The Origin Of The “Dolphin-Safe” Tuna Label

The United States pioneered use of the “dolphin-safe” tuna label in the 1990s. Since then, various forms of dolphin-safe tuna labelling have taken hold around the world. While the U.S. dolphin-safe labelling process has received its fair share of praise and scrutiny, the initiative aided in monumental reductions in the commercial tuna fishing industry’s impacts to dolphins.

Dolphin Deaths Caught On Camera

In 1987, biologist Sam LaBudde went undercover on a commercial tuna fishing vessel to document the ship’s offshore activities. LaBudde conducted his 5 months of secret surveillance with the support of two environment organizations, the Earth Island Institute and the Marine Mammal Fund. What LaBudde captured was horrifying. Tuna fishing vessels were encircling dolphins in pursuit of yellowfin tuna. While the tuna were caught, the dolphins often drowned in the fishing nets.

Before the release of LaBudde’s undercover footage, fishery regulators knew tuna fishers in the Eastern Pacific Ocean intentionally encircled dolphins. In this part of the ocean, dolphins provide a bullseye for the location of yellowfin tuna. For reasons still not fully understood, yellowfin tuna often hangout below dolphin pods in the Eastern Tropical Pacific. By encircling the dolphins with massive purse seine fishing nets, a fishing vessel is likely to catch a bounty of tuna – and kill a lot of dolphins.

Despite the industry’s awareness of these deaths, LaBudde was the first to capture the industry’s offshore ugliness on tape. LaBudde’s graphic footage made it onto national television in March 1988 where it quickly outraged the public. Soon after, LaBudde testified before a Senate committee considering the re-authorization of the 1972 Marine Mammal Protection Act.

Regulation of Commercial Tuna by the Marine Mammal Protection Act

Prior to LaBudde’s 1988 tuna fishing footage debut, the U.S. government attempted to regulate the commercial tuna industry through the Marine Mammal Protection Act (MMPA). The 1972 MMPA prohibited the killing, harassment, and capture of all marine mammals without a permit – what regulators refer to as “take”. According to the MMPA, “it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.” The MMPA only allowed permits be issued for activities that could injure or kill marine mammals, such as commercial fishing activities, if the impacts were shown to be “in accord with sound principles of resource protection and conservation.”

Given the fishing industry’s known impact on marine mammals at the time, the Marine Mammal Protect Act included a two-year grace period for the commercial tuna industry to reduce their unintentional killing of dolphins to an ‘insignificant level’ before violators would be penalized by U.S. regulatory agencies. Congress agreed to include this 2-year grace period after Joe Medina, a commercial tuna fisherman, testified in front of the House Committee on Merchant Marine and Fisheries in 1971.

In his testimony, Medina described a new purse seine net design he claimed would greatly reduce fishing impacts on dolphins in the Eastern Tropical Pacific. The so-called “Medina net” included a section of finer mesh meant to prevent the dolphins’ noses from getting stuck – a known way in which standard purse seines can kill dolphins.

To allow the dolphins to escape, Medina described a vessel maneuver he referred to as “backing down”. “As the vessel backs down, the portion of the net furthest away from the vessel will sink so that the porpoises can then swim out,” Medina explained to the House Committee. But Medina admitted “it takes a skilled operator to keep the tuna inside the net and the porpoises out.”

Congress approved a two-year grace period for the commercial tuna fishing industry to refine and expand use of these new fishing techniques, including the fine mesh panels designed by Joe Medina.

Commercial Tuna Permitted To Kill Marine Mammals

Shortly after this grace period ended in 1974, the National Oceanic and Atmospheric Administration (NOAA) issued a general permit to the American Tunaboat Association authorizing the unlimited capture, killing, and harassment of marine mammals affected by the purse seine method of catching yellowfin tuna so long as these impacts were incidental and certain measures were implemented to reduce the fishing method’s impacts to dolphins. The permit was re-authorized the following year, despite the American Tunaboat Association’s own estimates that their tuna fishing practices were expected to kill over 85,000 dolphins a year. Later, a report published by the National Marine Fisheries Service (NMFS) increased this estimate to between 93,000 and 214,000 animals.

