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World Trade Organization Sides with Mexico Over US on Dolphin-Safe Tuna Labeling

World Trade Organization Sides with Mexico Over US on Dolphin-Safe Tuna Labeling

The WTO has found that US opposition to Mexico’s method of catching tuna is discriminatory

The US has promised to appeal the ruling.

The World Trade Organization has sided with Mexico in a debate over the United States’ guidelines for dolphin-safe tuna, which disqualifies Mexican tuna from bearing the label. According to Reuters, the WTO found that U.S. labels “run counter to international trade laws,” and are discriminatory toward Mexico.

"We recommend that the dispute settlement body request the United States bring its measure, which we have found to be inconsistent with [the WTO rules]... into conformity with its obligations," the WTO panel said.

The issue at hand began when, before intervention from conservationists, Mexican fleets used speedboats to herd dolphins and large purse seine nets to catch the tuna swimming beneath them. At the time, without sustainability standards, millions of dolphins were killed in the process.

However, even after Mexico agreed to minimize the number of dolphin deaths in its tuna-catching methods, the United States argued for the right to disqualify tuna caught in the seine nets.

The U.S. definition of dolphin-safe tuna, according to the National Oceanic and Atmospheric Administration, mandates that “no tuna were caught on the trip in which such tuna were harvested using a purse seine net intentionally deployed on or to encircle dolphins, and that no dolphins were killed or seriously injured in the sets in which the tuna were caught.”

Mexico has long contended that the labeling discrimination has kept the country out of the lucrative market for imported canned tuna, which, according to Reuters, was worth approximately $680 million in 2014. Meanwhile, conservationists who continue to oppose Mexico’s methods described the WTO decision as favoring trade over the environment.

The United States has already promised to appeal the decision, a move the Mexican economy ministry has warned could result in measures against the United States, including opposition against U.S. exports.

US, Mexico clash over tuna can labels

New regulations for canned tuna labels are ratcheting up a bitter, years old dispute between the United States and Mexico, with both sides accusing the other of killing large numbers of dolphins in the Pacific.

More stringent requirements kicked in Saturday for companies that want to sell their tuna as “dolphin safe” in the United States. The revision to the Dolphin Protection Consumer Information Act (DPCIA) expands labeling rules for tuna products that are either exported from or sold in the United States.

The move is meant to bring the United States into compliance with international standards following a 2012 World Trade Organization (WTO) ruling that previous U.S. labeling policy discriminated against the Mexican tuna industry.

But the Mexican government blasted the new rules, saying they don’t remedy the violation. The country, one of the United States’ top trading partners, is threatening to impose damaging retaliatory tariffs.

“Mexico will challenge before the WTO that the United States has failed to comply with its WTO obligations,” the Mexican government said in a written statement it issued in response to the new regulations. “Once the U.S. violation is confirmed by the WTO, Mexico will be in a position to impose trade sanctions against the United States.”

While they have not detailed the tariffs, Mexican officials said they would “consider suspending trade benefits across a variety of sectors.”

The dispute centers on differing fishing methods employed by the two nations’ tuna industries. The Mexican “chase and encircle” practice involves the tracking of dolphins, which often swim above large schools of yellow fin tuna.

The fish are then corralled by giant nets designed to allow the dolphins, which swim closer to the surface of the ocean, to “spill” out the top and swim free.

Critics of the method argue that the Mexican industry often uses explosives to slow down the schools and speedboats to catch them, endangering the dolphins.

“It results in significant dolphin mortality,” said Dave Phillips, executive director of the environmentalist group Earth Island Institute. “You can’t in good conscience call that dolphin-safe.”

Under the 1990 DPCIA, tuna harvested in the eastern tropical Pacific via chase and encircle practices cannot be labeled dolphin-safe in the United States.

Since then, the Mexican tuna industry has made great strides in curbing the danger and has cut dolphin deaths by 99 percent, said Mark Robertson, a spokesman for the Campaign for Eco-Safe Tuna, which represents Mexico’s tuna industry.

In 2009, the Mexican government challenged U.S. labeling regulations before the WTO and prevailed last year, when the body found that the regulations create a trade barrier for the Mexican tuna industry.

The United States issued the new rule last week, days ahead of a July 13 WTO-imposed deadline. The rule effectively expands the requirements that tuna producers wishing to obtain the dolphin-safe label verify that chase and encircle methods were not employed regardless of where the fish were harvested.

By broadening the regulations beyond the eastern tropical Pacific to areas where the U.S. tuna industry and other interests primarily operate, the new rule puts all sides on even footing without weakening the restrictions, said Sen. Barbara Boxer Barbara Levy BoxerBottom line Trump administration halting imports of cotton, tomatoes from Uighur region of China Biden inaugural committee to refund former senator's donation due to foreign agent status MORE (D-Calif.), who penned the original law.

“Numerous times over the last 20 years the Dolphin-Safe label has been in great jeopardy, and this new rule will help ensure that the label that customers have come to trust and rely on is protected,” Boxer said in praise of the new rule.

But the Mexican government contends that the methods used should not be a factor, contending that U.S. methods that are deadly to dolphins. Among the techniques employed by the American industry is the use of fish aggregating devices or “FADs.”

The process involves the use of an artificial float or buoy tethered to the ocean’s floor. Small fish tend to congregate beneath its shade, attracting larger fish, including tuna, which are scooped out with large nets.

But the hauls pull in many other creatures, including sea turtles, other fish and seabirds, and many are killed in the process, the Mexican government and industry contend.

In the meantime, Mexican-caught tuna is effectively barred from the market because sellers will not accept any product that cannot be sold as dolphin-safe (fines for falsely labeling tuna as dolphin-safe can be up to $100,000 apiece).

The regulations have taken a major toll on the Mexican economy, Robertson said.

“Damage to the Mexican industry over the past 20 years is in the hundreds of millions [of dollars],” he said.

The Earth Institute’s Phillips scoffed at the suggestion. He maintained that the dolphin deaths are rare and said tuna sellers wouldn’t risk the stigma of selling products caught through the Mexican methods, even if it could be marketed with the label.

“The Mexicans are trying to pull a fast one,” he said.

The WTO could take months to review Mexico’s renewed challenge and determine whether the new regulations are consistent with international standards.

Mexico Can Seek Millions From U.S. In Dolphin-Safe Tuna Dispute, WTO Says

The World Trade Organization deems U.S. labeling rules for dolphin-safe tuna are unfairly restrictive to Mexico. It says Mexico may seek $163.

