UNITED STATES - MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
Document: Request for Consultations by Mexico
Date: 28 October 2008
Document codes: WT/DS381/1; G/L/858; G/TBT/D/32
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 Consultations by Mexico

 The following communication, dated 24 October 2008, from the delegation of Mexico to the
delegation of the United States and to the Chairman of the Dispute Settlement Body, is circulated in
accordance with Article 4.4 of the DSU.

 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), the Government
of Mexico hereby requests consultations with th e Government of the United States of America in
relation to certain measures taken by the latter conc erning the importation, marketing and sale of tuna
and tuna products. The measures include:

• 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).

 The US measures have the effect of prohibi ting the labelling of Mexican tuna and tuna
products as "dolphin-safe", even when the tuna has been harvested by means that comply with the
multilaterally agreed "dolphin-safe" standard est ablished 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".

 In this respect, it appears that:

 1. Mexican products are accorded treatment less favourable than like products of
national origin and like products originating in any other country;

 2. Mexican products are not accorded imme diately and unconditionally any advantage,
favour, privilege or immunity granted to like products of any other Member;

 3. the measures have the effect of creating unnecessary obstacles to trade;

 4. the measures do not use as their basis an existing international standard; and

 5. the procedures for assessing conformity with the "dolphin-safe" technical regulation
(i) do not grant access for suppliers of Mexican products under conditions no less
favourable than those accorded to like products of national origin or originating in any
other country, in a comparable situati on, and (ii) create unnecessary obstacles to
international trade.

 These measures appear to be inconsistent with the obligations of the United States under the
GATT 1994 and the TBT Agreement. The provisions of these Agreements with which the measures
appear to be inconsistent include in particular, but not necessarily exclusively, the following:

 (i) Articles 2, 5, 6 and 8 of the TBT Agreement; and

 (ii) Articles I and III of the GATT 1994.

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

 Mexico reserves the right to raise additional factual or legal claims or matters regarding the
measures at issue during the course of consultations.

 Mexico looks forward to receiving the response of the United States to this request in order to
set a mutually convenient date for consultations.