The U.S. Senate
c/o The Office of Senator Daniel Inouye
My name is Don White. I am President of the U.S. conservation and research
organization Earthtrust, and also President of Flipper Foundation. I have
worked actively on the issue of dolphins and fisheries for the last 23
years, and this has been reflected in legislation passed by Congress in the
past. I co-founded Greenpeace USA, and created and directed the Greenpeace
International dolphin campaign. You have seen Earthtrust's footage and
briefings on destructive deep-sea driftnets, which launched the move for a
global ban and US law, and I have worked with many of you over the decades
on the so-called tuna/dolphin issue. You have recently seen our DNA expose
of the illegal whalemeat trade, in conjunction with Harvard University.
Earthtrust's specialty is creating real-world solutions for conservation
when treaties alone fail.. My goal has been to develop stable solutions to
otherwise intractable fisheries conflicts.
With the passing of S.39, we are about to transition from a simple,
completely successful law demanded and supported by the American people, to
a complex system without credible enforcement. We are on the verge of
passing this into law because the US public has been temporarily confused
by lengthy position papers, foreign-funded P.R. firms, and several
"big-green" endorsements, about what the new law means. In simple terms,
it means that the US market will no longer be safe for dolphins by any
reasonable standard, and that the newly-legislated U.S. "dolphin safe" mark
will be meaningless in determining what the public has repeatedly demanded
to know: whether tuna is caught by chasing and encircling dolphins.
We oppose this bill in the strongest terms, and urge you to do the same.
However, I realize there is a strong chance it will pass.
My comments on the bill before you, therefore, are not about dolphins.
They are about preventing public confusion, preserving the right to
educational free speech, resolving boycotts, and avoiding the precedent of
having the government legislate the "highest quality" product the U.S.
consumer is allowed to buy.
In a "free trade" world, what will be the mechanisms to protect and inform
the U.S. consumer? Any U.S.-legislated product-quality standard which is
higher than the global norm will be challenged through the WTO by nations
which produce a product of lower standard, with the result that the higher
U.S. standard will be held to constitute a non-tariff trade barrier for
which the U.S. is liable. Indeed, that is the driving force behind this
bill.
I submit that one extremely valuable asset to the U.S. consumer is the
existence of private quality-certification marks which are voluntary,
market-driven, and outside the pale of GATT and WTO rulings. These marks,
and their associated programs, function through protected "educational"
speech to provide quality information which the consumer wants, and which
the participating firm wishes to provide. Such marks may be international
in scope - like the world market - and via contract law establish stable
quality standards as detailed as the U.S. Consumer desires.
This important for you to consider now, because S.39 as written makes such
certification marks illegal to put on a tuna can, even those of long
standing like our "Flipper Seal of Approval". The precedent this would set
for abolition of voluntary certification marks would be devastating. In
effect, the U.S. would not only be lowering its minimum quality standards,
but also setting them as the highest standards which may be mentioned on a
product! This is a delight for foreign producers of low-quality product,
but a disaster for the U.S. consumer; as well as for higher-quality U.S.
producers who will henceforth have to compete solely on price despite their
higher cost of acquisition.
And it is not merely a case of abolishing voluntary quality certification
programs. Under S.39 as written, a tuna firm could not even say "we don't
chase and encircle dolphins" on its labels, despite the fact that this has
been established as the single most important factor in the U.S. Consumers'
purchasing decision!
What will be the immediate result of passage of this bill? As an industry
observer and longtime worker on this issue, I can make some common-sense
predictions which you may also recognize as obvious:
Although mine is a scientific and educational organization which does not
boycott, and though boycotts of tuna have not been called at this time, it
is obvious to anyone who understands the U.S. marketplace that there will
be massive boycotts of tuna following passage of S.39. I state this not
from inside information but because it is self-evident. A majority of
pro-dolphin organizations in this nation oppose the anti-dolphin provisions
of the bill, and these will become a rallying point and battle cry point
following passage. The long, turgid policy papers will be forgotten, as a
simple question is repeatedly asked of the American public: Do you want to
buy tuna that was caught by intentionally chasing and setting nets around
dolphins? The answer will be, as it has always been, a resounding NO from
schools and citizens across the nation.
However, there will be a problem. Even though most tuna firms - indeed,
all US tuna firms - currently do NOT chase and encircle dolphins, it will
now be illegal for them to say this on their can labels! The consumer
will not know what not to boycott. Thus, instead of a boycott of only the
dolphin-deadly "niche market", we will probably see a "category boycott" of
all tuna products, which will decimate the industry.
This situation is inevitable given current wording of S.39. In effect,
cheaper foreign imports will be able to force higher-quality US firms to
compete on price alone. In terms of options, responsible tuna firms will
have nowhere to go; beset by reduced demand from boycotts and undercut by
foreign competition. Some major firms could fail entirely; others will
adopt the same low standards as foreign competitors as tuna becomes
unpopular and as other sources of low-cost protein take up the slack.
The proper use of voluntary certification marks can ameliorate the damage
to the industry and the credibility of Congress, and can in fact provide at
least one means to accomplish conservation in a "free-trade" world. If the
position of the U.S. is to be consistent with the constitution and the
desires and interests of the US consumer, independent marks should not only
not be made illegal by S.39, they should be encouraged.
As you may know, my organization owns the accreditation mark Flipper, which
has been used internationally for many years as the "Flipper Seal of
Approval" to identify tuna products which exceed minimum federal
dolphin-safe standards and to provide a mechanism for enabling
international real-world monitoring of tuna supplies. This program has had
participation of up to 60% of the US market prior to the DPCIA, which is
now to be overturned. This legislation, S.39, would make this popular,
useful, and entirely voluntary certification mark illegal to use on a tuna
can in the USA, just when firms need it most.
As may therefore be apparent, my organization, participating tuna firms,
and consumer-interest groups will also have grounds for a first-amendment
challenge to this legislation if passed as written; since it will cause
damages by unconstitutional prior restraint of protected educational
speech. The implication of these precedents go far beyond dolphins and
tuna.
But I direct my comments not just to the Flipper program, but to the
concept of private, verifiable quality standards in general. Simply put,
responsible tuna-selling firms will soon find they need to be able to
distance themselves from the fraudulent "dolphin-safe" definition contained
in S.39. Please keep it legal for tuna firms to say on their labels that
they do not chase and set nets around dolphins. In other words, keep it
legal for the best firms to tell the truth. Do not set a precedent against
free speech due to pressure from foreign interests who simply don't like
our laws. Congress is the last line of defense in protecting the
sovereignty of the U.S. market from over-zealous treaty interpretations.
In addition, keep voluntary certification programs legal. In other words, don't make Flipper illegal.
The best way of doing this is to oppose S.39, which is fundamentally
flawed; or drastically amend it to allow the free market, and free speech,
to function.
My thanks for your consideration of these remarks.
Donald White
President, Earthtrust
Founder, Greenpeace USA
