Save the dolphins: the 40 year battle is renewed

Who will join the fight to save the dolphins? Consumer boycotts and “save the dolphin” demonstrations over the course of many years resulted in a U.S. program for dolphin safe labeling for tuna products. Most Mexican commercial fishing operations, however, continued to ignore U.S. dolphin safe practices. They can still sell their tuna products in the U.S., but may not display the U.S. Department of Commerce dolphin safe label. As reported in our blog post of May 18, this labeling program is potentially to be upended by the World Trade Organization. Here is some more detail.

The slaughter of millions. With the introduction of purse seine nets in the 1950s, corporate fishing fleets in the East Tropical Pacific Ocean began the slaughter of millions of dolphins. Mexican fishing ships off the Pacific coast follow pods of dolphins that swim with tuna. Fishers intentionally target dolphins, “setting upon” them to catch the tuna swimming underneath. The ships use dangerous purse seine nets that encircle both the dolphins and the tuna. Mothers can be killed or separated from calves in the chase-down. Over 6 million of these intelligent, social mammals have been killed in the ETP fishery since the late 1950s.

Legislative and litigation history. In 1972, Congress enacted the Marine Mammal Protection Act that was later amended in 1988 to authorize embargos on at least a certain percentage of tuna imports that failed to meet MMPA standards regarding Dolphin kills. In compliance with a federal court order, the U.S. in 1990 placed an embargo on tuna from Mexico and four other nations for violating the MMPA. 

After years of effort by environmental activists and protests by consumers, the United States in the 1990s developed “dolphin safe” labels for tuna packaging, so that consumers can choose to buy tuna that is not harvested using nets that kill dolphins by the multitude. Films such as Sam LaBudde’s 1988 undercover documentary of dolphin kills attracted worldwide media attention and aroused public anger. Earth Island Institute’s consumer boycott of Starkist tuna forced the world’s largest tuna corporation to declare its products “dolphin safe” in 1990. Other companies followed suit, but company policies were not harmonized, and government regulation was urgently needed. 

In 1990, Congress enacted the Dolphin Safe Labeling statute, which barred use of the dolphin safe label on products containing tuna caught by setting upon dolphins. Consumers responded and sales of tuna products without the dolphin safe label languished.

In 1991, Mexico filed a trade complaint under the General Agreement on Tariffs and Trade (the agreement that preceded the creation of the WTO) contending that provisions of the MMPA protecting dolphins violated the international trade law doctrine that “like” goods should not be regulated differently based on their means of production. The European Economic Community later brought a similar suit. Two GATT tribunal decisions followed in 1991 and 1994, ruling in favor of the plaintiffs. But, GATT tribunal decisions could not be enforced without the consent of all parties. In the case of the United States and Mexico, both parties were content to let the matter lie for the time being, lest it generate more public opposition to the pending North American Free Trade Agreement. 

Under pressure from President Clinton, Congress in 1997 lifted the embargo on certain imports of products containing tuna caught by setting upon dolphins, including those from Mexico. The dolphin safe labeling law was also relaxed to allow dolphin safe labeling of tuna products as long as scientific studies demonstrated that fishing for tuna with purse seine nets was not “contributing significantly to the slowness of the recovery of depleted dolphin populations.”

Clinton then sought to weaken the law by administrative regulation in the interest of “free trade” with Mexico, whose tuna fleet largely continued to set upon dolphins using purse seine nets.  President George W. Bush sought to continue the Clinton policy again through the regulatory process. But, these efforts were checkmated by the U.S. federal courts, which concluded that the Clinton and Bush regulations were not supported by science as the 1997 amendments to the law required.

Mexico sues in the WTO.  After the decision in Earth Island Institute v. Hogarth firmly fixed the U.S. dolphin safe labeling program into law, most Mexican commercial fishing operations continued to ignore U.S. dolphin safe practices. As a result, in 2008 Mexico sued the United States before a WTO tribunal, claiming that the U.S. dolphin safe law violated WTO rules. 

In September 2011, a WTO panel ruled for Mexico, finding that the U.S. dolphin safe standard violated the agreement on Technical Barriers to Trade, article 2.2 because it is “more trade-restrictive than necessary.”   The U.S. appealed, and on May 16, 2012 the WTO Appellate Body reversed the panel finding under TBT Article 2.2, but still found the U.S. dolphin safe labeling program violated the TBT, on the grounds that the program was “discriminatory” under the terms of article 2.1.

Among other arguments for its finding of discrimination, the Appellate Body drew the conclusion that the U.S. could not justify the disparate treatment of primarily Mexican fishers under the U.S. program, which focuses on the practice of “setting upon dolphins” in the Eastern Tropical Pacific. For reasons that no one fully understands, dolphins and tuna do not swim together in exactly the same way in other oceans. Therefore, tuna may be harvested in fisheries outside the ETP in ways that also result in dolphin kills but still qualify for the U.S. dolphin safe label because there is no “intentional setting on dolphins.” As a result, the Appellate Body concluded, the U.S. labeling program works to the market disadvantage of Mexican tuna caught by setting upon dolphins.    

Both the panel and Appellate Body decisions ignored extensive evidence of the distinction between incidental by-catch of dolphins outside of the ETP, and intentional targeting of dolphins within the ETP, which justify the varying requirements for the U.S. dolphin safe label depending on the fishery involved.

Threats to other environmental and public health regulations. The outcome of this WTO case has continuing impacts on other environmental and public health regulations. Both the initial dispute resolution panel and Appellate Body found that the U.S. dolphin safe program – which is a voluntary program –  is nevertheless a mandatory “technical regulation” that is subject to the discipline of the WTO Agreement on Technical Barriers to Trade. This suggests that many more voluntary environmental and consumer regulations could be vulnerable to TBT challenges.  

Indonesia recently succeeded in a dispute against the U.S. involving a ban on menthol cigarettes, which was decided under the TBT Agreement.   Canada and Mexico also recently prevailed at the panel level in a TBT challenge against U.S. measures related to country of origin food labeling. The troubling outcomes in the tuna labeling case and in these other disputes suggest that environmental and public health labeling measures, more generally, could be at risk of a TBT challenge.  Government measures related to eco-labels and labels for energy efficiency, organic food, and sustainable agriculture, for example, could become targets for WTO lawsuits. 

The WTO dispute settlement body will soon call for the U.S. to bring its policies into conformity with the WTO Agreement on Technical Barriers to Trade. The U.S. will likely have just over a year to determine how or if to comply before Mexico can seek to impose retaliatory trade sanctions. Mexico will demand that its tuna industry should be allowed to use a dolphin safe label when marketing their tuna products in the United States. This must not be allowed to happen. 

Again, who will join the fight to save the dolphins? Friends of the Earth is asking you to join the fight.  Keep an eye out for our upcoming action alerts.