II - FACTUAL ASPECTS

Summary

The Measures at Issue

2.1 In its request for the establishment of a panel, Mexico identified the following measures adopted by the United States concerning the importation, marketing and sale of tuna and tuna products:

(a) United States Code, Title 16, Section 1385 (“Dolphin Protection Consumer Information Act”);

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

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

2.2 This Section describes the main elements of these measures as the Panel understands them, in light of the explanations provided by the parties in their submissions and in response to questions by the Panel. It also briefly describes the “dolphin-safe” scheme established under the Agreement on the International Dolphin Conservation Program (AIDCP).

Scope of Application of the DPCIA Provisions

2.3 The Dolphin Protection Consumer Information Act (DPCIA) is codified in Title 16, Section 1385 of the United States Code (USC). Regulations promulgated in accordance with the DPCIA are codified in Title 50, Section 216 of the Federal Regulations. The core of the US “dolphin-safe” labelling scheme is contained in subsection 1385(d)(1)-(3) of the DPCIA. Paragraph (d) of Section 1385 of the DPCIA provisions regulates the use of the term “dolphin-safe” when it appears on tuna products.