The Appellate Body's adopted report ultimately required the United States to amend the DPCIA to comply with the TBT.
Through a mechanism similar to that of the DPCIA, the European Union approves producers' applications to use standardized labels on their packaging if the product meets production criteria.
It noted that "voluntary schemes" such as the DPCIA, which give producers complete discretion to join a scheme and consumers to choose a labeled product, do not appear to violate the TBT or GATT.
In US-Tuna II, the Panel employed the reasoning suggested in Shrimp-Turtle; it held that because the DPCIA was not enacted to serve a discriminatory purpose, it did not violate TBT Article 2.
The Appellate Body may have applied a stringent analysis because the DPCIA was analyzed under the TBT, a treaty that was designed to combat nonprotectionist, but costly, technical barriers to trade.
215) This will require a departure from the WTO adjudicative branch's approach in determining the validity of the DPCIA under the TBT and a return to the reasoning it laid out in its decisions in the late 1990s.
US-Tuna II demonstrates the potential for disagreement in interpreting close cases; while Congress found that changing the DPCIA was unnecessary because the commissioner could not find evidence that the regulation was not justified, the WTO found an absence of evidence that the regulation was justified.
Congress passed the DPCIA to make the government responsible for verifying that tuna products are dolphin-safe); McChesney, supra note 19, at 1731 ("In 1990, Congress passed the Dolphin Protection Consumer Information Act ('DCPIA') in furtherance of the MMPA's goals.
For ease, this Note refers to the entire regulatory scheme as the DPCIA.
The DPCIA does not require that tuna be labeled "dolphin safe" for it to be sold in the United States.