US Seafood Traceability Rule survives court challenge

The US fishing industry has lost its legal challenge to prevent new federal legislation being introduced that would add red tape and require fishers to trace their catches from sea to supper.

US District Judge Amit Mehta ruled against the fishing industry, arguing that the supply chain for seafood is "rife with vulnerabilities" where more expensive seafood can be easily substituted for less expensive or inferior species.

"It is well documented that, at each stage, opportunities seek to game the system, largely by circumventing laws or norms that regulate the manner in which the world seafood market operate," Judge Mehta said. "Such activities – known as 'illegal, unreported, and unregulated' (IUU) fishing and 'seafood fraud' – have had profound global and domestic and non-economic consequences."

The Seafood Traceability Rule, introduced at the end of the Barack Obama administration, aims to reduce the amount of illegally caught and mislabelled seafood entering the US. A 2014 study estimated that between 20 per cent and 32 per cent of wild-caught seafood entering the US came from illegal, unreported and unregulated fishing.

Under the legislation, seafood importers of species like tuna, grouper, swordfish, red snapper and blue crab, must record the species, origin and how it was caught or farmed and track it from the fishing vessel or farm all the way to the US border.

The legislation, due to come into force on 1 January 2018, came about following evidence published by international advocacy group Oceana that showed about one-third of seafood sold in restaurants and in stores was different – generally a less expensive or inferior species – to the species advertised.

Global IUU fishing is estimated to cost up to $23.5bn with legitimate fishermen the most hit by the illicit activities, while seafood fraud, namely mislabelling, is found to be prevalent in one in five seafood samples worldwide.

In the US case, the fraudulent activity occurs as much of the seafood imported to the US – sometimes initially caught locally off the coast of the US – passes through foreign-based processing and packaging plants – such as in China or South Korea – as part of the complex supply chain. This, alongside the difficulty of tracking the supply chain, provides the opportunity for fraud to take place.

However, the National Fisheries Institute (NFI) and eight individual seafood companies sought to quash the traceability legislation with a lawsuit that was filed in January.

They claimed that the legislation was signed by "a low-level bureaucrat" without the authority to do so, arguing that the US Food and Drug Administration had exclusive jurisdiction over the fishing industry, while the cost of compliance and additional burden of record keeping would have an adverse impact on the industry.

The estimated cost to the industry of enacting the legislation in the first year ranges from $60,000 to $7.85m and a little over $6m annually after that, with an "upper-bound" cost estimate of $20.3min the first year and $18.5m for each year after.

These arguments were dismissed by Judge Mehta. He said the legislation fell under the Department of Commerce's jurisdiction and had the Secretary of Commerce Wilbur Ross ratify the rule in June to resolve the claim.

Meanwhile the cost of compliance "remained only a fraction, less than one-half of one percent of the $9 billion value of US seafood imports". He also believed the record-keeping burden was not overly onerous.

"In the end, the rule weathers the storm of plaintiffs' various challenges," he said in his ruling.

The NFI was "disappointed" by the court decision. John Connelly, NFI president, said in a statement that the Seafood Traceability Rule, also known as the Seafood Import Monitoring Programme (SIMP) "remains an expensive burden for the American companies that will bear the costs, for instance $53m in record-keeping expenses alone. These additional regulations will not decrease pirate fishing. The SIMP will though, increase food prices and reduce seafood choices for the average American family. NFI will thoroughly review the court's decision and as always our members will comply with the law".

The ruling was welcomed by Oceana and the Center for Biological Diversity. "This ruling is a huge win for US fishermen and consumers who are cheated when illegally caught or mislabelled seafood products make their way into our markets," Beth Lowell, senior director for illegal fishing and seafood fraud at Oceana, said in a statement. "It's time for imported seafood to be held to the same standards as domestically caught fish. It's time to level the playing field for US fishers and reduce the risks facing US consumers. All seafood sold in the US should be safe, legally caught and honestly labelled."

Miyoko Sakashita, oceans programme director at the Center for Biological Diversity, added: "This is a major victory against the illegal fishing that's devastating many fish populations and killing imperilled wildlife like turtles and porpoises around the world. Massive fishing operations working totally outside the law are rampant on the high seas and in foreign waters. This rule helps ensure that American consumers aren't supporting such deplorable fishing practices."

According to a 2016 global review of seafood fraud by Oceana, mislabelling rates in the European Union dropped from 23 per cent prior to 2012 to 8 per cent in 2015 following the implementation of legislation to combat unregulated fishing.