The legality of these unlimited permits was challenged in court. The plaintiffs alleged these permits violated the MMPA because NOAA issued permits for the “take” of marine mammals by the tuna industry despite a lack of data on the status of these marine mammal populations. Congress contended that full compliance was not the Act’s intention.

In May 1976, a D.C. District Court sided with the plaintiffs. The judge agreed that the National Marine Fisheries Service (NMFS), a division of NOAA, issued the general permits without the data required by the Marine Mammal Protection Act. The court’s decision required NMFS to halt all permit approvals for the “taking” of marine mammals until the agency could shows that “the expected impact of such regulations on the optimum sustainable population of the species involved is not to the disadvantage of the animals.” By the end of October, the federal court’s decision halted all commercial yellowfin tuna fishing.

In January 1977, the courts re-authorized commercial fishing for yellowfin tuna, but temporarily limited the number of dolphins that could be killed to 10,000 animals for the first four months of the year while the annual quota was determined. Given that in the previous year around 8,000 dolphins were killed each month, this temporary allowance represented a comparatively conservative quota. The annual quota was later increased to 59,000 with the approval of the D.C. Court of Appeals.

The 1981 Amendments to the Marine Mammal Protection Act

In 1981, the Marine Mammal Protection Act was amended in two substantial ways. First, exemptions to the MMPA’s zero mortality goal were expanded to include activities collectively known as “small-take”. The new “small take” exemptions allow the commercial fishing industry to unintentionally kill, harass, and capture marine mammals so long as the affected mammals are not considered to be a “depleted” population, the affect on the marine mammal population is negligible, and impacts to the marine mammal population are monitored in accordance with regulatory requirements.

Second, the 1981 amendment to the MMPA clarified the Act’s zero mortality goal as it related to purse seine fishing for yellowfin tuna. According to the amendment, purse seine fishing for yellowfin tuna could still be considered in-line with the MMPA’s zero mortality goal as long as the industry continued to apply “the best marine mammal safety techniques and equipment that are economically and technologically practicable.”

The U.S. Tuna Boycott

In 1988, LaBudde testified in front of Congress about what he witnessed during his 5 months undercover with the tuna industry. In his testimony, LaBudde said he witnessed at least two dolphin encirclements a month which each killed between 50 and 500 dolphins. In response, representatives of the U.S. tuna industry testified that they had means of freeing dolphins from their nets to reduce the number of dolphins killed in the tuna fishing process.

The industry’s testimony was no match for LaBudde’s footage; the U.S. public was outraged.

By April, the public’s horror over dolphin deaths at the hands of the tuna industry led to a consumer boycott of tuna. While the Earth Island Institute had been pushing for a boycott since 1986, the boycott did not take hold until the release of LaBudde’s footage. Tuna producers quickly responded to consumer concerns and protests by promoting “dolphin-friendly” fishing practices and labeling their tuna as “dolphin safe”.

Regulation Of The “Dolphin-Safe” Label

Out of concern over fraudulent labeling, the U.S. enacted the Dolphin Protection Consumer Information Act in 1990 to regulate “dolphin-safe” labeling practices. This Act was passed as another amendment to the 1972 Marine Mammal Protect Act.

Under the Dolphin Protection Consumer Information Act, it became a violation of U.S. law to label unqualified tuna as “dolphin-safe”. To qualify for use of the dolphin-safe label, the vessels used to catch the tuna were required to have observers on board to ensure the vessels were fishing according to the methods required by the dolphin-safe label. Tuna canners were also required to collect data on all of the tuna they processed, including the species of tuna captured, the fish’s condition, the location where the tuna was caught, the vessel from which the tuna was caught, and the date of the harvesting trip. Today, violators can be charged up to $100,000 for each mislabeling offense. The Act also explicitly banned the import of tuna from international tuna fishing fleets that killed more dolphins than U.S. vessels.