The fairy tale of US “dolphin safe” labelling: False claims, unintended consequences

1 May 2012

Tuna-Dolphin is one of the best-known and most controversial environment-related cases in the history of the multilateral trade regime. In this article, Mark J. Robertson takes aim at what he calls Washington’s “unsustainable” and “indefensible” dolphin-safe labelling policy.

Once upon a time in the 1960s, ‘70s, and ‘80s, the US fleet dominated in the Eastern Tropical Pacific (ETP) tuna “purse seine” fishery and millions of dolphins were estimated to have been killed as a side effect to standard fishing practices. The mile-long nets used by purse seine fishing fleets encircled pods of dolphins as a strategy for capturing the tuna swimming beneath them. They did so without a comprehensive set of effective procedures, knowledge, training, or gear to safely release the dolphins before hauling in the tuna.

In the mid-1980s, the US fleet began its wholesale migration from the ETP to new fishing grounds in the Central and Western Pacific, and as a concerted multilateral cooperative effort to reduce incidental dolphin mortality began to take shape, mortalities in the ETP began to decline dramatically. Nevertheless, by the end of the 1980s, dolphin mortalities remained unacceptably high from a public and political perspective, leading to the passage in 1990 of the US Dolphin Protection Consumer Information Act – the “dolphin safe” labelling law. Under this law and other amendments to the Marine Mammal Protection Act, any tuna caught in the ETP on a vessel trip in which any sets were made on tuna in association with dolphins was deemed non-dolphin safe and embargoed from import into the United States. As is described in detail below, the U.S. consumer is being deceived today as to the true dolphin safe status of the tuna bearing the dolphin safe label.

Mexico challenged this embargo in dispute settlement proceedings under the General Agreement on Tariffs and Trade (GATT). Mexico prevailed when a GATT panel ruled in September 1991 that the US measure imposing the import ban was inconsistent with its GATT obligations. Mexico chose, however, not to seek implementation of that GATT ruling. In any event, under the rules of the multilateral trading system as they were at that time, the United States would have been able to block the implementation of the ruling by refusing to join in a consensus to adopt it.

Meanwhile, multilateral cooperation towards improving the International Dolphin Conservation Program (IDCP) in the ETP continued to evolve. In 1992, under the auspices of the Inter-American Tropical Tuna Commission – the treaty organisation established in 1949 to manage the ETP tuna fishery – the US, Mexico, and eight other countries participating in the fishery adopted the La Jolla Agreement (33 I.L.M. 936, 1994). The La Jolla Agreement formalised the IDCP into a comprehensive but voluntary program that included advanced dolphin safety gear, techniques for release of dolphins from the nets, prohibitions on fishing after sunset, training for captains and crews, and, for the first time in any international fishery, 100 percent on-board coverage by independent scientific observers.

Importantly, the Agreement also locked-in targets for further reductions in dolphin mortality – from the 1992 level of 15,539 to less than 5,000 within five years. In 1993, the first year of full implementation of the La Jolla Agreement, dolphin mortalities had already been reduced to below 3,600, and they have remained well below that level ever since. To put that number into context, the total estimated population of the three main dolphin stocks in the ETP that are associated with the fishery is greater than 6.5 million.

In 1995, since the problem of exceedingly high levels of fishery-related dolphin mortality in the ETP had successfully been addressed by and sustained through the voluntary La Jolla Agreement, Mexico began working with responsible conservation organisations such as WWF, Environmental Defense, Greenpeace, National Wildlife Federation and Ocean Conservancy. The purpose was to transition the focus in the ETP from single-species (dolphin) management to one that manages all living marine resources in the ecosystem, with an emphasis on dolphins. A key concern leading to the change was recognition of the high level of destructive bycatch – non-target species caught unintentionally – and discards of living marine resources associated with so-called “dolphin safe” fishing, as defined by the United States policy, on fish aggregating devices (FADs).

The use of FADs has proven to be quite controversial. Studies by the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Western and Central Pacific Fisheries Commission (WCPFC) in 2009, the University of Hawaii (2008) and many others have all raised significant concerns that the strong tendency of juvenile yellowfin and bigeye tunas to associate with the devices is having a particularly significant negative impact on their abundance status.

The other important objective of the collaborative 1995 effort was to lock in and improve upon the dramatic success of the La Jolla Agreement by making compliance mandatory for the fleets of nations participating in the ETP. The US joined this effort, and the 15 nations participating in the fishery, including the European Union, Spain, Ecuador, Venezuela, Costa Rica, Colombia, and Panama, agreed to the Declaration of Panama in October of 1995. By this time virtually the entire US fleet had migrated to the Central and Western Pacific under regulatory pressures of the MMPA. This was facilitated by the multilateral treaty on fisheries between the US and the Pacific Island States, which provided permits for the US fleet to fish in the exclusive economic zones of 16 Pacific Island States in exchange for annual foreign assistance payments from the US. Annual US payments to the Pacific Island States under the Treaty have averaged some US$18 million since 1987.

The preamble of the Declaration of Panama called for the negotiation and adoption into law and regulation by all Parties of a new legally binding multilateral agreement not only for the protection of dolphins, but also to “reduce and minimize the bycatch of juvenile yellowfin tuna and bycatch of non-target species, in order to maintain the long-term sustainability of all these species, taking into consideration the interrelationships among species in the ecosystem.” In that same preamble, the Declaration, to which the US was a signatory, stated that the adoption of the legally binding instrument was “contingent upon the adoption of changes in United States law as envisioned in Annex I to this Declaration.” Annex I detailed the commitment of the US to lift the embargoes and change the definition of dolphin safe from a “method of capture” standard to a “non-mortality or serious injury” standard.

