On December 15, 2009, World Trade Organization (WTO) Director-General Pascal Lamy announced his appointment of three panelists to consider a complaint that Mexico filed against the United States challenging its dolphin-safe labeling requirements for tuna.

At issue is the 1990 US Dolphin Protection Consumer Information Act (the Act), which establishes labeling standards for tuna products that are exported from or offered for sale in the United States. The Act bans the use of the “dolphin-safe” label for tuna harvested with purse-seine nets because of dolphins trapped in the nets. In 1997, the legislation was amended by the International Dolphin Conservation Program Act, which allowed the importation into the United States of tuna caught using purse-seine nets, provided maximum dolphin kill levels (set above dolphin death rates) were not exceeded. However, in 2007, a US court ruled that “dolphin-safe” labeling requirements must be interpreted as meaning that the tuna was not harvested with purse-seine nets, and that no dolphins were killed or seriously injured when the tuna were caught.

Mexico contends that the Act and the 2007 US court ruling interpreting it result in the less favorable treatment of Mexican tuna exports and tuna imported from other countries in favor of US tuna producers, in violation of the national treatment and most favored nation (MFN) obligations under the General Agreement on Tariffs and Trade (GATT) 1994. Mexico further argues that it should be permitted to use the dolphin-safe labels because its fishing practices comply with the standard established by the Inter-American Tropical Tuna Commission, of which Mexico and the United States are members.

The United States argues that the dispute should be resolved under the North American Free Trade Agreement’s (NAFTA’s) settlement dispute procedures, rather than by the WTO, because it invoked Article 2005(4) of NAFTA, which permits the defending country to choose to resolve the dispute solely under NAFTA where the dispute involves environment, health, safety, or conservation concerns.