[MARINE_BIOLOGY_INTERNATIONAL] US-Mexico "Dolphin Safe" label wars rage on


(International Center for Trade & Sustainable Development)

US, Mexico Appeal Dolphin-Safe Labelling WTO Dispute

The United States on Friday filed an appeal in its WTO dispute with Mexico over "dolphin-safe" labelling for tuna products sold in the US. The move came only two days before the final appeal deadline.

The decision to appeal "demonstrates the commitment of the United States to our dolphin-safe labelling measures for tuna products," said Andrea Mead, the US Trade Representative Press Secretary. "[The labels] provide information for American consumers as they make food purchasing decisions for their families."

Following the US decision, the Mexican Ministry of Economy released a statement that it will file a counter-appeal in the next five days. The counter-appeal will address issues that the panel did not resolve in Mexico's favour including the arguably discriminatory aspects of the label.

"This measure affects Mexico more than any other exporter," the Mexican Ministry explained the move in its announcement.

Circulated in September 2011, the original WTO panel was seen as a mixed victory for Mexico (see Bridges Trade BioRes, 19 September 2011). Mexico City ultimately prevailed with the panel finding that the US measures were a governmental regulation that was more trade-restrictive than necessary and thus in violation of the Agreement on Technical Barriers to Trade (TBT). The panel, however, also sided with the US, finding that the labelling policy was not discriminatory against Mexican tuna products over those from the US or other countries.

The formal appeals document had not been released by the WTO at the time of writing (will be released at WT/DS381/10). But experts expect the US to focus its appeal on the panel's "more trade restrictive than necessary" finding under the TBT agreement. Although the panel recognised the US right to aim at preventing non-observed mortalities and injuries to dolphins through its labelling measures, it made this conclusion after a lengthy discussion of the label's effectiveness and whether mortalities and serious injuries occur with other practices in other regions. On the basis of that discussion it found that the label was not able to achieve this objective and was therefore more trade restrictive than necessary.

The US is also expected to challenge the panel's finding that the regulation of consumer information through the label was de facto mandatory thus making it a technical regulation rather than a voluntary standard (see Bridges Trade BioRes Review November 2011 for more analysis of the panel's legal findings).

Mexico, which heralded the panel decision as a success for its country and fishing industry, will focus on the discrimination issue in its counter-appeal. Verification by independent observers that no dolphins were killed or seriously injured during a specific catch is sufficient to get the US label for countries fishing outside the Eastern Tropical Pacific (ETP). Mexico will argue that this effect is sufficient to qualify as "discriminatory" within the meaning of WTO law.

ICTSD Reporting.

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