By Shannon Togawa Mercer
The WTO Appellate Body recently supplied us with a new development in the ever-interesting string of U.S.-Tuna trade decisions. After the appellate body’s 2012 ruling against a U.S. measure, in what is affectionately known as U.S. – Tuna II (Mexico), the U.S. was tasked with bringing its measure into conformity with WTO obligations. The Appellate Body recently reviewed U.S. revisions and found them lacking. Some background: In 2009, Mexico challenged a U.S. “dolphin safe” labeling scheme before the WTO. The U.S. measure only allowed the “dolphin safe” label to be placed on canned tuna sold in the United States that was not the product of a suspect tuna fishing method called “setting on dolphins.” That said, the regulation only required certification of dolphin safety in the Eastern Tropical Pacific (ETP) region, functionally allowing all tuna caught by outside of the ETP to carry the dolphin safe label. The Appellate Body took issue with the regulation under the Technical Barriers to Trade (TBT) agreement Article 2.1: First, the labeling measure had “a detrimental impact on the competitive opportunities of Mexican tuna products in the U.S. market” given that the majority of Mexican fishermen fished in the ETP; secondly, the regulation did not “even-handedly” address the risks to dolphins “arising from different fishing techniques in different areas of the ocean.” After this decision, the U.S. revised the US Dolphin Protection Consumer Information Act and implementation regulations with a new substantive requirement that other tuna products outside of the ETP get captain certification that “no dolphins were killed or seriously injured.” Vessels in the ETP are still required to provide higher levels of certification and more cumbersome documentation. The WTO found that the amended measures continue to violate the non-discrimination requirements of the TBT agreement.