Mexico has long argued that U.S. labeling rules for dolphin-safe tuna unfairly restrict its access to the U.S. market. And in a decision Tuesday, the World Trade Organization agreed, saying Mexico may seek $163 million annually from the U.S. in retaliatory measures.

The controversial labeling rules, aimed at protecting dolphins from getting ensnared in fishing nets and killed, date back to 1990.

"The U.S. has long criticized Mexico's fishing practices in Pacific waters, saying its use of nets and chasing dolphins to find large schools of lucrative yellow fin tuna greatly harms the mammals," NPR's Carrie Kahn reports from Mexico City.

"The U.S. allows the dolphin-safe label on tuna cans that meet its no-kill standards," Carrie adds. "Mexico says it has brought down dolphin deaths to international standards but has long been refused the label."

Mexico had claimed that its annual losses amounted to $472.3 million, far exceeding the U.S. claim of $8.5 million to $21.9 million. But the WTO put the figure at $163 million a year.

Following the decision, The Associated Press reported, Mexico's government said in a statement that it would " 'immediately ask the WTO's Dispute Settlement Body for authorization to suspend benefits' and also begin an internal process of targeting imports from the United States."

The Office of the U.S. Trade Representative said in a statement that the decision was disappointing, saying it "dramatically overstates the actual level of trade effects on sales of Mexican tuna caught by intentionally chasing and capturing dolphins in nets." The statement added that the trade body did not consider the latest version of the labeling rules.

In Tuesday's decision, the WTO arbitrator stated that the labeling rules restricted the supply of tuna imported from Mexico, but did not agree with Mexico's claim that it was "tantamount to an import ban."

The U.S. had argued that its consumer demand for tuna has declined. But the arbitrator said that while it's not clear why U.S. citizens are buying less tuna, a sharp drop occurred around the same time the labeling rules were introduced in 1990 — which the arbitrator said would be an unusual coincidence.

And counter to the U.S. argument that some of its canneries prefer dolphin-safe fish, the arbitrator said it's plausible that there would be demand for Mexican tuna at U.S. canneries without the restrictions.

Mexico has said for years that its fishermen are "judged more harshly than other fishermen in the world," as Carrie reported back in 2013. She noted that:

"As many as 100,000 dolphins a year were dying due to Mexico's large net fishing tactics that encircles the dolphin pods to get to the huge schools of tuna swimming below. But over the years, those numbers have dropped significantly. Fishermen now use techniques so the mammals can escape. They've banned night fishing. And all boats in Mexico's tuna fleet have independent observers onboard."

But environmental groups such as Earth Island Institute remain unconvinced by Mexico's practices, saying the country's tuna is "stained by the blood of dolphins."

Tuesday's decision isn't the first time the WTO has sided with Mexico in the tuna dispute.

In 2013, in response to a separate WTO decision, the U.S. changed its labeling rules in response to claims by Mexico that it was being unfairly singled out, as Reuters reported. But the news service added that "the WTO said the rule change was not enough."

Tuesday's decision considered the 2013 version of the rule, even though the U.S. changed it again in 2016 "by expanding the tougher rules to all countries," according to Reuters.

It adds that because the WTO didn't consider the latest rules, the long-running dispute will run a little longer, with another decision on the matter expected by the trade body in July.

WTO Nixes “Dolphin-Safe” Labels on U.S. Tuna

Concluding that “dolphin-safe” tuna product labels authorized by the U.S.
Commerce Department “are more trade-restrictive than necessary to achieve
a legitimate objective,” a World Trade Organization (WTO) panel has given a
partial victory to Mexico, which filed a complaint in 2009 claiming that the labels were illegal because they excluded Mexican yellowfin tuna from the
U.S. market and shut down one-third of its tuna fleet.

The WTO panel rejected Mexico’s claim that the U.S. labeling provisions
discriminate against its tuna products, finding “that Mexican tuna products
are not afforded less favourable treatment than tuna products of the US and
other origins in respect of the US dolphin safe labeling provisions on the basis
of their origin.” Still, the panel recommended that the United States be asked
“to bring its measures into conformity with its obligations” under the Technical
Barriers to Trade agreement.

Mexican Economy Secretary Bruno Ferrari reportedly responded to news of the ruling by stating that it is “a crushing blow to the label ‘dolphin-safe’ and opens the way for Mexican producers to enter the U.S. market without restrictions, as is their right.” The United States may appeal the ruling, and Ferrari speculated that, if it did, a final ruling would not be issued until late in the first quarter of 2012. “If such an appeal is again unfavorable and the country chooses not to abide by an adverse ruling, Mexico would have the right, under the rules of the organization, to impose trade retaliation,” he said.

The U.S. advocacy group Public Citizen apparently predicted a WTO backlash
a spokesperson said that a prohibition on these labels “is among the few
things likely to unite Americans across the political spectrum.” See Associated
Press, September 15, 2011.

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3. Tracing the tuna–dolphin issue

Having sketched the main analytical elements that underlie this analysis of the US ‘dolphin-safe’ standard, I now proceed to the process tracing of the events stretching from 1984 to 2017. This section is divided into four subsections, (1) the escalation of the tuna–dolphin issue and GATT findings, (2) the process leading to the IDCPA, (3) IDCPA's judicial repercussions, and (4) the recent developments of the WTO controversy.

3.1 Antecedents: an assertive Congress, a more lenient Executive, and Mexico's complaint (1984–1991)

The eastern tropical Pacific Ocean (ETP) is an area covering more than 18.1 million km 2 from southern California to Chile. For motives unknown, in the ETP schools of yellowfin tuna associate with dolphins – this does not usually happen in other parts of the world, such as the Western Pacific and Indian Oceans. Due to that association, fishermen encircle and set nets on dolphins, knowing that underneath the surface tuna would follow the movements of those air-breathing mammals. In the process, dolphins end up being trapped in the nets and drowned, suffering injuries or experiencing high levels of stress. Deaths amount to more than 6 million since the 1950s (Marine Mammal Commission, 1996). Based on the public outcry that followed the massive incidental killing of dolphins in the 1950s and 1960s, the US Congress enacted the Marine Mammal Protection Act of 1972 (MMPA).

