It’s not clear what the ruling will mean for the future of the voluntary dolphin-safe label, but environmentalists worried that the decision would realize their major fear: that the United States would have to sacrifice an important environmental law in the name of free international trade.
“This latest ruling makes truth-in-labeling the latest casualty of so-called ‘trade’ pacts, which are more about pushing deregulation than actual trade,” Todd Tucker, research director for Public Citizen’s Global Trade Watch, said in a news release this afternoon.
“Members of Congress and the public will be very concerned that even voluntary standards can be deemed trade barriers.”
The Mexican government had challenged the United States’s dolphin-safe label with the WTO, saying that it discriminates against Mexican tuna fleets. Last fall, a dispute panel ruled in favor of Mexico on some issues, but acknowledged that the United States had a legitimate consumer and environmental right to pursue the label. Both Mexico and the Office of the U.S. Trade Representative, which handles dispute cases before the WTO, appealed the case. In today’s final ruling, the WTO appeals court sided with one of Mexico’s major concerns:
The Appellate Body reasoned, first, that, by excluding most Mexican tuna products from access to the “dolphin-safe” label while granting access to most US tuna products and tuna products from other countries, the measure modifies the conditions of competition in the US market to the detriment of Mexican tuna products.
It’s not clear whether Congress will have to amend the dolphin-safe law to include the chasing and netting of dolphins in the eastern tropical Pacific Ocean, which is the only spot in the world where dolphins swim above tuna. Nkenge Harmon, deputy assistant for public and media affairs for the U.S. Trade Representative, commented via e-mail that the United States “will study the report carefully and consider its implications.”
“At this time,” she added, “it is premature to discuss any specific actions that might be required to implement the findings of the panel and the Appellate Body.”
Harmon said the government viewed the appellate court’s ruling as a mixed bag, confirming the label provides important consumer and environmental protections but deciding it did not offer equal protections to dolphins across the world’s oceans. “To be clear, we disagree that the U.S. measures do not apply even-handedly,” Harmon noted.
Mark Palmer , associate director of the International Marine Mammal Project for Earth Island Institute, notes that the U.S. government will have 15 to 19 months in which to “negotiate a way for the United States to come into compliance” with the WTO ruling. He said that Earth Island will push the Obama administration to try to convince the Mexican government and its fishing fleets to adopt more dolphin-safe methods, which they have rejected in the past.
The WTO ruling “certainly doesn’t represent the best interests of dolphins or U.S. consumers,” Palmer adds. “The reason why Mexico has been singled out is because they’ve refused to do what everybody else does, which is fish in a dolphin-safe manner.”
Palmer notes that Mexico already can sell tuna in the United States, just not under the U.S. Department of Commerce’s dolphin-safe label.
Regardless of today’s ruling, the three major U.S. tuna processors — Bumble Bee, StarKist and Chicken of the Sea, which collectively sell more than 80 percent of the canned and pouched tuna in the country — claim they will not alter their tuna-buying practices.
“For those companies, their commitment to dolphin-safe tuna is unwavering,” says Gavin Gibbons, spokesman for the National Fisheries Institute’s Tuna Council, which represents the three processors.
“This is an issue of sourcing,” Gibbons says. “They will not source tuna in a manner that harms dolphins . . . . From that standpoint, [the ruling] doesn’t change much.”
The question remains, however, whether the tuna companies would continue using the dolphin-safe label if it were revised to include the chasing-and-netting techniques. And if they did not use the modified label, would it affect sales?
“I can’t answer that,” Gibbons says. “A change in the label is not something that would happen quickly . . . .You’d have to change the regulatory statute that NOAA [National Oceanic and Atmospheric Administration] has in place, and that is not something that will happen overnight.”
The U.S. government doesn’t seem eager to change the law unpinning the dolphin-safe label. Noted Harmon: “The U.S. remains committed to ensuring that consumers receive accurate information concerning whether the tuna in a product labeled ‘dolphin safe’ was caught in a manner that caused harm to dolphins.”