## Facts

- Mexico challenged U.S. “dolphin-safe” labeling requirements for tuna and tuna products under the Dolphin Protection Consumer Information Act and implementing regulations.
- The rules permitted use of a “dolphin-safe” label only if specified conditions were met; use of the label was optional, but compliance was required for any “dolphin-safe” claim.
- For tuna caught in the Eastern Tropical Pacific Ocean (ETP) by large purse-seine vessels, tuna generally could not be labeled “dolphin-safe” if caught by “setting on dolphins,” and additional certifications (including observer verification) were required.
- For tuna caught outside the ETP, labeling conditions were generally less demanding and relied more heavily on captain certifications without comparable prohibitions or observer requirements.
- Mexico’s fleet primarily fished in the ETP using techniques involving setting on dolphins; it argued the U.S. scheme disadvantaged Mexican tuna in the U.S. market.
- A WTO panel found the measure was a TBT “technical regulation,” found a TBT art. 2.2 violation, and rejected claims under TBT arts. 2.1 and 2.4; both parties appealed aspects of those findings.

## Issues

1. Whether the U.S. dolphin-safe labeling provisions are a “technical regulation” under TBT Annex 1.1.
2. Whether the measure accords less favorable treatment to Mexican tuna and tuna products, contrary to TBT Article 2.1.
3. Whether the measure is more trade-restrictive than necessary to fulfill legitimate objectives, contrary to TBT Article 2.2.
4. Whether the United States was required to use the AIDCP dolphin-safe standard as a basis for the measure under TBT Article 2.4.
5. Whether the panel failed to make an objective assessment under DSU Article 11.

## Decision

- The Appellate Body upheld that the U.S. labeling provisions constitute a TBT “technical regulation.”
- The Appellate Body reversed the panel on TBT Article 2.1 and found the measure inconsistent with Article 2.1 due to de facto discrimination against Mexican tuna products.
- The Appellate Body reversed the panel on TBT Article 2.2 and found no Article 2.2 violation.
- The Appellate Body upheld (with modified reasoning) the panel’s result that the measure was not inconsistent with TBT Article 2.4.
- The Appellate Body rejected Mexico’s DSU Article 11 claim and did not complete analysis of certain GATT claims.

## Legal Principles

- A labeling regime can be a TBT “technical regulation” when it applies to an identifiable product and prescribes mandatory conditions for using a regulated label claim, even if use of the label is optional.
- Under TBT Article 2.1, a measure that causes detrimental competitive impact violates the non-discrimination obligation unless the impact stems exclusively from a legitimate regulatory distinction; legitimacy requires even-handed design and application relative to the objective.
- Under TBT Article 2.2, a complainant must show a less trade-restrictive alternative that would achieve the respondent’s legitimate objectives with an equal degree of contribution, assessed in light of the risks of non-fulfillment.
- Under TBT Article 2.4, a relevant international standard need not be used as a basis where it would be ineffective or inappropriate for fulfilling the member’s legitimate objectives, considering the measure’s scope and aims.

## Conclusion

The Appellate Body treated the U.S. dolphin-safe labeling rules as a technical regulation and concluded they discriminated against Mexican tuna products under TBT Article 2.1 because the scheme imposed unequal burdens not justified by even-handed risk regulation, while rejecting challenges under TBT Articles 2.2 and 2.4.


United States—Measures Concerning the Importation, Marketing, and Sale of Tuna and Tuna Products, WTO Doc. WT/DS381/AB/R (App. Body 2012)