After a decade, Mexico loses “dolphin-safe” label fight

An appeal against “dolphin-safe” label standards by Mexico was denied by the World Trade Organization on 14 December, ending a legal battle that lasted over a decade.

The legal process began on 24 October, 2008, when Mexico disputed U.S. rules on the labeling of tuna as dolphin-safe on the grounds that the new standards unfairly discriminated against Mexico. Specifically, the evidence required to receive a dolphin-safe label varies depending on the area where the tuna is harvested, and the fishing method it is harvested with.

Mexico objected to the requirements regarding tuna harvested in the Eastern Tropical Pacific Ocean by large purse seine vessels, which make up a large portion of Mexico’s tuna fishery. At issue is a strategy of tuna fishing in Mexico known as “fishing on dolphins,” where vessels follow dolphins swimming with tuna. Mexican harvesters will often set nets on schools of dolphins in order to catch tuna, but send divers into the water to ensure the dolphins are not trapped in the fishing nets.

Initially, the WTO dispute settlement body (DSB) that was formed sided with Mexico, finding in 2011 that the U.S. dolphin-safe labeling provisions were “more trade-restrictive than necessary to fulfil the legitimate objectives,” but also found that the rules weren’t discriminating against Mexican tuna products.

After an appeal by the U.S., the DSB reversed some of its previous decisions, finding that the U.S. measures did discriminate and put Mexico at a disadvantage, and also made recommendations to the U.S. requiring the country to amend its standards.

Another appeal, in 2015, again ruled in favor of Mexico. An arbitrator decided that Mexico suffered in trade with the U.S. as a result of the dolphin-safe labeling policy, and allowed a potential USD 163.2 million (EUR 143.6 million) in sanctions if the U.S. didn’t begin conforming with WTO rules.

Compliance proceedings then ensued in 2016, with the U.S. claiming changes it had made to its rules calibrated for the differences in risks to dolphins that arise from using different fishing methods. The changes were referred to as the Tuna Measure.

“As a consequence of their conclusion that the 2016 Tuna Measure is calibrated, the Panels found that the distinctions made by the 2016 Tuna Measure between setting on dolphins and the other tuna fishing methods stem exclusively from legitimate regulatory distinctions,” the WTO stated in a summary of the findings. “Consequently, they found that the measure accords to Mexican tuna products treatment no less favorable than that accorded to like products from the United States and other countries.”

The latest appeal hearing, which was decided 14 December, definitively upheld the latest ruling, finding that any harm caused to Mexico’s tuna industry stemmed from a legitimate regulatory distinction, that was calibrated to the risk to dolphins.

Humane Society International praised the WTO’s decision, calling it the “Final decisive battle of a long war” over the labeling rules.