By Sarah Stewart

During the 1980s, U.S. consumers let their voice be heard in support of dolphins.  They would not buy tuna that was caught using a fishing method that intentionally chased and captured dolphins.  This intentional setting on dolphins was not deemed “dolphin safe,” and thus tuna companies began to voluntarily market their tuna products as “dolphin safe” when the tuna was not caught using this method.  In 1990, Congress passed the U.S. Dolphin Safe Labeling law (16 U.S.C. § 1385), which harmonized private policies and prohibited use of the U.S. Dolphin Safe Label when dolphins are intentionally targeted to catch tuna.  

Mexico’s challenge

In October of 2008, Mexico initiated a challenge to the U.S. Dolphin Safe labeling law at the World Trade Organization (WTO) by requesting consultations with the United States. 

The move followed a ruling by the Ninth Circuit Court of Appeals in April 2007 rejecting the U.S. Department of Commerce’s finding that intentional setting on dolphins is not having a significant adverse impact on dolphin populations in the Eastern Tropical Pacific (ETP).  If upheld, Commerce’s finding would have weakened the U.S. Dolphin Safe label, in use since the 90s, to allow its use on tuna products harvested from intentional setting on dolphins if there was no observed death or serious injury. The U.S. Government did not appeal this ruling to the Supreme Court, and the weaker label never went into effect. 

Consultations failed to resolve the dispute, and in March 2009, Mexico requested that a dispute settlement panel be established to consider whether the U.S. Dolphin Safe Label is inconsistent with U.S. obligations under Article 2 of the Agreement on Technical Barriers to Trade (TBT) and Articles I and III of the General Agreement on Tariffs and Trade (GATT). 

Mexico’s argument

In brief, Mexico is arguing that its inability to use the U.S. Dolphin Safe label because of its fishing methods creates unnecessary obstacles to trade and results in less favorable treatment of Mexican tuna products when compared to tuna products of its U.S. and international competitors.  Mexico goes further to argue that the U.S. is bound to follow the international “Dolphin Safe” criteria, which does allow for the intentional chase and capture of dolphins where an observer is present.

The U.S. label does not single out Mexico however, and applies equally to all countries fishing in the ETP.  A weaker version of the label that would allow for intentional setting on dolphins is not supported by science, and would not achieve the law’s goals of dolphin conservation and consumer protection.   Moreover, the label is voluntary – countries can choose to abide by the label’s criteria or not and still continue to freely export tuna and/or tuna products to the U.S.  Indeed, Mexico exports millions of dollars of tuna products to the U.S. each year.  For more discussion, see our comments to the United States Trade Representative. 

The beginning of the briefing process

In December 2009, a panel was established and the briefing process began.  A panel report is expected in late 2010 or early 2011.  This dispute is important because it will examine how voluntary product labeling is compatible with WTO free trade requirements, a particularly timely issue given the movement towards environmentally friendly, organic, and humane products.  It is most important to the dolphins of the ETP now.