The WTO Appellate Body Knocks Down U.S. “Dolphin-Safe” Tuna Labels But Leaves a Crack for PPMs
On June 13, 2012, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted the Panel and Appellate Body Reports in an important environmental labeling case, US-Tuna II, which brings environmental issues to the forefront of trade. This decision, alongside its partner cases, US-Clove Cigarettes and US-COOL, clarifies key provisions of the WTO's Agreement on Technical Barriers to Trade (TBT Agreement) while exploring the relationship between trade liberalization and government regulation of the environment. Can free trade accommodate regulations that protect the environment by targeting non-product-related process and production methods (PPMs)? Although US-Tuna II does not answer this question, it represents an important step for WTO jurisprudence in this regard.
In this case, Mexico challenged the United States' labeling scheme under the U.S. Dolphin Protection Consumer Information Act (DPCIA) and associated regulations and rulings. The scheme is designed to protect dolphins and to provide information to consumers about how tuna was caught. The "dolphin-safe" label under this scheme can be applied to tuna only if it is caught using methods other than "setting on" dolphins or driftnet fishing on the high seas. For tuna caught in the Eastern Tropical Pacific region (ETP), access to the label requires a certification that the tuna was not caught by setting on dolphins and that "no dolphins were killed or seriously injured" in the process. For tuna outside the ETP, the latter certification is not required.
This Insight examines some of the issues considered on appeal under TBT Annex 1.1 and Articles 2.1, 2.2, and 2.4. Significantly, the Panel in US-Tuna II concluded that the U.S. measure is a "technical regulation" that does not treat Mexican tuna products less favorably than like U.S. products contrary to TBT Article 2.1, but that it is more trade restrictive than necessary and thus contrary to TBT Article 2.2. The Appellate Body, while agreeing that the measure is a technical regulation, reversed the Panel's conclusions on Articles 2.1 and 2.2.
Is the U.S. Scheme a Technical Regulation? - TBT Annex 1.1
TBT Annex 1.1 defines a technical regulation as a "[d]ocument which lays down product characteristics or their related processes and production methods . . . with which compliance is mandatory . . . ." As a threshold issue, the United States appealed the Panel's conclusions regarding the mandatory nature of the U.S. requirements. The Appellate Body agreed with the Panel that the U.S. measure is mandatory and therefore a "technical regulation" because it forms part of U.S. law and regulations and imposes legally enforceable conditions that must be met to have access to the "dolphin-safe" label. This conclusion blurs the distinction in the TBT Agreement between a voluntary "standard" and a mandatory "technical regulation." It suggests that any legislative or regulatory act that affects market access and contains legally mandated and enforceable conditions may constitute a technical regulation.
Treatment No Less Favorable - TBT Article 2.1
TBT Article 2.1 requires WTO Members to ensure that, "in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country."
The Appellate Body found that the Panel used "an incorrect approach" in upholding the U.S. measure under Article 2.1. A determination of less favorable treatment focuses on government action; specifically, the Appellate Body considered whether 1) the U.S. measure modifies the competitive conditions in the U.S. market to the detriment of Mexican tuna products as compared to U.S. or other members' tuna products; and 2) the detrimental impact "reflects discrimination against the Mexican tuna products." The Appellate Body found that the Panel incorrectly assumed that regulatory distinctions based on fishing methods rather than national origin are consistent with Article 2.1. According to the Appellate Body, such distinctions may nevertheless modify the conditions of competition. This reading of Article 2.1 as covering de facto discrimination through regulations that are origin neutral on their face is in line with preceding jurisprudence on Article III of the General Agreement on Tariffs and Trade (GATT) 1994 and the recent Appellate Body decision in US-Clove Cigarettes.
The Appellate Body concluded that the United States had not demonstrated that the measure is "even-handed" and that "the detrimental impact of the US measure on Mexican tuna products stems exclusively from a legitimate regulatory distinction," namely, the distinction between tuna caught by setting on dolphins in the ETP and tuna caught using different fishing methods outside the ETP. The Appellate Body therefore reversed the Panel's finding for the United States under Article 2.1 and found instead that the labeling scheme provides less favorable treatment to Mexican tuna products contrary to Article 2.1.
