Dolphin-Safe Tuna Isn’t Safe Anymore: WTO Rules That US Labeling Regulations for Dolphin-Safe Tuna Are Illegal

In May of 2012, the World Trade Organization (WTO) dealt a blow to consumer choice in the United States: it declared that the “dolphin-safe tuna” labels lining the shelves of grocery stores across the country are illegal because they unfairly restrict trade.[1]   The WTO appellate decision was in response to a complaint by Mexico that the US dolphin-safe tuna labels are discriminatory to Mexican-caught tuna,[2] which does not qualify for dolphin-safe labeling under Department of Commerce regulations.[3]  The US now has until July 2013[4] to remove all dolphin-safe tuna labels, amend its regulations to be less discriminatory to Mexican-caught tuna, or be subject to potential trade retaliation by Mexico.[5]  The US argued before the appellate panel that the labels are not a barrier to trade because the labels are voluntary, not mandatory, and that the Mexican tuna industry still has a substantial market in the US.[6]  The WTO appellate panel found that the labeling requirements discriminated against Mexican-caught tuna, but also finding that the labeling requirements were not more trade restrictive than necessary to further the legitimate US objectives of protecting dolphins and providing US consumers with information about whether tuna is caught using methods that do not adversely affect dolphins.[7]

In 1990, the Department of Commerce issued regulations to guide when tuna can be labeled dolphin-safe.[8]  Tuna caught using a purse-seine net or chasing and catching methods do not meet the guidelines.[9]  Because the vast majority of Mexican fishermen use these methods, they are precluded from obtaining the dolphin-safe label.[10]  The case decided by the WTO in May was not the first time Mexican fisherman complained that the US regulations on dolphin safe tuna labels were discriminatory to their products and an unfair barrier to trade: in 1991[11] and again in 1994,[12] a General Agreements on Tariffs and Trade (GATT) panel declared that although dolphin-safe and non-dolphin-safe tuna are sufficiently similar to be considered “like products”—and thus not entitled to differential treatment—the label was not a barrier to trade because it provided valuable information to consumers.[13]  

Environmentalists and organizations that value consumer choice alike considered these GATT decisions a victory; however, the recent WTO decision supersedes the GATT decisions, flips the regulatory tables upside down, and threatens to provide consumers with less information, decreasing their ability to choose products that align with their personal values.[14]  The WTO decision could potentially signal a shift toward decreasing labeling information available to consumers and jeopardizing regulations intended to protect the environment in favor of promoting the free market.[15] Indeed, more than simply dolphins may be caught by this ruling as legislators may be wary of creating labeling standards for everything from organic eggs and free range chickens, to the country of origin of your produce, clothing, or computer.[16]

 
— Erin Dykstra, Associate 


[1] Appellate Body Report, United States—Measures Concerning the Importation, Marking, and Sale of Tuna and Tuna Products, ¶ 407, WT/DS381/AB/R (May 16, 2012) [hereinafter WTO Decision].

[2] Id. at ¶¶ 1-2.

[3] Dolphin Protection Consumer Information Act, 16 U.S.C. § 1385 (2006); Dolphin Safe Tuna Labeling, 50 C.F.R. §§ 216.91-92 (2011); see Thomas G. Kelch, The WTO Tuna Labeling Decision and Animal Law, 8 J. Animal & Nat. Res. L. 121, 123-124 (2012).

[4] Appellate Body Agreement, United States—Measures Concerning the Importation, Marking, and Sale of Tuna and Tuna Products, WT/DS381/17 (Sep. 19, 2012).

[5] Tim Carman, WTO: ‘Dolphin-Safe’ Label Discriminates Against Mexico, Washington Post, May 16, 2012.  Indeed, while the results of the appellate panel decision are the same as the first panel decision, they two decisions do not share the same findingsId.  While the appellate panel found that the labeling requirements were discriminatory against Mexican-caught tuna, it did not find that the requirements were more trade restrictive than necessary.  Id.  The first panel, in contrast, found that the requirements did not discriminate against Mexican-caught tuna, but were more trade restrictive than necessary.  Id.

[6] WTO Decision, supra note 1, at ¶¶ 12-18.

[7] Tom Miles, WTO Rules Against U.S. “Dolphin Safe” Tuna, Reuters, May 16, 2012.

[8] Dolphin Safe Label Overview, dolphinsafe.gov (May 5, 2012), http://dolphinsafe.gov/Default.htm.

[9] 50 C.F.R. §§ 216.91-92 (2011).

[10] Kelch, supra note 3, at 123-124.

[11] Report of the Panel, United States—Restrictions on Imports of Tuna, DS21/R—39S/155 (Sep. 3, 1991), GATT B.I.S.D. (39th Supp.).

[12] Report of the Panel, United States—Restrictions on Imports of Tuna, DS29/R (Jun. 16, 1994), GATT B.I.S.D. (39th Supp.).

[13] Id. at ¶ 5.42, 6.1.

[14] Kelch, supra note 3, at 121, 136-137

[15] Id.; see Miles, supra note 7.

[16] See Kelch, supra note 3, at 136-137; Marcy N. Moody, Warning: May Cause Warming, 65 Vand. L. Rev. 1401,1446-46 (2012).

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