In July of 1997, after a long debate, the United States enacted the International Dolphin Conservation Program Act (IDCPA), which amended the MMPA law. This legislation “gave effect to” the Declaration of Panama, including providing for the requisite change in the definition of dolphin safe in accordance with Annex I of the Declaration. In April of 1998, the nations participating in the ETP tuna fishery signed the Agreement on the International Dolphin Conservation Program (AIDCP), a treaty which became effective in February of 1999. The US definition of dolphin safe was changed for three weeks in 2003 before being stayed and then permanently reversed by a US court. This is where the situation remains today.

The other parties have either fully implemented or conditionally applied the legally binding mandates for dolphin protection under the AIDCP, while the United States has failed to fulfil its commitments to rationalise the definition of dolphin safe. The US market remains effectively closed to tuna from Mexico and others not willing or able to change their method of fishing to one recognised as “dolphin safe” under the unilateral US label, principally FAD fishing. Mexico challenged this before the WTO (DS381), and a Dispute Settlement Panel handed down its decision in November 2011. The decision is currently on appeal before the Appellate Body (for more on the legal aspects of the case, see Bridges Trade BioRes Review,Volume 5, Number 3).

In the course of the WTO case, the Dispute Settlement Panel (DSP) considered all of the evidence and determined that US consumers were being misled as to the true “dolphin safe” status of tuna bearing the dolphin safe label in the market today. The DSP determined that consumers would benefit from additional information and choices that would result from allowing AIDCP Dolphin Safe tuna into the US market. The US has conceded the fact that tuna sourced from outside the ETP and eligible to carry the “dolphin safe” label in the US market today does not necessarily mean that the tuna was caught without mortality or serious injury to dolphins – or even with independently verified proof that the tuna was caught without encirclement of dolphins. In fact, Mexico provided extensive scientific evidence, cited by the DSP in its decision, that not only were non-ETP fleets intentionally setting on dolphins, but that there is quite regular and very significant mortality and serious injury to dolphins in global tuna fisheries, including in the Central and Western Pacific, home to the US fleet and the source of the vast majority of tuna sold in the US market.

Indeed, a report issued by the Western and Central Pacific Fisheries Commission estimates that as many as many as 1195 dolphins were killed in tuna fishing operations in that ocean region in 2009, with a very limited level of independent observer coverage. Disregarding what might have happened in the large proportion of unobserved operations, this is approximately the same as the number killed in the ETP that same year. Yet tuna from the Western Pacific is eligible to be labelled dolphin-safe in the US market.

According to two nationwide polls conducted by Public Opinion Strategies over the past decade, 59 percent of US canned tuna consumers said they thought the definition of “dolphin safe” meant that no dolphins were killed or injured in the capture of the tuna (the AIDCP definition). The polls also found that 22 percent tuna consumers thought the label indicated that there was no dolphin meat in the can; and only 10 percent thought it meant that dolphins were not encircled in the capture of the tuna (the currently applied US policy). The current US label is not only misleading to consumers, but it is outright deceptive given that there is regular and very significant mortality and serious injury to dolphins associated with the tuna covered by the US label.

From the Declaration of Panama’s adoption in 1995, up until the US court reversed the change in the dolphin safe definition in 2003, the US government had vigorously defended the international program now in place under the AIDCP. In fact, then-Vice President Al Gore led the Clinton Administration effort in 1997 to allow Mexican tuna to enter the US market labelled as dolphin safe. This effort was sustained throughout the political and legal battles to implement the AIDCP commitments. This US posture changed 180 degrees in defence of the current labelling requirements before the WTO.

AIDCP-certified dolphin safe tuna is backed up by a transparent, legally binding multilateral program, verified by an on-board independent scientific observer for 100 percent of vessel trips and sets of nets. It is further supported by a comprehensive tracking and verification program that tracks tuna from the moment it is captured all the way through processing and to the grocery store shelves. It truly ensures consumers that no dolphins were killed or injured in the capture of the tuna contained within that particular can. For non-ETP tuna products, representing more than 90 percent of the tuna in the US market today, the US rules provide no such assurance; in fact, there is no requirement for even self-certification that no dolphins were killed or injured in the harvesting of non-ETP tuna.

In maintaining their measure in its current form, the US continues to maintain an effective barrier to market access against the 96 percent of Mexican tuna products that are “AIDCP Dolphin Safe.” In addition, by maintaining a single misleading and deceptive dolphin safe standard, the US precludes the fully verifiable, multilateral AIDCP Dolphin Safe label from entering the market to more fully educate consumers and give them a competitive choice as to what level of marine mammal protection and fishery stock sustainability they wish to support through their purchase.

Importantly, leading international environmental NGOs are seeking strict controls on FAD fishing given its well-demonstrated adverse impact on ocean ecosystems, including dolphin mortalities from tuna fishing in other oceans. The US itself is focusing on sustainability of fisheries through reductions in bycatch and discards. Meanwhile, the US is maintaining and defending its current dolphin safe policy, effectively mandating that anyone wanting to effectively access the US market with a dolphin safe label must fish on FADs.

If the US is successful in maintaining this unsustainable and indefensible policy, there will be no “happily ever after” under the AIDCP or any other international fisheries agreement that must rely on its parties to fulfil their obligations and commitments. It will also serve to undermine the balance between trade and the environment and multilateral cooperation in the protection of international resources. Finally, dolphins in ocean regions other than the ETP will be left unprotected by the US “dolphin safe” policy, as they are currently.

Mark J. Robertson - President of the Washington-based strategic consulting firm Potomac Global Advisors. Robertson has worked on many of the most challenging issues on the bilateral, US-Mexico agenda on behalf of various ministries, companies and industries in Mexico.

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