WTO Rules against US Dolphin Saving Measures as a Barrier to Global Trade

The World Trade Organization (WTO) handed down a ruling against the United States, finding that a program implemented decades ago in an effort to save dolphins amounts to a “technical barrier to trade.” Mexico initiated the case against the US.

The program in question, started in 1990, created a “dolphin-safe” label that could be applied to tuna to notify consumers that the product was caught in a manner designed to avoid killing dolphins. In the wild, and more particularly in the Pacific, tunas and dolphins often swim in the same areas.

The World Trade Organization (WTO) handed down a ruling against the United States, finding that a program implemented decades ago in an effort to save dolphins amounts to a “technical barrier to trade.” Mexico initiated the case against the US.

The program in question, started in 1990, created a “dolphin-safe” label that could be applied to tuna to notify consumers that the product was caught in a manner designed to avoid killing dolphins. In the wild, and more particularly in the Pacific, tunas and dolphins often swim in the same areas.

As a result, for many years fishing companies would use dolphin sightings as a sign of potentially good fishing for tuna. The fishing boats would deploy large nets that would drag the ocean indiscriminately gathering anything in their path. This often included the dolphin used to identify the bountiful fishing lane.

While the tunas are used in food and other products, the dolphins were not.  This means that they would die or become injured for no reason and causing their numbers to dwindle dangerously.

In 1990, the United States enacted its “dolphin-safe’ labeling program in conjunction with a ban of imports of tuna caught with practices deemed harmful to dolphins. According to the Sierra Club, the “dolphin-safe” label played a vital role in the US program, and contributed to a 97 percent reduction in dolphin deaths in Pacific waters since the 1980s.

The ruling against the US came following a challenge by Mexico against the import ban. An earlier case led to a significant weakening of the restrictions required to obtain a “dolphin-safe” label. However, Mexico’s most recent challenge attacked the now voluntary labeling requirement.

The WTO has ruled against the US labeling program on multiple occasions, including 2011, 2012, and now 2015. In its final ruling, the WTO held that the label violated the WTO’s rules, despite the fact that the policy was designed to protect endangered wildlife, was voluntary, and applied uniformly to both foreign and domestic firms. At the point, the WTO may now determine appropriate sanctions against the US, if any, that Mexico may impose.

The ruling has even farther-reaching ramifications in light of recent negotiations to finalize the Trans-Pacific Partnership (TPP). Many portions of the TPP borrow heavily from WTO regulations for boilerplate provisions. Among them is the same provision upon which the WTO relied in its ruling against the US.