The U.S. ban on the sale of tuna caught with dolphin-deadly purse seine nets was eliminated in 1997 after 1991 and 1994 trade challenges by Mexico and other nations. The ban was enacted after six million dolphins were killed by the nets. Outrage over the initial 1991 tuna-dolphin ruling and subsequent elimination of the embargo on dolphin-deadly tuna launched environmental activism on trade issues.
The voluntary labeling policy that replaced the ban on dolphin-deadly tuna is a market-oriented approach that provides consumers with information so they can decide if they prefer dolphin-safe tuna.
In a controversial move, the WTO ruled in 2012 that this U.S. labeling program, for which many countries’ tuna qualifies, violated WTO non-discrimination rules because tuna caught in the Eastern Tropical Pacific (ETP) had to meet additional criteria to qualify for the label. However, the ETP is the only region where dolphins are known to congregate above schools of tuna. Thus, dolphin-safe criteria for that region are set by the Inter-American Tropical Tuna Commission, an international body that includes Mexico, and apply to all fishers operating there.
If U.S. or Mexican fishers choose to use the dolphin-safe methods stipulated by the regime, their tuna qualifies for U.S. dolphin-safe labels. Tuna not meeting the standard can be sold in the United States without the label. U.S., Ecuadorean and other tuna fleets chose to meet the dolphin-safe standard. After decades of refusing to transition to more dolphin-safe fishing methods, Mexico challenged the voluntary labeling program at the WTO. The WTO ruled against the policy even though the same standards applied to U.S. fishers and even though the alleged discrimination resulted from Mexican fishers’ decision not to meet the standard.
Improvements to the labeling policy, made in July 2013 by the National Oceanic and Atmospheric Administration and supported by Public Citizen and other consumer and environmental groups, addressed the finding of discrimination in the 2012 WTO ruling by strengthening the criteria used to assure that tuna caught in other regions and sold under the dolphin-safe label is caught without injuring or killing dolphins. Even before this improvement, the labels contributed to a more than 97 percent reduction in tuna-fishing-related dolphin deaths in the past 25 years. The labels allow consumers to “vote with their dollars” for dolphin-safe methods.
In 2015, a WTO compliance panel found that the changes made to the dolphin-safe program in 2013 to comply with the 2012 ruling still were not acceptable. The panel decided that the amended program “accord[s] less favorable treatment to Mexican tuna” in violation of WTO rules. And the United States’ attempt to use the WTO exception by relating the program to the “conservation of exhaustible natural resources” failed because the panel found the program’s terms to be “unjustifiably and arbitrarily discriminatory.”
To date, the WTO has ruled against the U.S. in 2011, 2012, 2015 and more recently in April 2017. Under WTO regulations, when the trade organization rules against a country, the losing country is ordered to bring its trade rules into compliance. If it fails to do so, the WTO can authorize countries that brought the case to impose retaliatory trade sanctions on the losing country until it changes it policy. Today’s ruling reverses that decision. However, Mexico may choose to appeal the decision – continuing the trade saga between the two countries.