The MMPA prohibits, with certain exceptions, the ‘take’ of marine mammals in US waters and by US citizens on the high seas. ‘Take’ is defined, according to the National Oceanic and Atmospheric Administration (NOAA) as ‘to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal’ (NOAA, 2016). Initially, however, MMPA requirements applied only to the US vessels, leaving US tuna boat owners and fishermen at a competitive disadvantage in relation to foreign vessels (Korber, Reference Korber 1998 Bonanno and Constance, Reference Bonanno and Constance 2010). Following public and private pressure, in 1984 the US Congress passed amendments to the MMPA, specifying that tuna caught using purse-seine nets could only be imported if it was documented that (1) the exporter implemented a dolphin protection program ‘comparable’ to that of the United States, and (2) the average incidental dolphin kill rate was ‘comparable’ to that of the US fleet (Trachtman, 1992, cited in Bonanno and Constance, Reference Bonanno and Constance 2010). The National Marine Fisheries Service (NMFS), a division of the Department of Commerce's NOAA responsible for marine stewardship, threatened to ban tuna imports from Latin American countries if they did not reduce their killing of dolphins, but have not been diligent in applying the law, according to environmental groups (Shabecoff, Reference Shabecoff 1988).

Senator John Kerry (D-CO) considered that the Department of Commerce and the Department of State had demonstrated ‘malaise’ in addressing the issue, to which the NMFS responded by stressing its complex nature (Shabecoff, Reference Shabecoff 1988). In 1988, a new amendment was approved to deal with the ‘foreign fleet issue’. As pointed out by Senator Breaux (D-LA) during the hearing on the reauthorization of the MMPA (4 April 1988), ‘the program is working in the United States. The problem is not with our tuna industry. The problem is with the foreign fishermen, who take four times more porpoises than our industry does’. The dolphin issue gained more attention after a 1988 footage made by biologist Samuel LaBudde, showing the Panamanian vessel Maria Louisa setting nets on dolphins and killing many in the process. The footage triggered boycotts against the tuna industry that gave more salience to the discussion. Restaurants boycotted tuna by taking it off their menus, and even the city commissioners of St. Petersburg Beach did the same and urged residents to follow suit (Curtin and Eastman, Reference Curtin and Eastman 1989).

However, enforcement of the 1988 amendment was again considered deficient. The Department of Commerce stated in 1988 that the new rules would be implemented after the amendment, but that they would take three years to take effect. According to Senator John Breaux (D-LA), a ‘final interim’ rule took so long to be issued by the NMFS because of concerns that moving too fast and too abruptly against foreign nations might push them to seek alternative markets for their tuna. The fear was that ‘the companies could forget about the US and fish with impunity on the dolphins’, as said by a congressional representative (Weisskopf, Reference Weisskopf 1988: 1). In a hearing, Charles Furlleton, then director of the NMFS, said that ‘it's a very delicate operation to get those regulations. We developed some over a year ago, which were not acceptable to either the tuna industry or the foreign nations’ (Brower, 1989, cited in Bonanno and Constance, Reference Bonanno and Constance 2010: 61). As expected, the administration took into consideration both domestic and international constraints and was concerned about repercussions in terms of its relation to third countries.

In February 1989, the Ninth Circuit Court of Appeals required that US tuna vessels in the ETP had a certified observer. In addition, a judicial decision ordered the application of import bans on countries that did not show comparability as required by the MMPA amendments. The Secretary of Commerce and the Secretary of Treasury defended themselves by mentioning the complex nature of the calculations and the time constraints. In 1992, the Ninth Circuit again ruled in favor of the EII when addressing the embargo to intermediary nations, the so-called ‘secondary embargo’. Footnote 4 The 1984 and 1988 amendments were supported by the US tuna industry, which opposed the approval of the MMPA in 1972 (DeSombre, Reference De Sombre 2000). These groups, not able to revert the MMPA, found in the enforceability of US rules to foreign countries a reasonable solution to a growing loss of competitiveness in face of foreign fleets. For instance, the American Tuna Foundation strongly advocated in favor of import regulations in Congress hearings: ‘The US tuna industry believes that the import regulations of March 18, 1988 were long overdue’ (Burney, Reference Burney 1988: 115). Congress, along with the initial idea of using market access to enhance protection to dolphins, also corroborated the idea of shielding the US tuna industry from ‘environmental dumping’. For environmental NGOs, on the other hand, that would be the opportunity for more stringent rules on dolphin protection.

However, fishermen and tuna boat owners were not satisfied with the need to have observers onboard US vessels in the ETP, given the costs of adapting to the regulation. The government and the tuna industry considered that the addition of observers would hurt trade while few dolphins would be saved (New York Times, 1989). When, in 1989, Barbara Boxer (D-CA) proposed the creation of a legislation to establish a ‘dolphin-safe’ label for tuna products, both the Bush Administration and the US tuna industry opposed it (Bonanno and Constance, Reference Bonanno and Constance 2010). They considered that it would reduce tuna stock by forcing the harvesting of young fishes, also arguing that the legislation would threaten the US tuna fleet and be difficult to enforce (Meinert, Reference Meinert 1989). At this point, it was already possible to note, as expected, that the US tuna fleet was in favor of comparability measures that would put them on an equal footing with foreign vessels, but not in favor of regulations only applicable to the ETP region.

The level of public salience of the tuna–dolphin issue, which was already high, reached a completely new level after the Panamanian vessel footage. With the amendments to the MMPA and consumer boycotts, the mood of Congress was favorable to the adoption of even more strict measures for the protection of dolphins. Congress had been attracted by the appeal of the ‘charismatic mega-fauna’ campaign launched by NGOs such as the EII, which offered a simple and effective message to the US public. The EII launched a campaign for ethical tuna fishing and in 1990 created a ‘dolphin-safe’ label that would only be granted to tuna that was not caught by encircling dolphins. The NGO, by means of its International Marine Mammal Project (IMMP), focused on reducing the killing of dolphins to zero. In April 1990, as a result of the consumer boycotts, the three largest sellers of canned tuna in the US – StarKist, Chicken of the Sea, and Bumble Bee – announced they would stop buying tuna caught in nets that also encircled dolphins (Baird and Quastel, Reference Baird and Quastel 2011).

