On May 16, 2012, a twenty-year old tuna-dolphin dispute culminated with the World Trade Organization (WTO) Appellate Body (AB) ruling that the U.S’s dolphin safe labeling program discriminates against Mexican tuna imports, violating the WTO Agreement on Technical Barriers to Trade (TBT). As a threshold matter, Mexico claimed that the labeling regime was a mandatory technical regulation of a process or production method (PPM). There was no question that the labeling requirements applied to a PPM rather than a product, the controversial aspect of the claim was the voluntary versus mandatory distinction. The distinction matters because mandatory technical regulations, subject to article 2 of the TBT Agreement, undergo much more WTO scrutiny than voluntary standards, subject to article 4. Mexico argued that the labeling scheme was mandatory because it restricts retailers, consumers, and producers to a single acceptable label that indicates whether a tuna product was produced in a dolphin-friendly manner.
The U.S. disagreed with Mexico, arguing that labeling schemes are mandatory only if “there is a requirement to use a particular label in order to place a product for sale on the market.” This was not a requirement under the tuna-dolphin labeling regime. The U.S. also argued that the label’s exclusivity, which does not permit other dolphin-related labels to be placed on tuna cans, is not a factor listed in the TBT Agreement as distinguishing technical regulations from voluntary standards.
The AB addressed this controversial threshold issue by affirming the lower panel’s decision, concluding that the labeling scheme was a mandatory technical regulation. The AB’s analysis provides a specific list of factors that “may” be considered when assessing a measure: “whether the measure consists of a law or a regulation enacted by a WTO Member, whether it prescribes or prohibits particular conduct, whether it sets out specific requirements that constitute the sole means of addressing a particular matter, and the nature of the matter addressed by the measure.” The basis for these factors, however, is not found within the text of the TBT. Ironically, the only factor considered non-determinative by the AB, whether the measure is “compulsory” or “enforceable,” is the only distinguishing factor between standards and regulations that is explicitly included in the TBT text.
The AB’s analysis relies on two critical facts in this case. First, the label measure “sets out a single and legally mandated definition of a ‘dolphin-safe’ tuna product.” Second, the measure “disallows the use of other labels on tuna products that do not satisfy” the Dolphin Protection Consumer Information Act (DCPIA) standard. This second factor—“set[ting] out specific requirements that constitute the sole means of addressing a particular matter”—drew the most weight in the AB’s analysis. The AB emphasized that the labeling scheme “cover[ed] the entire field of what ‘dolphin-safe’ means in relation to tuna products in the United States.” After addressing this threshold issue, the AB analyzed whether the dolphin safe technical regulation violated the TBT.
The AB held that the U.S. measure only violated article 2.1 of the TBT, the like products provision. This provision prohibits technical regulations from discriminating against like products from other nations. In its analysis, the AB undertook a two-step inquiry. First, it found that the labeling scheme discriminated against Mexico by modifying the conditions of competition in the US market for ETP tuna. Then, the AB held that the different PPM requirements imposed on ETP tuna were not a legitimate regulatory distinction, because while the U.S. measure addressed adverse effects from setting on dolphins in the ETP, it did not address dolphin deaths arising from other fishing methods outside the ETP. In arriving at this conclusion, the AB disregarded the U.S.’s evidence suggesting that a stricter, resource-conscientious, and focused approach in the ETP was justifiable because of the increased likelihood of dolphin mortality in the ETP.
The U.S. has agreed to implement the AB report no later than July 13, 2013. After this time, Mexico may be able to institute trade sanctions or penalties for non-compliance. In response to the AB report, it is important for the U.S. to strengthen its dolphin safe label requirements to send a message to future eco-label challengers.
Mexico will likely urge the U.S. to adopt one of two approaches. It could ask the U.S. to eliminate ETP-specific dolphin safe labeling requirements, including: the certified independent observer requirement; additional exporter, importer, and processor verifications; and all of the special verification regulations promulgated by the Secretary. Alternatively, Mexico could take a second approach, asking the US to permit the dolphin-safe label to be used when either DPCIA or the Agreement on the International Dolphin Conservation Program (AIDCP) standards are met. This modification to the labeling scheme would likely remove the DPCIA standards from the AB’s interpretation of a mandatory technical regulation subject to article 2.1 of the TBT agreement, given the AB’s emphasis on the label’s current exclusivity. In the past, the U.S. has considered using AIDCP as the standard, but it rejected it because it permits dolphins to be “chased, encircled, injured, pulled onto a boat and dumped back in the ocean,” as long as it is not seen dying on the boat or in the net.
Both of these approaches are unacceptable because they water-down the carefully crafted dolphin safe label requirements in the ETP. Instead of accepting either of Mexico’s likely proposed solutions, the U.S. should take this opportunity to reaffirm its environmental commitment by strengthening the current dolphin safe label requirements. Any other message will indicate that WTO challenges to eco-labeling schemes, even if they have broad consumer support, are an effective way to trample over a nation’s environmental law, policy, and natural domestic market forces.
