WTO Appellate Body Finds U.S. Dolphin-Safe Tuna Labels Discriminatory
A World Trade Organization Appellate Body found that U.S. dolphin-safe labeling provisions discriminate against Mexican tuna products, reversing portions of the panel report in U.S. - measures concerning the importation, marketing and sale of tuna and tuna products (DS381), and recommended that the WTO request that the U.S. bring the provisions into conformity with U.S. WTO obligations.
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(A September 2011 WTO panel report found that the U.S. dolphin-safe labeling provisions do not discriminate against Mexican tuna products and are therefore not inconsistent with an Article 2.1 of the Technical Barriers to Trade Agreement. It also found that the U.S. dolphin-safe labeling provisions are not in violation of Article 2.4 of the TBT, which requires technical regulations to be based on relevant international standards where possible. However, the panel found that U.S. dolphin-safe labeling provisions violated Article 2.2 of the TBT in that the measures are more trade-restrictive than necessary to fulfill U.S. objectives of protecting dolphins and informing consumers. Accordingly, the panel recommended that the U.S. bring its measures into conformity with its TBT obligations. The U.S. Trade Representative announced it would appeal the panel report in January 2012. See ITT’s Online Archives 11091616 for summary of the panel report, and 12012017 for summary of the USTR’s announcement that it would appeal the report.)
Panel Finding that Measures are More Trade Restrictive than Necessary Reversed
The Appellate Body found, among other things, that the panel did not err in characterizing the measure at issue as a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement.
However, the Appellate Body reversed the panel’s finding that Mexico had demonstrated that the U.S. dolphin-safe labeling provisions are more trade restrictive than necessary to fulfill the United States' legitimate objectives.
Appellate Body Says Measures Discriminate Against Mexican Tuna Products
The Appellate Body also reversed the panel's finding that the dolphin-safe labeling provisions do not discriminate against Mexican tuna products and are not inconsistent with Article 2.1 of the TBT Agreement. The Appellate Body said the measure modifies the conditions of competition in the U.S. market to the detriment of Mexican tuna products because it focuses on a specific method of tuna-fishing that is widely used in the Eastern tropical Pacific by Mexican tuna producers, while not addressing risks to dolphins from other fishing methods in other areas of the ocean.
Therefore, the Appellate Body recommended that the DSB request that the U.S. bring its dolphin-safe labeling provisions into conformity with U.S. WTO obligations.
WTO summary of key Appellate Body findings available here.