The EII's level of mobilization was high and Congress, particularly the Democrats, felt the attention given by US consumers to the tuna–dolphin issue. In that context, the EII consumer campaign was particularly successful and contributed to the approval of the Dolphin Consumer Protection and Information Act (DCPIA) in the fall of 1990, largely reflecting its concerns (Baird and Quastel, Reference Baird and Quastel 2011) and the ethical concerns of the American public. The DPCIA prohibited producers, importers, exporters, distributers, or sellers from labeling as dolphin-safe any tuna product from the ETP unless it was certified that the boats did not set nets on dolphins. Less well known, although equally important, is the fact that the DCPIA did not allow tuna from any part of the globe to be labeled ‘dolphin-safe’ if the boat used driftnets. The issue of driftnets has become a top priority among NGOs, including the EII, and reached considerable political salience in the 1980s. In 1989, the United Nations General Assembly approved Resolution 44/225 demanding that ‘immediate action should be taken to reduce progressively large-scale pelagic driftnet fishing activities’ (UNGA, 1989), considering, furthermore, that the practice should cease to exist by 30 June 1992. The DCPIA did not per se bar the imports of tuna, simply creating a labeling scheme. Nevertheless, works show that the ‘dolphin-safe’ label did affect consumer behavior (Teisl et al., Reference Teisl, Roe and Ricks 2002), and, in this case, became a de facto barrier against non-‘dolphin-safe’ tuna caught in the ETP region.

The DPCIA resulted in a significant decline in the mortality of dolphins in the ETP and contributed to reducing large-scale drift-netting in the Western Pacific and Indian Oceans (Baird and Quastel, Reference Baird and Quastel 2011). This evidences that the DPCIA was not focused on Latin American countries only, contrary to what would be expected by those who considered the law an act of environmental protectionism. The driftnet discussion is much bigger than its connection with the tuna industry, and its undebatable environmental impact amplified international and US domestic opposition against its use. The use of purse-seine nets and the technique of encircling dolphins, in turn, generated debates on whether these methods were more harmful to the ecosystem than others, and became the symbol of the tuna–dolphin controversy.

The acceptance of the ‘dolphin-safe’ label by big tuna canneries is associated with their relocation to Asian countries (Korber, Reference Korber 1998). In the beginning of the 1990s, cheap tuna could be bought from other areas of the world, where tuna did not usually associate with dolphin, particularly the Western Pacific and Indian Oceans, and could quickly be transported to big canneries installed in Thailand, which packed and then exported the tuna to the US (Baird and Quastel, Reference Baird and Quastel 2011: 341). As such, it was much easier for canneries to avoid the heavily regulated ETP region. These operators would have been affected by the DCPIA's provision on driftnets, but had already compromised to not use such a method given the pressures from consumers. August Felando, president of the American Tunaboat Association, called the decision to buy ‘dolphin-safe’ tuna a ‘market ploy’ to increase tuna sales. The US tuna industry differed from tuna canners in that it was very concerned with the labeling requirements, and considered that the measures would negatively impact the US tuna fleet (Shabecoff, Reference Shabecoff 1990). In parallel to this economic aspect, expected by the framework, tuna boat owners also displayed ecosystemic concerns related to the bycatch of juvenile tuna.

Mexico, one of the main countries affected by the embargoes raised by the United States and by the ‘dolphin-safe’ label, complained to GATT. Footnote 5 Mexico asked for a panel in February 1991, which reported back to the parties on 3 September 1991 with the following conclusions:

1. that the US could not embargo imports of tuna products from Mexico simply because Mexican regulations on the way tuna was produced did not satisfy US regulations.

2. that GATT rules did not allow one country to take trade action for the purpose of attempting to enforce its own domestic laws in another country — even to protect animal health or exhaustible natural resources. (WTO, 2016)

The panel was also asked to judge the US ‘dolphin-safe’ label, but concluded that ‘it did not violate GATT rules because it was designed to prevent deceptive advertising practices on all tuna products, whether imported or domestically produced’ (WTO, 2016). The case was settled ‘out of court’, with Mexico postponing further action.

As an immediate result, in 1992 the United States went along with a multilateral agenda for the catching of tuna in the ETP. In that context, the administration would ‘look for a solution to this long-standing controversial matter, one which would reduce dolphin mortalities even faster and remove the trade sanctions’ (US Department of State, 1992). GATT's findings provoked rage by many environmental groups, such as the EII and the Humane Society, that considered the GATT privileged trade at the expense of the environment. Concurrently, the US Department of State positioned itself in favor of foreign fleets – not just the Mexican – by highlighting their commitment to dolphin protection and by stating that it would not support ‘any dolphin conservation bill that would install enhanced trade sanctions in US law that are so onerous as to create disincentives for international cooperation on this matter’ (US Department of State, 1992). The concern with international cooperation comes to the fore in the Executive's position, as shown in the analytical framework, and mediates the environmental stance taken by the administration.

This section was intended to offer an account of the antecedents of the policy changes in the US ‘dolphin-safe’ label and to point out the preferences of the main policy actors involved in the issue. It showed that Congress was faced with an attentive public, while canners and fishermen were divided according to their dependency on the ETP region. In addition, this section showed that bureaucratic concerns lied beyond environmental protection and beyond the concern of impeding US tuna fleets to be at a competitive disadvantage. These elements were present, but the actions of the US bureaucracy were also related to the international implications of more stringent rules applied to foreign fleets. In addition, the GATT ruling made it clear that assertive measures might not be feasible due to possible retaliation and reputational costs coming from abroad. However, as presented in the next subsection, the position of the US Executive, in the frontier between domestic and international constraints, also gave it a strategic advantage to push for a given understanding of the ‘dolphin-safe’ standard.

3.2 Policy change in progress: multilateral compromises and domestic coalitions leading to the IDCPA (1992–1998)

Even after the 1991 GATT consultations, US Congress was hesitant to leave aside its hardline stance on dolphin protection. The Executive, in turn, was looking for a more flexible approach to sanctions and tuna labeling in view of international constraints. To find a middle ground, in June 1992 the United States approved the International Dolphin Conservation Act (IDCA), which was also an attempt to settle the GATT case. The IDCA resulted from an agreement between the US, Mexico, and Venezuela and would (1) impose a five-year moratorium on the harvesting of tuna with purse-seine nets and (2) lift tuna embargoes on those nations making a declared commitment to implement the moratorium and take further steps to reduce dolphin mortality (Inside US Trade, 1993). However, environmental groups were able to press Congress for stricter provisions (Inside US Trade, 1993). This led both Mexico and Venezuela to say afterwards that they would not implement the moratorium because the United States ‘had substantially raised the economic stakes of the compromise’ (Inside US Trade, 1993). As presented by the analytical framework, these events show that (1) the preferences of the Executive and Congress were not in alignment, and that (2) despite the unilateral elements present in the IDCA, foreign countries were willing to offer concessions to a certain limit in order to reach an agreement.

