Mexico claims to have won a World Trade Organization ruling on “Dolphin Safe” labels where the objectives of the United States were found to be legitimate, just maybe not applicable worldwide.

Any countries harvesting tuna in the Pacific Ocean from Southern California to Peru and out almost to Hawaii could qualify for the “Dolphin Safe” label if they are careful. But all too often, tuna are captured using methods involving the chase, netting, and drowning of dolphins.

The dispute over “Dolphin Safe” labels comes at a time when tuna’s popularity — and some say safety — is on the upswing.

Mercury levels are still a food safety concern, but even children and pregnant women have been told they can eat 12 ounces of light canned tuna per week for every 100 pounds of body weight.

For 20 years, U.S. consumers have become accustomed to buying tuna with the “Dolphin Safe” label.  Three years ago, Mexico complained to the WTO, essentially claiming the “Dolphin Safe” label was an unfair trade practice.

In its recently published decision, the WTO found the U.S. government’s safe labeling provisions are more trade restrictive than necessary.  It said the U.S. labeling only partiality addresses legitimate objectives and there are less trade-restrictive alternatives.

But it also found the U.S. objective of preventing harm to dolphins is legitimate and Mexico’s methods of catching tuna do not meet those objectives. The WTO suggests “Dolphin Safe” should be applied worldwide, not just to the Pacific area where most of some 7 million dolphins have been killed in the past 50 years.

With demand from U.S. brands requiring “Dolphin Free” labeling, about 90 percent of the tuna in the Pacific area are caught with safe methods.

The WTO might be the wrong venue for the “Safe Tuna” dispute, according to the Office of the U.S. Trade Representative.  It has suggested the issue should be settled by the North American Free Trade Agreement (NAFTA) Free Trade Commission.

The trade representative claims the U.S., Mexico, and Canada agreed under NAFTA to settle their disputes among themselves, not bringing in the WTO.

On March 9, 2009 Mexico requested that a WTO panel be established to review Mexico’s claims that U.S. law limiting the use of the “dolphin safe” label on tuna and tuna products is inconsistent with U.S. obligations under the WTO Agreement.

In response, the United States invoked the NAFTA choice of forum provision (Article 2005(4) of the NAFTA) on March 24, 2009. However, Mexico continued to pursue its request for a WTO panel, and on April 20, 2009 the WTO Dispute Settlement Body established a WTO panel to review Mexico’s claims.

The United States and Mexico held consultations on the choice of forum dispute in December 2009. When consultations did not resolve the dispute, the United States requested the NAFTA Free Trade Commission, which is composed of the NAFTA countries’ trade ministers or their designees, meet to discuss the matter. 

Under NAFTA rules, a dispute settlement panel is established immediately upon delivery of the request to the Commission.