You might have missed this while you were busy taking the kids to school and preparing for the holidays, but last fall, two U.S. food labeling programs suffered serious legal setbacks that threaten to confuse consumers and thwart the intentions of the “dolphin-safe” tuna and “country-of-origin” labels.
The details are complicated, but in September and November, two dispute panels for the World Trade Organization in Switzerland sided in part with Mexico and Canada on complaints against the voluntary dolphin-safe label and the U.S. Department of Agriculture’s mandatory country-of-origin labeling (COOL). Mexico argued that U.S. dolphin-safe standards are misleading and discriminate against the controversial fishing techniques that Mexico employs to catch tuna. Canada argued that the COOL program discriminates against imported cattle and hogs.
Reactions to the WTO rulings have ranged from tranquil to concerned to downright outraged. Major U.S. tuna producers say they won’t change their dolphin-safe sourcing standards even if they have to change their labels. Pork and beef producers worry that Mexico and Canada might apply tariffs to U.S. meat imports if the U.S. government doesn’t comply with the WTO rulings on COOL, a regulation the meat industry has had mixed feelings about since its implementation in early 2009.
And some nonprofit groups are frustrated that the United States finds itself in this position at all. They’ve long predicted that America’s binding membership in the WTO could lead to this: sacrificing important U.S. environmental and public-safety laws in the name of free international trade.
“There has been widespread concern,” wrote the nonpartisan advocacy group Public Citizen after the dolphin-safe ruling in September, that the WTO could “second guess the U.S. Congress, courts or public by elevating the goal of maximizing trade flows over consumer and environmental protection.”
The Office of the U.S. Trade Representative, which handles dispute cases before the WTO, has not yet decided whether to appeal the dolphin-safe and COOL rulings, though the Jan. 20 deadline for the former case is fast approaching. The office would like to settle the dolphin-safe case via dispute procedures under the North American Free Trade Agreement, which the United States considers the proper forum (and probably more sympathetic to American arguments). But Mexico has resisted.
Regardless, Timothy Reif, the office’s general counsel, sounds confident about the future of both labels. He notes that the WTO affirmed the United States’ right to have such labels; the parties involved just have to figure out how best to implement the labels to everyone’s satisfaction.
That is where things get complex. Mexican officials want the U.S. government to broaden its dolphin-safe rules to embrace Mexico’s long-standing fishing technique of chasing dolphins that swim above tuna in the eastern tropical Pacific Ocean and capturing the tuna in large encircling nets. The Mexican government cites statistics showing that modern equipment has vastly reduced dolphin mortality from its height in the 1960s, when hundreds of thousands of the creatures died annually, and notes that its ships carry independent observers who can verify dolphin safety.
The dolphin dilemma
The California-based Earth Island Institute, which monitors the tuna industry to ensure it follows U.S. dolphin-safe practices, disputes the eco-friendliness of Mexico’s fishing methods. Even if no dolphins are killed during the actual chasing and netting, some are wounded and later die from shark predation, says Mark Palmer, associate director of the institute’s International Marine Mammal Project.
What’s more, says Mark Berman, director of the International Dolphin-Safe Tuna Monitoring Program for Earth Island, young dolphin calves often cannot keep pace with their mothers during the chase. “Once calves are separated from their moms, that’s a certain death sentence,” Berman says. Earth Island also says onboard observers have been bribed in the past to provide falsified data .
If Mexico gets its way and the U.S. government amends the dolphin-safe rules to allow chasing and netting techniques, that could lead to confusion in supermarket aisles, says Earth Island’s Palmer. Cans of tuna could be “falsely labeled as dolphin-safe when it actually kills dolphins,” he says. That the WTO could even countenance such a scenario clearly annoys him.
“They’d put trade above environmental protection even to the extreme of lying to [consumers] about what they are buying,” Palmer says.
The question, of course, is, would American companies even buy Mexican tuna if it were suddenly deemed dolphin-safe? Not likely, says Gavin Gibbons, spokesman for the National Fisheries Institute’s Tuna Council, which represents three processors (Bumble Bee, StarKist and Chicken of the Sea) that collectively sell more than 80 percent of the canned and pouched tuna on the U.S. market. First of all, Gibbons says, the companies these days buy mostly skipjack tuna, whose populations remain healthy, not the yellowfin caught by Mexican fleets in the eastern tropical Pacific.