An element that served as an argument in favor of the more assertive position taken by Congress was the fact that NAFTA was being negotiated at the same time Mexico and the US tried to find a solution to the tuna–dolphin issue (Ferguson, Reference Ferguson 1993). Barbara Boxer (D-CA), for instance, stated that ‘Mexico's challenge of [a] United States environmental law that protects dolphins doesn't speak well for its claim to be a full partner in the protection of the environment under the United States–Mexico trade agreement’ (Musgrave and Stephens, Reference Musgrave and Stephens 1993: 969). All things considered, the tuna–dolphin controversy was politically sensitive (Wright, Reference Wright 2000) and framed as a NAFTA issue by environmental groups, which relied upon its public salience to push for their objectives (Inside US Trade, 1993). In such a context, the United States had bargaining power vis-à-vis Mexico as the NAFTA negotiations were taking place and the Mexican government did not want to hurt its chances of getting a compromise approved by the US Congress (Bradsher, Reference Bradsher 1991).

On the other hand, the Department of State and the Department of Commerce were pushing the US Congress to accept that access to the US market might no longer be enough of a motive for developing countries to achieve further dolphin mortality reduction. According to the agencies, foreign countries considered that the US market was closed because of the embargoes and the ‘dolphin-safe’ label. As such, the administration advocated in favor of changing the tuna label and lifting embargoes, despite the willingness by Congress to keep such a label by means of approving DPCIA and despite the court decisions that ordered embargoes years before. As part of the administration's strategy, the La Jolla Agreement was finished in March 1992. This agreement did not focus on fishing methods – the object of Mexico´s complaints – and instead on results (IATTC, 1997). Instead of a zero mortality goal, as advocated by the EII, the agreement aimed at an 80% reduction in dolphin mortality between 1993 and 1999. Both the IDCA and the La Jolla Agreement reflected the interests of the US Executive to mediate international trade and environmental protection to forge a win set between domestic and international constraints.

The countries that signed the La Jolla Agreement tried to press the US administration to take action by saying they would abandon the agreement in favor of a less restrictive multilateral arrangement (Wright, Reference Wright 2000). In turn, the US administration, willing to enter into an agreement, could make use of the threats made by the Mexican government to put pressure on Congress and ‘get rid of an irritation’ in the relationship between Mexico and US, as stated by an official (Inside US Trade, 1994). In other words, the US administration used foreign signals to convince a hesitant Congress. In that context, there were some bills showing up on the horizon, aiming at lifting US embargoes and changing the ‘dolphin-safe’ label. The tuna–dolphin issue became divided along partisan lines, with Republicans pushing for a more flexible standard and Democrats pushing for a hardline approach to dolphin protection, led by Barbara Boxer (D-CA) and other Democrats from California. In 22 August 1995, a legislation was formally introduced by Randy Cunningham (R-CA) who had the intention of lifting the US tuna embargoes and base US laws on the Inter-American Tropical Tuna Commission (IATTC), which would in practice mean a change in the US labeling system (Inside US Trade, 1995a). Another attempt to forge a win set between international and domestic pressures took place with the Panama Agreement, signed in October 1995. The agreement would allow tuna to be labeled ‘dolphin-safe’ even when encirclement techniques were used, as long as no dolphin was harmed in the process.

Along with the Panama Agreement, John Breaux (D-LA) and Ted Stevens (R-AL) introduced legislation to lift the US tuna embargo and change the ‘dolphin-safe’ definition, insofar as the other countries taking part in the agreement converted it into a binding commitment (Inside US Trade, 1995c). Congressional representatives also saw electoral advantages in promoting the return of the US fleet to the ETP, as it would ‘bring new tuna processing jobs to California’ (Eco-Safe Tuna, Reference Tuna 2016). Outside the ETP, the US fleet had much more competition, and the smaller vessels just could not travel too far. For the administration, the support of the US fishermen was useful to give legitimacy to its efforts to build a winning coalition pro-policy change.

Some environmental groups such as Greenpeace, National Wildlife Federation, World Wildlife Fund (WWF), Environmental Defense Fund, and Center for Marine Conservation manifested themselves in favor of an international agreement (Woolf, Reference Woolf 1997). This group had an ecosystemic approach to conservation and considered that the increased use of ‘dolphin-safe’ fishing methods would harm biodiversity by increasing the discard of juvenile tuna and the bycatch of non-target species (Marine Mammal Commission, 1996: 103). They condemned, for instance, the use of Fish Aggregating Devices (FADs) – floating objects strategically placed to attract fish – which could involve the use of purse-seine nets, but not the encircling of dolphins. They differed from the EII to the extent that the latter had a specific focus on dolphin protection by reducing mortality to zero. Greenpeace's position on the bycatch of juvenile tuna was close to the one defended by the American Tunaboat Association when opposing the requirement of not setting nets on dolphins (Shabecoff, Reference Shabecoff 1990) and, as such, shows that the division between environmental and industry concerns can be blurred at times. Footnote 6

The support from Greenpeace and other NGOs could be used by the US Administration to persuade swing voters (Inside US Trade, 1995b). In addition to that, the US Executive was trying to make the point that foreign fleets had displayed their commitment to lower dolphin mortality as expressed in the considerably lower number of fatalities (Inside US Trade, 1995b). Also, in a letter to the Mexican government, Clinton asserted that getting the Panama Agreement ratified by the US Congress ‘is a top priority for my Administration and for me personally’ (Inside US Trade, 1996c). As such, Clinton was willing to assume a relevant role in pushing for an agreement. Once more, this shows the interest of the administration in promoting a compromise that would balance international constraints (WTO decisions, trade and diplomatic relations) and domestic demand for environmental protection.

The idea shared by the US administration, by US fishermen, and by Republicans was that the dolphin protection laws had served their purposes (Fiore, Reference Fiore 1995). Specific environmental groups took part in that coalition as they believed in the need to shift the focus from a dolphin-protection approach to an ecosystemic one. With opponents of the existing ‘dolphin-safe’ label and embargoes gaining momentum, Barbara Boxer (D-CA) and Joseph Biden (D-DE) proposed an alternative to the Breaux–Stevens bill, Footnote 7 keeping some important parts intact, particularly relative to the lift of embargoes, but dropping any changes in the ‘dolphin-safe’ label. A compromise between Republicans and Democrats was not that easy because Democrats, such as Gerring Studds (D-MA), insisted that no changes in the ‘dolphin-safe’ label should take place before a scientific study had been conducted to determine the long-term effects of encirclement and net-setting on dolphin reproduction and mortality (Inside US Trade, 1995a).

