The "Dolphin Safe" label is still safe for consumers and animals—at least for now.
On April 10, U.S. District Court Judge Thelton E. Henderson issued a preliminary injunction that maintains the old "Dolphin Safe" standards—which the Bush Administration tried to water down late last year—until the federal court can hear a lawsuit on the tuna labeling issue brought by a number of conservation groups including The HSUS. The 1990 standards prohibit any tuna caught by fleets that deliberately chase and encircle dolphins, which tend to swim above yellowfin tuna in the Eastern Tropical Pacific (ETP) Ocean, from using the "Dolphin Safe" label.
The ruling is a setback for the Bush Administration, which announced on December 31, 2002 that it was weakening the label by allowing tuna caught with the chasing-and-encircling techniques to carry the coveted label (as long as an on-board observer did not report seeing any dolphin mortality or serious injuries). The administration was able to justify the new rule because, on the same day last year, the Commerce Department's National Marine Fisheries Service announced, in its "final finding" to Congress, that the intentional chasing and encircling of dolphins with purse seine nets "is not having a significant adverse impact on depleted dolphin stocks in the [ETP]."
In his ruling, Judge Henderson questioned, like the plaintiffs in the lawsuit, whether Commerce Secretary Donald Evans based his final finding solely on the "best available science," or rather did indeed consider other factors such as international trade.
"While the Secretary has wisely refrained in this case from expressly invoking trade policy concerns as grounds for affirming his final finding," Henderson wrote in his ruling, "there is little doubt that he has continued to face pressure to consider factors beyond the scientific evidence. Indeed, on December 3, 2002, Secretary of State Colin L. Powell personally wrote the Secretary that '[t]he Department of State has an ongoing interest in this matter because this finding will profoundly affect our role as the lead USG representative to the [International Dolphin Conservation Program]' and encouraged the Secretary to make a finding of no significant adverse impact."
The lawsuit, which was filed in January 2003 by The HSUS, Earth Island Institute and other groups, is scheduled to be heard later this year.
In Judge Henderson's decision, he specifically mentioned the government's own 100-page report—prepared by NOAA Fisheries in August 2002 and based on research conducted from 1997 to 2002—which the government acknowledged as the "best available scientific evidence." The report cast strong suspicions on chasing and encircling as the reason why dolphin populations in the ETP have not recovered.
"Despite considerable scientific effort by the fishery scientists, there is little evidence of recovery, and concerns remain that the practice of chasing and encircling dolphins somehow is adversely affecting the ability of these depleted stocks to recover," the report states.
Despite these warnings, the Commerce Department announced that the practice of chasing and encircling dolphins does not have a significant adverse impact on dolphin populations. Consequently, the Bush Administration decided to weaken the "Dolphin Safe" label by allowing tuna caught with the encirclement method to be given the coveted label (again, if on-board observers determine that no dolphins are killed or seriously injured). The Mexican tuna industry has been fighting to secure the "Dolphin Safe" label since the mid-1990s—without changing its harmful fishing practices.
Immediately, The HSUS joined Earth Island Institute and other groups in a federal lawsuit challenging the administration's decision. The plaintiffs charged that the administration ignored scientific evidence and based its decision solely on politics. The plaintiffs' charges echo similar ones issued in a 1999 lawsuit, in which the conservation groups successfully overturned the Commerce Department's efforts to weaken the "Dolphin Safe" label.
"It was the right decision to grant our preliminary injunction," said Kitty Block, special counsel to The HSUS's United Nations and Treaties department. "It protects dolphins and protects consumers from labeling fraud."
The lawsuit is not the only challenge that the Bush Administration faces in trying to weaken the label. Senator Barbara Boxer (D-California) introduced the "Truth in Tuna Labeling Act of 2003," which will reinstate the old standards for "Dolphin Safe." As a member of the U.S. House of Representatives, Boxer wrote the rules for the original 1990 "Dolphin Safe" label.
In an interview with the Associated Press, Boxer accused the Bush Administration of "putting free trade ahead of protecting dolphin(s)," and she declared the new label definition "completely false advertising."
In the meantime, major U.S. tuna producers such as StarKist, Bumble Bee, and Chicken of the Sea have agreed to abide by the stricter "Dolphin Safe" standards indefinitely. However, if the lawsuit is unsuccessful and the label change goes into effect, tuna caught by deliberately chasing and encircling dolphins will enter the U.S. markets misleadingly labeled as "Dolphin Safe." If this occurs, The HSUS will launch a campaign to help consumers determine which brands are truly dolphin safe.