In crafting a stronger labeling scheme, the U.S. must ensure that it corrects the article 2.1 TBT discrimination violation addressed in the AB report. At the root of the violation was a missing provision in the DPCIA addressing “observed mortality, and any resulting adverse effects on dolphin populations” for tuna caught outside the ETP by setting on dolphins or with high seas driftnets. An amendment to the DPCIA either adding a certified observer requirement or a vessel captain’s acknowledgment for observed dolphin-mortality or adverse effects would comply with AB report. Whichever approach the U.S. chooses, it would need to ensure that ETP and non-ETP labeling requirements aligned, to address the AB’s even-handed treatment concern. The problem with permitting self-verification through a vessel’s captain in the ETP is the risk of fraud and deceit, given the high likelihood of dolphin mortality in the ETP and the low chances of detection. Alternatively, the problem with requiring certified independent observers on ships in and outside of the ETP is high costs. Neither of these problems is insurmountable and the U.S. could legitimately undertake either approach.
If the U.S. chooses to permit self-verification from a vessel’s captain, it could add additional verification requirements like those currently required for ETP vessels pursuant to the DPCIA. For example, an amendment could require that the captain’s written verification be accompanied by a written statement executed by: the Secretary of Commerce (or his designee); or a representative of the Inter-American Tropical Tuna Commission; or an authorized representative of a participating nation whose national program meets the requirements of the International Dolphin Conservation Program; or the exporter, importer, and processor of the product. The amendment could also expand and strengthen the liability provision for intentionally providing false verification. Such a system could establish additional verification at minimal cost to the US. There are many financing mechanism that the U.S. could consider if it choose to require independent observers on ships both in and outside of the ETP. The U.S. should take this opportunity to strengthen its dolphin safe label requirements to send a message to future eco-label challengers.
— Jessica Kabaz-Gomez, Managing Editor
 See Avidan Kent, On tuna, dolphins and all sorts of barriers, Legal Frontiers: McGill’s Blog on International Law (Nov. 11. 2011), http://www.legalfrontiers.ca/2011/11/on-tuna-dolphins-and-all-sorts-of-barriers/.
 Public Citizen, Analysis: today’s WTO ruling bad for dolphins, consumers…and even the WTO (May 16, 2012), http://citizen.typepad.com/eyesontrade/2012/05/analysis-todays-wto-ruling-bad-for-dolphins-consumers-and-even-the-wto.html.
 Id.; see Erik P. Bartenhagen, The Intersection of Trade and the Environment: An Examination of the Impact of the TBT Agreement on Ecolabeling Programs, 17 Va. Envtl. L.J. 51, 63 (1997). Annex 1.1 of the TBT Agreement defines a technical regulation as a: “[d]ocument which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements as they apply to a product, process or production method.” TBT Agreement, Annex 1.1.
 United States: Measures Concerning The Importation, Marketing and Sale of Tuna and Tuna Products, WTO Report of the Appellate Body, WT/DS381/AB/R, ¶ 182 (May 16, 2012), available at http://docsonline.wto.org/imrd/gen_searchResult.asp?RN=0&searchtype=browse&q1=%28%40meta%5FSymbol+WT%FCDS381%FCAB%FCR%2A+and+not+RW%2A%29&language=1
 Id., at ¶ 181.
 Id. at ¶ 199.
 Id. at ¶ 188.
 TBT Agreement, Annex §§ 1.1-1.2. Annex 1.1 of the TBT clearly states that technical regulations are measures “with which compliance is mandatory” and annex 1.2 explains that standards are measures “with which compliance is not mandatory.” Id.
 WTO Report of the Appellate Body, supra note 5, at ¶ 199. The DCPIA standard requires: (1) no dolphins may be chased, netted or encircled during a tuna fishing trip; (2) no use of drift gill nets to catch tuna; (3) no accidental killing or serious injury to any dolphins during net sets; and (4) no mixing of dolphin-safe and dolphin-deadly tuna. See Earth Island Institute, Dolphin Safe Tuna: Consumers (last accessed Nov. 26, 2012), http://earthisland.org/dolphinSafeTuna/consumer/. In the ETP, compliance with this standard must be verified by an independent observer on board the ship. Id. Outside the ETP, in most circumstances, verification by the vessel’s captain is sufficient. DPCIA, 16 U.S.C. § 1385(d)(1)(B).
 Id. at ¶ 188.
 Id. at ¶ 193.
 Id. at ¶ 193.
 TBT Agreement, supra note 12, at. § 2.1.
 World Trade Organization, Dispute Settlement:Dispute DS381_United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (last updated Oct. 12, 2012), http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds381_e.htm.
 Public Citizen, supra note 3.
 Dolphin Protection Consumer Information Act (DPCIA), 16 U.S.C. § 1385(d) (2011).
 Todd Tucker, Flipper gets axed by the WTO, PUBLIC CITIZEN (September 15, 2011), http://citizen.typepad.com/eyesontrade/2011/09/flipper-again-on-the-wto-chopping-block.html.
 The current dolphin safe design imposes the additional observer requirements on ETP tuna Due to the extremely high chance of harm to dolphins in the ETP, relative to other parts of the Ocean. WTO Report of the Appellate Body, supra note 5, at ¶ 288. The different requirements pursue the legitimate objective of “ensuring that consumers are not misled or deceived about whether tuna products contain tuna that was caught in a manner that adversely affects dolphin” by imposing the most expensive verification requirement of independent observers in the ETP were dolphins are most at risk of being killed. Id. at ¶ 242.
 WTO Report of the Appellate Body, supra note 5, at ¶ 291.