But more than that, Gibbons says, processors are committed to sourcing from companies that use apparent dolphin-safe methods, such as the so-called “fish aggregating devices,” which attract tuna but not dolphins. (The Mexican government, it should be noted, counters that dolphins sometimes get caught up in the massive nets used in combination with such devices.)
“They would not be in the market for tuna that is not caught in the dolphin-safe manner,” says Gibbons.
Cold on COOL
If U.S. tuna processors are committed to maintaining the current standards of the dolphin-safe program, meat producers wouldn’t mind seeing changes in the COOL program, which neither the pork nor beef industries supported when it was approved as part of the 2008 Farm Bill.
As the rules are now configured, for a cut of meat to be labeled “Product of the U.S.,” the animal must have been born, raised and slaughtered in the United States, a stipulation that apparently has created problems for ranchers and processors here and abroad. For instance, cattle that originate in Mexico but are fattened and slaughtered in the United States require a separate label stamped with “Product of the U.S., Mexico.” To ensure the integrity of the system, those border-crossing critters must be processed separately from U.S. cattle; that raises costs for slaughterhouse owners, who then seek lower prices from the ranchers selling those animals.
The fix, say officials in the pork and beef industries, is to treat foreign-born animals in the same way that the auto industry treats parts produced in other countries. A Ford truck built in Michigan with aluminum wheels made in China, after all, is still considered an American vehicle. A calf born in Mexico but raised and slaughtered in the United States should receive the same U.S. designation, they say. The number of animals potentially covered here is not small; according to USDA data, the United States imported 2.3 million head of cattle in 2010 and 5.7 million head of hogs in the same year.
“It takes our feed, our ranchers and our feed lots to make them worth something,” says Colin Woodall, vice president of government affairs for the National Cattlemen’s Beef Association, a trade and marketing group that represents more than 230,000 breeders, producers and feeders. “That beef is a product of the United States, even though the animal is from Mexico.”
The problem with that approach, says Lori Wallach, director of Public Citizen’s Global Trade Watch, is that because of WTO rules, the U.S. government had to make a small but significant change to the way it determines whether a foreign entity has the proper safety procedures in place to export meat to America.
The equivalency test
Previously, imports were allowed only from foreign plants certified to have food-safety systems that were “at least equal to” those in the United States, based on site visits by U.S. government inspectors. But now, Wallach says, foreign countries can have their regulatory system deemed “equivalent” based only on submitted documents and visits to a few pre-selected sites in the country. Once a nation’s system is found “equivalent,” any facility within its borders can export meat to the United States.
And, Wallach adds, a number of countries were grandfathered as having equivalent systems when the WTO launched in 1995, even if only a select number of their plants had been previously approved as “equal to.”
In the early 2000s, Public Citizen reviewed the USDA’s Food Safety and Inspection Service reports for a number of countries granted equivalent status by the United States and determined that federal officials were “allowing imported meat onto U.S. grocery shelves that does not meet domestic food safety standards,” according to a July 2003 news release.
“The very notion of replacing an import safety standard that required meat and poultry to meet U.S. standards [with] one that allows a very squishy, unclear notion of equivalents,” Wallach says, “means that U.S. consumers have been put at enormous new risk for the benefit of facilitating trade in products that, if not processed properly, can kill your kids.”
At least with COOL, Wallach says, consumers can decide whether they want to buy meat imported from foreign countries. If Mexico, Canada or other country’s animals could gain “Product of the U.S.” labels — after feeding and slaughtering in the States — consumers would be “playing Russian roulette with every burger, steak or chop.”
Pork and beef industry officials disagree vehemently with that position. “If there were an issue, we’d be up in arms about it,” says Nick Giordano, vice president and counsel for international affairs for the National Pork Producers Council. “Our ability to continue to supply the customer . . . is dependent on us supplying a product that is second to none in safety and quality.”
To the meat industry, the COOL system is little more than package-based advertising, one that favors domestic products over foreign ones.
“It’s not any sort of food safety program; it’s just simply a marketing program,” says Woodall of the National Cattlemen’s Beef Association. “We don’t think government should be in the marketing of cattle.”