In that regard, the Boxer–Biden bill proposed two scientific studies, one on the problem of bycatch that might result from catching tuna using methods other than setting nets on dolphins and the other on the reproduction and mortality effects of using nets to encircle dolphins (Inside US Trade, 1996b). If, on the one hand, Republicans, the Clinton administration, and Greenpeace were in favor of an immediate change in the tuna label (Inside US Trade, 1996a), some Democrats stated that they would not go against a bill that would entertain the possibility of some sort of long-term ‘stress’ study. As such, in favor of a compromise, both Democrats and Republicans made specific concessions and entertained the possibility of a stress test on setting nets on dolphins, giving less attention to other fishing methods such as FADs, however. According to a senator, the concession offered by policy change supporters would require the administration to ‘prove a negative’, in other words, to show scientifically that encirclement did not have significant effects on dolphin populations (Inside US Trade, 1996a).

According to Table 1, scientific research conducted later on show that both purse-seine nets and FADs can in some way lead to bycatch of endangered specifies as well as to changes in the eating behavior of tuna. However, the absence of requirements for stress tests for FADs seemed to be associated with two main factors (1) with stress tests for alternative methods, supporters of a policy change would have to both prove that FADs were harmful and that encircling dolphins was not, giving more margin for contestation (2) in spite of some early works (Hall, Reference Hall 1998) pointing out that FADs lead to thousands of times more bycatches than setting nets on dolphins, the idea of killing these mammals, in whatever amount, was hard to conceive at that moment.

Table 1. Selected recent studies on the effect of purse-seine nets and FADs

Plastic Scaremongering

Another item on Earth Island Institute’s radical agenda includes eliminating the use of plastics. To achieve this, the organization runs the Plastic Pollution Coalition, “a global alliance of individuals, organizations, businesses and policy-makers working toward a world free of plastic pollution and its toxic impacts on humans, animals and the environment.”

To scare the public about the “danger” of plastic, the Coalition promotes dubious studies claiming that plastic is toxic. For instance, the Coalition calls on the Food and Drug Administration to ban bisphenol-A, a key component in plastics that has been widely studied and determined to be safe at normal exposure levels by a large body of research.

In fact, scientists with the FDA and the National Institute of Health recently published two major studies that, according to researchers, “both support and extend the conclusion from the U.S. Food and Drug Administration that BPA is safe as currently used.” The overwhelming amount of research showing BPA’s safety at normal exposure levels has led government regulators, including the European Food Safety Authority, to conclude that BPA is far less risky than some advocacy groups suggest.

Despite clear evidence to the contrary, the Plastics Pollution Coalition still claims that if individuals “want to lose weight, reduce your risk for heart disease and cancer, and ward off diabetes” they should avoid canned food or plastics containing BPA.

The Coalition works to promote plastic-free college campuses and even plastic-free towns. Even plastics not made with petroleum aren’t approved by the coalition—plant-based plastics must meet a rigorous set of standards to receive the coalition’s approval, including a ban on plastics made from genetically modified plants.

NOAA expanding dolphin-safe tuna certification requirements

When the World Trade Organization found last year that U.S. labeling requirements for dolphin-safe tuna put Mexican tuna fishermen at a trade disadvantage, marine advocates worried that the federal government would weaken its dolphin-safe standards.

Instead, a proposed rule published Friday by the National Marine Fisheries Service would expand the certification requirements.

In the eastern tropical Pacific -- which roughly extends from San Diego west to Hawaii and south to Peru -- dolphins and large yellowfin tuna swim together in closely packed schools. To catch tuna in that part of the world, fishing fleets chase dolphins and encircle them with huge nets, known as purse seines, to gather the tuna below.

Although techniques have been developed to let dolphins escape the nets near the surface, chase and encircle can be lethal for the marine mammals. Tuna caught in that manner cannot be labeled dolphin-safe, a condition that sparked the trade complaints from Mexico.

The government’s answer to the dispute is to expand some of the dolphin-safe conditions it has imposed on purse seine fishing in the eastern Pacific that doesn’t employ chase and encircle.

Regardless of the fishing gear used or where the tuna was caught, for all tuna products labeled dolphin-safe, fishing boat captains and any on-board observers would have to certify that “no dolphins were killed or seriously injured.”

The revised rule would also require that a tuna catch designated as dolphin-safe be stored and unloaded separately from tuna caught in a harmful manner.

“What we’re trying to do is to bring everybody all around the world to the same standard as we’ve been applying in the eastern tropical Pacific,” said Kevin Chu, deputy southwest regional administrator for the national fisheries agency.

Sen. Barbara Boxer (D-Calif.), the author of the 1990 dolphin-safe tuna law, praised the proposal, which will be open to public comment for 30 days.

“Numerous times over the last 20 years the dolphin-safe label has been in great jeopardy,” she said in a statement. “I am pleased that the National Oceanic and Atmospheric Administration has reaffirmed its commitment to protecting the integrity of this label that consumers have come to trust and rely on.”

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Bettina Boxall covered water and the environment for the Los Angeles Times before retiring in 2021 after 34 years at the paper. She shared the 2009 Pulitzer Prize for explanatory reporting with colleague Julie Cart for their five-part series on the causes and effects of escalating wildfire in the West.

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2. The key issues in the cases


The context of the US–Cloves case is the long-standing and intensifying efforts of the United States to address the immense public-health consequences of tobacco use and addiction through a variety of regulatory approaches. Based on evidence that cigarettes with added flavors have a particular capacity to attract young people to smoking, the United States moved towards the banning of such cigarettes, in particular in the dispute at hand, clove cigarettes, which are almost overwhelmingly foreign-produced Indonesia, the complainant in this case, having the bulk of the US market share. However, the US measure exempted menthol cigarettes, which are used by a hugely greater number of smokers than cloves. The Panel found that the US measure violated the national-treatment provision of TBT (Article 2.1). It applied a two-step approach, first of all examining whether Indonesian clove cigarettes and US menthol cigarettes were ‘like products’ and then, having found that they were, it considered whether there was less favorable treatment of cloves than menthol. To determine whether the products were ‘like’, the Panel used an approach (disapproved before and after this ruling by the Appellate Body) that considers likeness from the perspective of the defending Member's regulatory objectives. Here the objective was taken as preventing young people from getting addicted to cigarettes through their attraction to flavored cigarettes since both cloves and menthol were flavored, they were like products from this perspective. With respect to less favorable treatment, the Panel found that since the vast bulk of clove cigarettes were imported and menthol cigarettes domestically produced, there was less favorable treatment of the group of imported products in relation to the group of domestic products. In coming to this conclusion, the Panel ignored arguments by the United States that there were significant differences in the regulatory challenges posed, respectively, by bans on clove and menthol cigarettes. Since the latter were already smoked by millions of people, the health issues of dealing with their dependency on a product no longer permitted (and the related issues of a possible black market) made banning menthol a vastly different undertaking than in the case of a specialty product like cloves.

