By Shannon Togawa Mercer

The WTO Appellate Body recently supplied us with a new development in the ever-interesting string of U.S.-Tuna trade decisions. After the appellate body’s 2012 ruling against a U.S. measure, in what is affectionately known as U.S. – Tuna II (Mexico), the U.S. was tasked with bringing its measure into conformity with WTO obligations. The Appellate Body recently reviewed U.S. revisions and found them lacking.  Some background: In 2009, Mexico challenged a U.S. “dolphin safe” labeling scheme before the WTO. The U.S. measure only allowed the “dolphin safe” label to be placed on canned tuna sold in the United States that was not the product of a suspect tuna fishing method called “setting on dolphins.” That said, the regulation only required certification of dolphin safety in the Eastern Tropical Pacific (ETP) region, functionally allowing all tuna caught by outside of the ETP to carry the dolphin safe label.  The Appellate Body took issue with the regulation under the Technical Barriers to Trade (TBT) agreement Article 2.1: First, the labeling measure had “a detrimental impact on the competitive opportunities of Mexican tuna products in the U.S. market” given that the majority of Mexican fishermen fished in the ETP; secondly, the regulation did not “even-handedly” address the risks to dolphins “arising from different fishing techniques in different areas of the ocean.” After this decision, the U.S. revised the US Dolphin Protection Consumer Information Act and implementation regulations with a new substantive requirement that other tuna products outside of the ETP get captain certification that “no dolphins were killed or seriously injured.” Vessels in the ETP are still required to provide higher levels of certification and more cumbersome documentation. The WTO found that the amended measures continue to violate the non-discrimination requirements of the TBT agreement.  

Read More

December 04, 2015

Photo Courtesy of NOAA.

By Andrew Lurié*

After more than twenty years of legal wrangling, Mexican tuna fisheries still remain unable to access the U.S. market using the Dolphin Safe label, which  is a de facto requirement for having your tuna actually sell in the U.S.  The Mexican tuna industry stubbornly continues to “set on” dolphins — exploiting the mysterious phenomenon involving tuna schooling below dolphin pods in the Eastern Tropical Pacific Ocean (ETP) by encircling the dolphins in their nets in order to catch the tuna below — leaving their tuna ineligible for the coveted Dolphin Safe label. 

Last year, the Appellate Body of the World Trade Organization (WTO) found that the Dolphin Safe labeling law—the Dolphin Protection Consumer Information Act (DPCIA)—provided “less favorable treatment” to Mexican tuna products in violation of WTO provisions.[1]  As a result, Mexico figured that the U.S. would finally be forced to relax its Dolphin Safe requirements with respect to setting on dolphins in the ETP.  However, the U.S. instead chose to amend other portions of the rules issued pursuant to the DPCIA in order to come into compliance with the WTO decision, leaving intact the prohibition on setting on dolphins.  Thus, it was no surprise that Mexico immediately denounced the U.S. compliance measure as insufficient and announced that it will pursue consultations with the U.S. in the WTO.

Read More

November 11, 2013