NOBULL: As trade rulings against U.S. mount, backlash builds against WTO — COOL lawsuit

The Kansas City Star

Posted on Thu, Nov. 29, 2012 10:57 AM

As trade rulings against U.S. mount, backlash builds against WTO

By Rob Hotakainen

McClatchy Newspapers

WASHINGTON — If you look closely at the can of tuna in your cupboard, there’s a good chance you’ll spot a small label that says “dolphin safe.”

In 1990, in a big win for environmentalists, Congress passed a law that created the labels, hoping to assure consumers that their tuna had been caught without using fishing methods that hurt dolphins. Now those labels might be disappearing, thanks to a ruling by the World Trade Organization, which said they harmed Mexico by restricting global trade. After losing the case on appeal, the United States must respond by July 13.

“Consumers in the U.S. have been clear: They want dolphin-safe tuna, and if we’re not able to label tuna in the way we want to label it, I think U.S. consumers are going to be pretty angry,” said Democratic Rep. Rick Larsen of Washington state, who likened the situation to having replacement referees decide the outcome of games in the National Football League.

In the most recent development, Larsen and 21 other members of Congress sent a letter last month to U.S. Trade Representative Ron Kirk, complaining that the WTO is threatening to turn back the clock to the days when tens of thousands of dolphins were killed each year "in a tuna fishing free-for-all."

Critics say the WTO is running roughshod over U.S. laws that govern everything from the environment to food safety and public health.

In 2008, for example, Congress approved the Country of Origin Labeling Act. It requires grocers to tell consumers where their meat, fish, chicken and produce came from. But the WTO said the labels unfairly hurt imports from Canada and Mexico.

In 2009, Congress banned flavored cigarettes with its Family Smoking Prevention and Tobacco Control Act. The WTO ruled against the United States again after Indonesia complained that the law discriminated against its cigarettes.

Both those cases are ongoing.

“Right now, the United States has become a punching bag for smaller nations. . . . They’re using the WTO for all kinds of things for what it was not intended to do,” said Joel Joseph, the general counsel of the Los Angeles-based Made in the USA Foundation, a group that promotes products manufactured in the U.S. and that advocates for labeling laws. In September, the group joined with the Ranchers-Cattlemen Action Legal Fund, which represents 5,400 ranchers and cattlemen in 45 states, and the Boulder, Colo., food distributor Mile High Organics to file a lawsuit in federal court in Colorado to defend the country-of-origin labeling law.

Lori Wallach, the director of Public Citizen’s Global Trade Watch division, a consumer advocacy organization, predicted that the tuna case will go a long way in helping the public understand the expansive reach of the WTO.

“Every kid who gets sent to school with a tuna fish sandwich, having seen the smiling dolphin on the back of the can, is about to have Flipper-murder on their hands if they have lunch again,” she said. “This is one of those few trade cases where everyone can pick up the can, see the label and realize, ‘What do you mean the WTO says we can’t know what’s in our tuna fish?’ ”

The WTO, in Geneva, defends its dispute-resolution process, saying the number of cases filed so far this year has tripled from 2011 mainly because member nations see the global-trading rules as predictable and they respect them.

“The fact that the U.S. is the most active participant in dispute settlement indicates . . . the degree of confidence that the U.S. government and U.S. companies have in our ability to resolves these disputes effectively,” Pascal Lamy, the director-general of the World Trade Organization, said in a speech last month in Washington.

The decades-old tuna dispute centers on harvesting methods in an area of the Pacific Ocean that covers roughly 7 million square miles from southern California to South America. Schools of tuna congregate there under schools of dolphins.

Over the years, millions of dolphins died as fishermen chased them with large nets to capture the tuna swimming underneath them. Because of the public outcry, Congress passed the Marine Mammal Protection Act in 1972, prohibiting U.S. fishermen from using fishing methods that killed dolphins. And 18 years later, Congress passed the Dolphin Protection Consumer Information Act, which resulted in the dolphin-safe labels.

After Mexico complained that the law discriminated against its fishing industry, the WTO’s dispute-settlement body ruled that the labels were unnecessarily restrictive on trade. That infuriated critics, who said Mexico should change its tuna-harvesting practices instead of trying to change the U.S. law.

While the issue “may not be one that gets a lot of attention,” Larsen said, it’s of concern to commercial fishermen and the recreational tuna-fishing industry in his home state. Fishermen in Washington state have harvested albacore tuna commercially for more than 100 years, catching up to 9,300 tons each year, according to the Washington Department of Fish and Wildlife.

The United States has told the WTO it will respond to the ruling by the mid-July deadline, but it’s uncertain what will happen.

Sarah Stewart, senior attorney for international law and trade with the Humane Society of the United States, said she feared that the WTO ruling would weaken the dolphin-safe labels and hurt more dolphins in the long run. But she said it didn’t automatically force the United States to do away with the dolphin-safe labels and that the U.S. need only figure out a way to deal with the ruling of discrimination against Mexico.

“The U.S. has the choice of whether or not to comply, but it usually does, because it doesn’t want to be seen as acting in bad faith,” she said. “And once we start going down the road of ‘We’re not going to comply,’ then what’s the point of having the WTO?”

Carol Guthrie, a spokeswoman for the U.S. trade representative, said the office was still working to address the WTO’s ruling and was discussing options with members of Congress and others.

Joseph said he didn’t expect his group’s lawsuit against the WTO, Kirk and Agriculture Secretary Tom Vilsack to be heard until next year. It asks the court to declare that the WTO has no authority to override U.S. law. He said the country-of-origin labeling law was aimed at letting consumers know where their food was produced so they could defend themselves in cases of disease outbreaks.

Part of the problem, Joseph said, is that members of Congress don’t know all the technicalities when they sign off on trade agreements, mainly because they don’t pay close attention. He recalled how consumer activist Ralph Nader in 1994 offered $10,000 to any member of Congress who’d read the 500-plus-page treaty allowing the U.S. to join the WTO.

“Only one member of Congress took him up on it,” Joseph said – then-Colorado Republican Sen. Hank Brown. “They pass these things and they don’t realize all the ramifications.”

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