Ventana Chapter - Chapter Wide

WTO rules dolphin-safe tuna a trade violation
The sad demise of dolphin-safe tuna labeling
August 2011

by Joan Jones Holtz, Sierra Club
Responsible Trade Team member

Between 1959 and 1972 millions of dolphins drowned when they became ensnarled in mile-long fishing nets used to catch tuna. Fishers in the Eastern Tropical Pacific Ocean, which includes southern California, Mexico, and South America, would deliberately chase schools of dolphin to encircle them in these huge purse seine nets. Since dolphins tend to congregate above schools of tuna, the fishers knew dolphins would lead them to the tuna.

Tuna consumers in the U.S. who prefer to buy dolphin-safe tuna will no longer have any means of determining which tuna was caught by dolphin-safe methods.

In 1972, in response to an outraged American public who had refused to buy tuna, Congress passed the Marine Mammal Protection Act. That Act prohibited US fishers from using purse seine fishing nets to catch tuna.

In 1988 Congress passed amendments to the Marine Mammal Protection Act which banned tuna imports from countries whose fishers used purse seine nets to catch tuna. Studies had verified that at least three species of dolphin had been severely depleted due to this method of fishing.

In 1990, Congress passed the Dolphin Protection Consumer Information Act and created the popular "dolphin safe" label for cans of tuna. That label could be displayed only on cans which certified that the tuna had not been caught using purse seine fishing nets. Sales for tuna without the "dolphin safe" labels suffered. During this period dolphin deaths dropped dramatically—from 423,678 deaths per year in 1972 to 5,550 per year in 1992.

In 1991, Mexico challenged the U.S. ban on tuna caught in Mexican waters. The Mexican government contended that the provisions in the Marine Mammal Protection Act were not necessary to protect tuna. A GATT (General Agreement on Tariffs and Trade) panel backed them up and ruled that a policy which treats physically-identical goods differently based on their production or method of processing violated GATT rules. GATT rules require agreement of all GATT nations to adopt a new ruling—this time, in regard to dolphin safety. However, both the U.S. and Mexico agreed to drop the matter.

Why did both Mexico and the US decide to stop the controversy? Because the North American Free Trade Agreement was about to be introduced to the U.S. Congress, and its passage was in doubt. Both countries knew that the publicity from the dolphin safety controversy would likely doom NAFTA.

In 1995, soon after the US entered the World Trade Organization (WTO), Mexico again challenged the US Dolphin Protection Consumer Information Act by threatening a WTO enforcement case against the US for refusing to implement the 1991 GATT ruling.

Anxious to be on good terms with our Mexican neighbors and new NAFTA partners, President Bill Clinton promised Mexican President Ernest Zedillo that weakening the dolphin protection standard would be a top priority for his administration. After intensive lobbying by the Clinton Administration, Congress passed the Dolphin Conservation Program Act (DCPA) which permitted imports of tuna from other countries, even those using the purse seine nets for catching tuna.

This new law, DCPA, allowed the newly imported tuna to use the "dolphin safe" label—even if the tuna had been caught with purse seine nets. If monitors stationed on sighting boats did not actually see dolphins killed or injured during the setting of the lines, then that tuna could be labeled "dolphin safe."

The original champions of the Dolphin Consumer Protection Information Act, joined by the Dolphin Safe Fair Trade Coalition, fought against the weakening of the law saying that a monitor on a fishing boat the length of a football field could not possibly monitor all activities surrounding the boat.

In March 1999, President Clinton's Secretary of Commerce Bill Daley (now President Obama's Chief of Staff) determined that there was insufficient evidence that "chase and encirclement" by the tuna purse seine fishing method had any effect on dolphin safety.

On February 2, 2000, the dolphin-safe tuna label regulations were formally changed to allow tuna caught with purse seine nets to carry the dolphin-safe label so long as the monitor on a tuna vessel did not observe dolphins being killed or seriously injured during the netting.

On April 11, 2000, the U.S. District Court for the Northern District of California rejected the Department of Commerce's attempt to weaken standards on dolphin-safe labeling. This decision was hailed by environmental groups and lawmakers who had worked to establish the dolphin-safe label. They rebuked the Clinton Administration for "selling out" dolphin protections to accommodate a handful of foreign fishing companies.

However, corporate fisher groups have never given up trying to weaken dolphin safety rules. In 2008, Mexico again filed, this time through WTO, a new attack on the Dolphin Protection Consumer Information Act. This new attack alleged that U.S. dolphin protection standards violated the WTO agreement on "Technical Barriers to Trade." The WTO agreement states that "technical regulations are not prepared, adopted, or applied with a view to or with the effect of creating unnecessary obstacles to international trade. Technical regulations shall not be more trade restrictive than necessary."

Public Citizen reported in its blog, "Eyes on Trade," on May 20, 2011 that the U.S. dolphin-safe tuna labeling rule was deemed a WTO violation. Purely voluntary dolphin-safe labeling might impede non-labeled tuna from marketing opportunities in the U.S. Tuna consumers in the U.S. who prefer to buy dolphin-safe tuna will no longer have any means of determining which tuna was caught by dolphin-safe methods.

Is this what "the race to the bottom" is all about? Does U.S. trade policy affect environmental protections? You bet it does!

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