US Revises "Dolphin-Safe" Tuna Label

18 July 2013

The US has enacted new reforms to its dolphin-safe labelling programme, in an effort to comply with an adverse WTO ruling issued last year. However, Mexico, which had been the complainant in the high-profile dispute regarding tuna imports, has already said that the changes do not go far enough toward meeting Washington's WTO obligations and has promised to challenge them at the global trade arbiter.

The new US regulation was developed by the National Oceanic and Atmospheric Administration (NOAA), which had circulated its proposals in April in order to allow for public comments. (See Bridges Weekly, 18 April 2013) The final version was announced last week, ahead of the WTO-established 13 July compliance deadline.

Under the changes, captains and other approved observers will be required to certify "that no dolphins were killed or seriously injured during fishing operations occurring outside the eastern tropical Pacific Ocean." This, Washington says, would make the labelling program "even-handed" compared to before, where no such requirements were necessary for importers outside the Eastern Tropical Pacific (ETP) region.

"I am pleased to announce the United States has complied with the WTO's findings in a way that enhances, and does not weaken, our ‘dolphin safe' labeling program," said US Trade Representative Michael Froman.

"The final rule published by the NOAA helps ensure that American consumers continue to receive accurate information regarding whether the tuna in a product labeled ‘dolphin safe' was caught in a manner that caused harm to dolphins," he continued.

The WTO's Appellate Body had found last May that the US' dolphin-safe label was inconsistent with international trade rules, confirming an earlier panel ruling. (See Bridges Weekly, 16 May 2012)

Specifically, WTO judges found that the US had discriminated unfairly against Mexican tuna products, given that tuna caught with "purse-seine" nets - encircling nets that temporarily set on dolphins to attract the tuna that swim below - were ineligible for a dolphin-safe label.

Such nets are nearly exclusively used by Mexican fisheries, due to specific conditions in the ETP, effectively preventing the country's tuna from accessing the US market.

Mexico: New rules insufficient

Though the new US measure now covers tuna caught in both the ETP and non-ETP regions, Mexico alleges that its fishermen will continue to face two separate regulatory regimes and will still be subject to discriminatory treatment. The NOAA regulation, Mexico says, is therefore not in compliance with the terms of the Appellate Body ruling.

"Mexico will continue defending the national fisheries sector and the sustainability of fisheries in the WTO and other international forums," the Mexican Secretary of the Economy said in a statement, promising to formally challenge the new measure's compliance. "If the violation [of WTO agreements] is confirmed, Mexico could impose trade countermeasures against the United States."

Under WTO rules, Mexico can request that the original dispute panel issue a decision on the US' compliance in the case. Should the judges find that the US did indeed fail to implement the ruling, countermeasures can then be authorised by the arbitrators.

Washington is set to provide a status report on the dispute at the next meeting of the WTO's Dispute Settlement Body (DSB), which is scheduled for 23 July. It was not clear as Bridges went to press whether Mexico would lodge a compliance challenge at that time.

ICTSD reporting.

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