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By Tom Miles
GENEVA May 16 A World Trade Organization
appellate panel on Wednesday said U.S. "dolphin safe" tuna
labeling rules unfairly discriminate against Mexico, raising the
possibility of sanctions on U.S. goods if the rules are not
modified or dropped.
The decision is the second time in less than two months the
WTO has found fault with U.S. consumer legislation, sparking
some U.S. criticism that the WTO is interfering with U.S. law.
Nkenge Harmon, a spokeswoman for the U.S. Trade
Representative's office, called the ruling a "mixed result" that
did not necessarily mean the United States had to abandon the
"It's too soon to say. We will review the report carefully
and consider its implications. At this time it would be
premature to discuss any specific actions that might be required
to implement the findings," Harmon said.
The dispute centers on the technique of using dolphins to
round up tuna, which the United States says disqualifies some
Mexican tuna products from being "dolphin safe".
Mexico contends the methods its companies use to harvest
tuna do not harm dolphins and the way the United States defines
"dolphin safe" tuna unfairly restricts trade.
According to the U.S. National Oceanic and Atmospheric
Administration, dolphins and tuna often swim together in the
eastern tropical Pacific Ocean in closely packed schools.
The U.S. definition of dolphin safe tuna requires the fish
are caught without using a huge net, known as a purse seine net,
to encircle dolphins and that no dolphins are killed or
seriously injured in the process.
That is more restrictive than the internationally accepted
definition, which does not mention the use of purse seine nets,
NOAA says on its website.
The WTO's Appellate Body found the U.S. labelling rules were
not even-handed and worked "to the detriment of Mexican tuna
products", a decision that Mexico said marked a victory in a
20-year battle in an industry that employs more than 10,000
Mexicans and generated $112 million last year.
"If this decision is not implemented, Mexico has the right,
according to the rules of the WTO, to enact commercial
sanctions," Mexico's Economy Minister Bruno Ferrari said.
DISPUTE DATES BACK TO 1991
Mexico complained about the U.S. rules in 2008, reviving a
trade dispute that first erupted in 1991, and a WTO dispute
panel ruled on the case in September 2011, triggering appeals
from both the United States and Mexico.
The dispute panel said the labeling rules did not
discriminate against Mexico but were more restrictive than they
needed to be to meet the goals of informing consumers and
However, the appeal ruling on Wednesday turned that on its
head, saying U.S. rules were indeed discriminatory but not
U.S. dolphin-safe labeling rules allow tuna products that
meet the standards of the U.S. provisions to be labeled as
dolphin safe, but not if dolphins are deliberately chased and
encircled in order to catch tuna.
Some Mexican fishing vessels use this method when fishing
for tuna, but Mexico says its tuna fishing boats catch only
mature tuna and all have an independent observer on board to
certify no dolphins are hurt.
The U.S. Trade Representative's Office said it disagreed
that the rules were not even-handed.
"The U.S. dolphin safe labeling provisions prevent consumer
deception and are in place to assure U.S. consumers that when
they buy a can of tuna with a dolphin safe label, that tuna was
caught in a way that does not harm dolphins," Harmon said in an
"These provisions also seek to contribute to dolphin
protection by helping ensure that, when consumers favor tuna
products that are dolphin safe, the U.S. market does not
contribute to fishing practices that are harmful to dolphins."
U.S. consumer rights group Public Citizen said the decision
dealt a major blow to consumers' ability to make informed
decisions about their food.
"This latest ruling makes truth-in-labeling the latest
casualty of so-called 'trade' pacts, which are more about
pushing deregulation than actual trade," Todd Tucker, research
director for Public Citizen's Global Trade Watch, said in a
"Members of Congress and the public will be very concerned
that even voluntary standards can be deemed trade barriers."
The appeal ruling follows a judgment in April that said the
U.S. was illegally discriminating against flavored cigarettes
from Indonesia. Consumer groups said the ruling was a setback in
the fight against smoking, especially among children.
(Additional reporting by Doug Palmer in Washington and Adriana
Barrera in Mexico City; editing by Alison Williams and Mohammad