UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
Document: Request for the Establishment of a Panel by Mexico
Date: 10 March 2009
Document codes: WT/DS381/4
Complainant: Mexico
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Ecuador, EU, Guatemala, India, Japan, South Korea, New Zealand, Norway
Dispute stage: Implementation & Compliance
Agreements cited: Art. I:1, III:4  GATT 1994Art. 2.1, 2.2, 2.3, 2.4  Technical Barriers to Trade (TBT)

UNITED STATES – MEASURES CONCERNING THE IMPORTATION,
MARKETING AND SALE OF TUNA AND TUNA PRODUCTS

Request for the Establishment of a Panel by Mexico

 The following communication, dated 9 March 2009, from the delegation of Mexico to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 24 October 2008, Mexico requested consu ltations with the United States pursuant to
Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),
Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and Article 14 of the
Agreement on Technical Barriers to Trade (TBT Agreement), in relation to certain measures taken by
the latter concerning the importation, marketing and sale of tuna and tuna products. Mexico held
consultations with the United States on 17 December 2008. Unfortunately, these consultations failed
to resolve the dispute.

 In view of the foregoing, Mexico respectfu lly requests the establishment of a panel in
conformity with Articles 4 and 6 of the DSU, Article XXIII of the GATT 1994 and Article 14 of the
TBT Agreement.

 The measures adopted by the United States con cerning the importation, marketing and sale of
tuna and tuna products include the following:

• United States Code , Title 16, Section 1385 ("Do lphin Protection Consumer
Information Act");

• Code of Federal Regulations , Title 50, Section 216.91 ("Dolphin-safe labeling
standards") and Section 216.92 ("Dolphin-saf e requirements for tuna harvested in the
ETP [Eastern Tropical Pacific Ocean] by large purse seine vessels");

• The ruling in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).

 Mexico holds that the US measures have the effect of prohibiting th e labelling of Mexican
tuna and tuna products as "dolphin-safe", even when the tuna has been ha rvested by means that
comply with the multilaterally agreed "dolphin-safe" standard established by the Inter-American
Tropical Tuna Commission, while tuna products from most other countries, including the
United States, are allowed to be labelled as "dolphin-safe".

 Mexico considers the aforementioned measures to be inconsistent with the obligations of the
United States under Article 2 of the TBT Agreement and Articles I and III of the GATT 1994, for the
following reasons:

 1. Mexican products are not accorded imme diately and unconditionally any advantage,
favour, privilege or immunity granted to like products of any other Member, contrary
to Article I.1 of the GATT 1994;

 2. Mexican products are accorded treatment less favourable than like products of
US origin, contrary to Article III.4 of the GATT 1994;

 3. Mexican products are accorded treatment less favourable than like products of
US origin and like products originating in any other country, contrary to Article 2.1
of the TBT Agreement;

 4. The measures have the effect of creati ng unnecessary obstacles to trade, contrary to
Article 2.2 of the TBT Agreement;

 5. The measures are maintained although their objectives can be addressed in a less
trade-restrictive manner, contrary to Article 2.3 of the TBT Agreement; and

 6. The measures do not use as their basis an existing international standard, contrary to
Article 2.4 of the TBT Agreement.

 These violations nullify or impair the benef its accruing to Mexico under these Agreements
and cannot be justified under any of the covered Agreements.

 For the aforementioned reasons, Mexico respectfully requests the establishment of a panel
with standard terms of reference as set out in Article 7 of the DSU.

 I therefore request that this matter be included in the agenda for the next regular meeting of
the Dispute Settlement Body on 20 March 2009.