At the same time, the Panel found the US measure justified under Article 2.2 of the TBT. While Indonesia had proposed a variety of other forms of tobacco regulation that it claimed were less restrictive than an outright ban on clove cigarettes, the Panel held that each of these alternatives was merely asserted by Indonesia as hypothetically open to the United States, but without proof that it was reasonably available and would, in fact, achieve, to the same extent as a ban, the level of protection against the public-health effects of smoking.

The Appellate Body, while considerably modifying the Panel's legal interpretations with respect to TBT 2.1, including the use of regulatory objectives to determine whether products are ‘like’, upheld the finding of a national-treatment violation. The Appellate Body essentially based its ruling here on the Panel's finding of fact that the United States had not adequately shown that the difference in magnitude and kind of the regulatory challenge, posed by banning menthol cigarettes, justified the decision to ban cloves not menthol as legitimate and nondiscriminatory and therefore as consistent with treatment ‘no less favorable’.

US–Tuna II

In US–Tuna, Mexico challenged a US measure that monitored and enforced a private voluntary label on tuna, the ‘dolphin-safe’ label. While Mexico made some polemical claims that the US measure was ‘coercive’ and was not in the spirit of international cooperation with respect to dolphin conservation under the Agreement on the International Dolphin Conservation Program (AIDCP), a regional intergovernmental regime for dolphin protection, its more precise legal claims focused on two aspects of the US measure. First of all, as interpreted by the US Courts, the US legal framework required the prohibition of the use of the label on tuna marketed in the United States in any instance where the tuna was caught by a method involving encircling or setting upon dolphins. This method is attractive to tuna fishers in the Eastern Tropical Pacific (ETP), where Mexican boats fish for tuna, because in that region dolphins are known to swim with tuna. Mexico argued that by not allowing tuna fished in this way to be certified as dolphin-safe, even if no actual dolphin was killed despite the encircling or setting upon of dolphins, the United States violated Article 2.1 of TBT since this was a method typically used by Mexican fishers, not allowing it to qualify for ‘dolphin-safe’ labeling de facto limited the competitive opportunities for Mexican tuna in the United States.

Secondly, Mexico claimed that, while the United States had a strict monitoring and enforcement scheme for tuna originating in the ETP, with respect to tuna fished outside the ETP the United States allowed the label ‘dolphin safe’ to be used based upon the self-declaration of the captain of the fishing vessel that no dolphins had been set upon and no dolphins killed. Mexico did produce some credible evidence that there was genuine harm to dolphins from tuna-fishing outside the ETP, thus putting into question the justification for treating tuna from the two geographic regions so different. Since the United States made a distinction based upon geographical origin of the tuna, requiring much stricter regulatory enforcement within the ETP, the area where Mexican tuna was sourced, Mexico argued that there was a national-treatment violation. The Panel tended to conflate these rather different claims into a single claim of de facto discrimination with respect to the requirement of not setting on dolphins. While finding that Mexican ‘tuna’ and US ‘tuna’ were like products, the Panel rejected the conflated claim, based on the observation that at the time the measure was introduced both US and Mexican fishing boats were using the method of setting upon dolphins, and thus the initial competitive effect on US and Mexican tuna of the banning of this method was the same. The choice of US fishers to avoid the method in order to be able to have their tuna certified as dolphin-safe and the Mexican fishers not to do so was a business decision, and did not reflect any lack of even-handedness in the requirement itself.

A threshold issue in the Tuna case was whether the US measure fell within the definition of a ‘technical regulation’ given that it was not a mandatory labeling scheme there was no requirement that tuna be labeled for dolphin safety (or unsafety). The measure merely ensured that when the claim ‘dolphin-safe’ was made, certain criteria were followed that provided an adequate assurance that dolphins were not being killed or hurt. Even though, to use the precise definitional terms of ‘technical regulation’ in TBT, the US measure did not make the characteristic in question – ‘dolphin safety’ – mandatory for the product, which was defined as ‘tuna’ to be marketed in the United States, the Panel found that the measure was a technical regulation because it had some mandatory features. This is a very controversial finding, which has now been upheld by the Appellate Body, and we will make some criticisms of it in our analysis below.

Mexico also argued that there was a violation of TBT 2.2 because the US objective of informing consumers and protecting dolphins could be achieved if the United States were to permit both the label that it was now, in effect, imposing as the sole label and the alternative AIDCP dolphin-safe label, the latter allowing tuna to be caught in setting upon dolphins. According to Mexico, consumers could make an informed choice and if they wanted to ensure that tuna was not caught through setting upon dolphins, they could always choose the label certifying to that effect. The Panel held that, while having both labels freely available could create consumer confusion, it would be a less trade-restrictive alternative, provided that this confusion was avoided through a requirement that the label on each can of tuna be accompanied by explanatory language that indicated the precise claims behind the particular label at issue. It is surprising that the Panel would find a violation of 2.2 based on the failure to adopt this information-intensive least-restrictive alternative of explanatory tuna labels, since it was never proposed by Mexico, and never discussed in the pleadings or the hearings.

Finally, Mexico claimed that the United States was in violation of TBT 2.4 because it did not use the AIDCP alternative labeling scheme as a basis for its regulation. Mexico argued that the AIDCP was an international standard within the meaning of TBT 2.4. The Panel held that the AIDCP was an international standardization body, even though it is a regional organization to which only a small subset of WTO adhere, because at a particular point in time in the history of this organization there was a possibility for interested states outside the region to join it as parties to the treaty (this window had long passed). However, the Panel ultimately determined that there was no violation based on the finding that the standard was inappropriate and ineffective to achieve the US objective, since that objective concerned avoiding harms to dolphins explicitly connected to the technique of setting upon them, such as stress and trauma.

The Appellate Body reversed the Panel's finding of a violation of TBT 2.2 and significantly altered its analysis of 2.1 and 2.4, but ultimately found a violation of 2.1 given the rather sharp discrepancy of treatment in the US scheme between tuna fished in the ETP (the operating zone of Mexican tuna fishers) and outside the ETP, the AB held that there was a lack of evenhandedness, constituting a violation of 2.1 based upon the methodology it had set out in Cloves.


