Several months later, the government challenged that ruling in the U.S. Ninth Circuit Court of Appeals. But in July 2001, in a unanimous decision, the three-judge panel once again ruled in our favor. The court went on to state that Secretary Daley's move to weaken "Dolphin Safe" standards was "contrary to law and an abuse of his discretion."

The battle did not end there. There was still another opportunity for the government to weaken the label. The 1997 legislation required additional studies, which were eventually released in a report to Congress in August 2002. The Commerce Secretary was to review these studies and then decide whether to weaken the label. The studies did indeed demonstrate a continued decline in dolphin populations in the ETP; however, despite this evidence given by the government's own scientists, the Commerce Department announced a "no significant adverse impact" finding on December 31, 2002. This would have automatically weakened the "Dolphin Safe" label once more. The HSUS, Earth Island Institute and other groups challenged this decision, again charging that the evidence clearly refuted the finding.

In August 2004, U.S. Federal Judge Thelton Henderson ruled in our favor and upheld the Dolphin Safe standards, stating that the U.S. government ignored the advice of its own scientists when it attempted to weaken the label. This case went to the Ninth Circuit Court of Appeals, and again the Department of Commerce's attempt to weaken the definition of the well-known and trusted "Dolphin Safe" label was rejected in April 2007. The government allowed its time to appeal this ruling to the Supreme Court to run out; therefore, "Dolphin Safe" standards continue to prohibit chasing or netting dolphins.

In October of 2008, following the Ninth Circuit's ruling, and with no indication that the U.S. Congress would change its law, Mexico again threatened action against the U.S. at the WTO.

The U.S. and Mexico had several rounds of consultations, but failed to reach a settlement. Consequently, Mexico requested a dispute panel in March 2009 claiming that our dolphin-safe label was an unfair trade barrier. We submitted an Amicus brief in support of the lawfulness of the U.S. label, but on September 15, 2011, a WTO dispute panel released its ruling on the matter, finding that the dolphin-safe label did not comply with WTO rules. The United States appealed the adverse ruling, but again the panel ruled that our law violated WTO rules stating that it unfairly discriminated against Mexico.

The United States was required to comply with the WTO ruling. It could have dismantled U.S. law or expanded these standards to all oceans with tuna fisheries and to all countries seeking to import its tuna. Then, on April 5, 2013, the National Oceanic and Atmospheric Administration announced a proposed rule that was published in the Federal Register that enhances documentary requirements by calling for certification that no dolphins were killed or seriously injured in the nets or other gear deployments in which the tuna were caught, regardless of the fishery where the tuna was caught or the gear type. This would apply to any “dolphin-safe” claim on tuna products imported or sold in the United States.

Today, this requirement applies only to tuna caught by large purse seine vessels in the eastern tropical Pacific Ocean. The rule as proposed also imposes new requirements for canners and processors by adding additional reporting elements on the monthly receipts report. The requirements under existing U.S. law and regulations for certifications that purse seine nets were not intentionally deployed on or used to encircle dolphins would remain unchanged. "The U.S. administration made a bold and important decision that instills greater consumer confidence and protections for dolphins globally," commented HSI Vice President Kitty Block.

Read the amicus brief by HSI on the U.S. submission to the World Trade Organization on Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products [PDF].