More Trade Restrictive than Necessary? - TBT Article 2.2
The Appellate Body reversed the Panel's ruling that the U.S. measure is more "trade-restrictive than necessary to meet a legitimate objective." In line with US-Gambling, the Appellate Body carefully analyzed the weighing and balancing required in assessing the necessity of the measure. A Panel must balance factors including: the trade-restrictiveness of the measure; its contribution to a legitimate objective; and the risks of not fulfilling that objective. The burden is on the complainant to show that a regulation creates an unnecessary obstacle to trade. The respondent must rebut the complainantâs prima facie case with evidence to the contrary and, for example, by showing that the alternative proposed by the complainant is not reasonably available, not less trade restrictive, or does not make an equivalent contribution to the legitimate objective.
Following an earlier GATT dispute, the United States and Mexico entered into the 1999 Agreement on the International Dolphin Conservation Program (AIDCP), which provides for a less stringent labeling scheme focusing on dolphin mortality and injury. The Panel concluded that the U.S. scheme would be less trade-restrictive if used in conjunction with the AIDCP scheme. However, the Appellate Body disagreed that this combination represented a relevant alternative demonstrating inconsistency with TBT Article 2.2. In comparing the effect of the U.S. scheme with that of the proposed alternative of the U.S. scheme in conjunction with the AIDCP scheme, the Panel considered tuna caught inside and outside the ETP rather than correctly focusing on the ETP. Furthermore, the Appellate Body disagreed with the Panel that applying the U.S. scheme in conjunction with the AIDCP scheme would achieve the U.S. objectives "to the same extent" as the U.S. scheme alone. The Appellate Body therefore reversed the Panel's finding that the U.S. measure is more trade-restrictive than necessary contrary to TBT Article 2.2. The Appellate Body dismissed Mexico's conditional claims.
Relevant International Standard - TBT Article 2.4
TBT Article 2.4 states that Members shall use relevant international standards as "a basis for their technical regulations except when such international standards . . . would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued . . . ." The United States successfully appealed the Panel's finding that the AIDCP scheme is "a relevant international standard." This aspect of the appeal focused on the Panel's conclusion that that the AIDCP is a "recognized international body" of the kind that may adopt international standards.
The Panel had deferred to the definition of "international standard" in the ISO/IEC Guide. The Appellate Body concluded that this focus is consistent with the introductory clause of TBT Annex 1, but that the definitions in the TBT Agreement take precedence to the extent of inconsistency. Therefore, since TBT Annex 1 states that a standard is approved by a "body" rather than an "organization," the legal question under the TBT Agreement is whether the AIDCP scheme is adopted by an "international standardizing body." Furthermore, such a body must be "recognized" with respect to its "activities in standardization," and its membership must be "open to the relevant bodies of at least all Members." The Appellate Body looked to a TBT Committee Decision to interpret the term "open" and "recognized activities in standardization," on the basis that the Committee Decision constitutes a "subsequent agreement" within the meaning of Article 31(3)(a) of the Vienna Convention on the Law of Treaties. This move sets a precedent for WTO Committee Decisions to have legal force in future WTO adjudicatory proceedings.
In accordance with the TBT Committee Decision, the Appellate Body found that the AIDCP is not open because it has few members, whose membership was conditioned on an invitation to participate. Accordingly, the Panel erred in characterizing the AIDCP as an international standardizing organization and in concluding that the AIDCP scheme is a "relevant international standard" under TBT Article 2.4. The Appellate Body did not disturb the Panel's ruling that the U.S. measure is not inconsistent with TBT Article 2.4. Finally, the Appellate Body found that the Panel misused judicial economy in not addressing Mexico's GATT claims and concluded that GATT applied to this case.
US-Tuna II is a landmark case for the trade and environment relationship and, more specifically, for the future adjudication of technical regulations under the TBT Agreement. In finding the U.S. labeling scheme inconsistent with TBT Article 2.1, the Appellate Body effectively characterized a measure based on non-product-related PPMs as a discriminatory technical regulation. However, the case leaves open the applicability of the TBT Agreement to PPM-based regulations in general--a controversial issue especially for developing nations because of the effect such regulations may have on market access of their products.Furthermore, by deferring to the TBT Committee Decision, this case blurred the future role of WTO Committees in setting new rules and interpretative guidelines, especially relevant in light of the current impasse in the Doha Round negotiations.
About the Author:
Elizabeth Trujillo, an ASIL member, is Co-Vice Chair of the ASIL International Economic Law Interest Group and a member of the 2012 ASIL Program Committee. She is a Professor of Law at Suffolk University Law School in Boston. In the academic year of 2011-2012, she was a Visiting Scholar at the Institute of Global Law and Policy at Harvard Law School.