NOAA Proposes Tuna-Dolphin Regulations To Comply With WTO Ruling

To comply with a World Trade Organization ruling in a tuna-dolphin complaint brought by Mexico, the U.S. proposed new regulations that would tighten the requirements for allowing tuna to be labeled “dolphin safe.”

The proposal was issued for comments by the National Oceanic and Atmospheric Administration on April 5. It would revise the Dolphin Protection Consumer Information Act (DPCIA) of 1990, which established a dolphin-safe labeling standard for certain tuna products.

Under the original rule, a “dolphin-safe” label could be used only for tuna that was caught without using purse-seine, encircling methods.  But for tuna caught in the Eastern Tropical Pacific Region (ETPR), additional certification was required that “no dolphins were killed or seriously injured” while catching the tuna.

In the U.S. regulations, NOAA also established a domestic tracking and verification program that provides for the tracking of tuna labeled dolphin-safe.

In a case brought by Mexico in 2008, Mexico challenged in the WTO the U.S. dolphin-safe labeling system as violating provisions of the WTO’s General Agreement on Tariffs and Trade 1994 and its Agreement on Technical Barriers to Trade (TBT Agreement).

Mexico’s tuna fishermen catch their fish in the ETPR using purse-seine vessels and complained to the WTO that the U.S. rules unfairly discriminated against Mexico. In the case, US-Tuna II, the WTO Dispute Settlement Body on June 13, 2012, adopted earlier WTO reports finding that the U.S. labeling system did indeed discriminate against Mexican tuna and violated the WTO Agreement on Technical Barriers to Trade.

In its proposed rule, NOAA would expand its current requirements  so all tuna products labeled dolphin-safe — not just tuna harvested by large purse seines in the ETP — would be required to have verification statements from captains, and in some cases observers, that “no dolphins were killed or seriously injured” while harvesting the tuna. In addition, there are new storage requirements so tuna caught using gear designated as dolphin-safe has to be stored separately from tuna caught in non-dolphin-safe gear from the time of capture through unloading.

This case is an important one as some countries use non-tariff barriers to protect their domestic industries or to advance environmental goals. (See a 1996 CEI article about the Basel Convention’s impact on international trade.)