The US–COOL case concerned a mandatory labeling scheme for the country of origin of a number of food products the dispute however centered on the mandatory labeling of meat. The complainants, Mexico and Canada, claimed that the labeling scheme violated Article 2.2 of the TBT Agreement, in that the challenged measure in fact did not serve to fulfill the objective in question. In the COOL case, the United States required that the country of origin of the meat in question be disclosed through the employment of a series of labels applicable to different situations. A US-origin label was to be used to designate ‘beef [or] … pork … derived from an animal that was … exclusively born, raised and slaughtered in the United States’ (Label A). A ‘Multiple Countries of Origin’ label was to apply where there is more than one country of origin in that, at different stages, the animal was in different countries – for example, born in Canada and raised in the United States or born and raised in Canada and slaughtered in the United States (Label B). A third label applied where the animal was in the United States only at the stage of slaughter (Label C). A final label addressed the situation where an animal was in a particular foreign country at all stages (‘Foreign Origin-D’). Additionally, in the case of ground meat and chicken products, the label must list all countries of origin or all ‘reasonably possible’ countries of origin. Canada and Mexico argued that this multi-label approach did not fulfill the US objective of providing as clear and accurate information as possible to consumers with respect to the origin of their meat, since the B and C labels and the ground-meat labeling were ambiguous and confusing in indicating to consumers that the meat could come from one or more of a number of countries. Canada and Mexico maintained that to be in fulfillment of the US legitimate objective, i.e. to be ‘clear and accurate’, labeling would have to indicate not merely the possible range of countries where the animal might have been at some stage, but in respect of each individual package of meat, which country it actually was in at each of the stages and for how long.

The Panel in COOL agreed with the complainants that the measure did not serve the US objective of providing consumers with clear and accurate information concerning the national origin of the products at issue, and on this ground it found a violation of 2.2. (As will be discussed more thoroughly below, the legal interpretation underlying this finding is highly questionable.) Under Article XX (Brazil–Tyres Footnote 11 ), a measure must be in relation to an objective covered by the treaty provision, must make a material contribution to that objective, and must be least-trade-restrictive in the sense that there is no reasonably available alternative measure that achieves the level of protection sought by the regulating measure, i.e. reduces the risk to the level deemed acceptable for that society by the authorities of the regulating measure. There is no requirement that the measure achieve the objective sought to the greatest extent possible. Yet the COOL Panel read this into 2.2 of the TBT Agreement. Indeed, a requirement that a Member's measure achieve a legitimate objective to the greatest extent possible would be inconsistent with the right under TBT of a Member to choose its level of protection, which the Appellate Body has recently in its Report in US–Cloves (subsequent to the COOL Panel decision) affirmed as fundamental to the object and purpose of the TBT Agreement. A Member could choose a high level of protection, but limitations in resources and other legitimate public-policy objectives might not allow it to fully achieve that level of protection. This is one reason why a Member's level of protection cannot be simply inferred from the measures it adopts. The fundamental obligation of least-trade-restrictiveness does not require that a measure achieve a Member's level of protection it only requires that there be no alternative reasonably available alternative measure that makes an equal (or greater) contribution to the achievement of that level of protection. This criticism of the Panel will be pursued in some detail below. The Panel also made questionable factual assumptions or interpretations about the nature of the labeling scheme and how it would affect consumers' choices.

In reasoning that is extremely difficult to understand, the Panel also found a violation of TBT 2.1, National Treatment. Its reasoning seemed to center on the scenario that a meat producer that wanted to be able to sell some of its meat under the US origin label would, if it also wanted to produce meat products from imported livestock, be faced with regulatory costs in segregating the imported livestock from the domestic livestock in any stage of production taking place in the United States. Otherwise it would compromise its ability to label the meat from the US livestock as of US origin. As a consequence of this additional regulatory cost, the Panel reasoned, imported livestock would be less attractive at the margin than US livestock, thus leading to less favorable treatment of the imported livestock. Here the Panel appears not to have, as it would be expected to, compared the group of like imported with the group of like domestic products. Thus, some meat producers who found it highly profitable to process foreign-origin meat using US livestock as well, might not do so because of the regulatory costs of segregation involved in using US livestock in addition to foreign livestock. In each instance, it would be market considerations that would determine whether, at the margin, a particular producer might be inclined to avoid using US or avoid using imported livestock, due to the additional regulatory costs of using both imported and domestic as inputs.

Finally, the Panel dismissed a claim of violation of Article 2.4, largely on burden-of-proof grounds.

The Appellate Body reversed the Panel's finding of a violation of 2.2 of TBT but found a violation of 2.1. Using the methodology it developed in Cloves, the AB found a lack of evenhandness in that, where dealing with imported meat, processors would have to fulfill more complex or costly traceability requirements, holding information about each stage of production. This was not justified as a legitimate regulatory distinction because much of the information in question was not strictly speaking needed in order to verify the bona fides of what was being stated on the actual consumer label.

Mexico can net $163 million annually from U.S. over tuna trade case

While the U.S. wages a trade war with Canada, Mexico just claimed a big one that got away.

A World Trade Organization panel ruled that Mexico can impose a $163 million per year sanction on the United States.

That's the amount America's southern neighbor claims it has lost annually because the U.S. didn't buy tuna it claimed wasn't up to snuff.

Mexico's beef with the tuna goes back nearly a decade, when it asserted the U.S. was unfairly targeting the country over its dolphin-free regulations, the complaint indicates.

The complaint claimed the U.S. didn't require as much proof from other countries that it did from Mexico.

The U.S. changed some of its requirements about its dolphin-friendly label after first losing in 2013, according to Reuters. But the WTO said Mexico still wasn't treated fairly.

The government expanded its regulations to all countries last year, and the trade group will determine this summer if it's stopped singling out Mexico. The nation has to stop its action if the WTO determines the U.S. is now playing fairly.

"Regrettably, the WTO Arbitrator's decision does not take into account the United States' most recent dolphin-safe labeling updates and dramatically overstates the actual level of trade effects on sales of Mexican tuna caught by intentionally chasing and capturing dolphins in nets," a spokeswoman for the U.S. Trade Representative's office told Reuters. "We will continue to monitor the situation and closely consult with Congress and stakeholders about next steps."

Mexico's economic minister said the nation will begin imposing the sanctions right away, CNN Money reported.