AuthorTelesetsky, Anastasia
PositionTwenty-First Century Food Law: What's on Our Plates?

While the global seafood business is valued at approximately $148 billion, many commercial fishing stocks are struggling to recover. Large seafood-importing States such as the United States should avoid fish that have been illegally captured or that are harvested using poor environmental practices, such as not reporting discards associated with the harvest. Traceability is a critical component of food law: to inform consumers not just of the origin of the food but also of the transit of a food through a complex supply chain. The Um'ted States has recently adopted a new rule on traceability designed to combat illegal fishing imports. As this Article suggests, the federal rule, as drafted, will be unlikely to change much in industry practice without additional targeted investments in traceability, including better implementation of wildlife crime whistleblower statutes, a more comprehensive set of environmental reporting standards for seafood sold in the United States or transiting through the United States, and additional support for the industry to better manage fishery-related processing waste.

  1. OVERVIEW 766 II. GLOBAL TRADE IN THE FISHING INDUSTRY AND OVERFISHING 769 III. TRANSPARENCY AND 21ST CENTURY FISH PRODUCTION 773 A. Illegal Fishing 773 1. Regional Catch Documentation Schemes for the United States 775 2. United States' Implementation of Regional Fisheries Management Organizations: Transparency Obligations and Catch Documentation Schemes 778 B. Unreported Fishing 780 1. United States' Response to Managing Discards 781 2. Global Fisheries' Response to Discards 784 IV. RECOMMENDATIONS TO IMPROVE ECOLOGICALLY MEANINGFUL TRANSPARENCY ACROSS THE FISHERY SUPPLY CHAIN 785 A. Legal Protection for Industry Whistleblowers, Particularly Foreign Whistleblowers 785 B. Extending Environmental Traceability for all Fisheries Products Traded or Transferred Within the United States and Its Territories 788 C. The United States Needs to Intervene to Reduce Fish Processing Waste and Create Strategies to Reduce Consumer Waste 792 V. CONCLUSION 794 "In 1994, seafood may have peaked. According to an analysis of 64 large marine ecosystems, which provide 83 percent of the world's seafood catch, global fishing yields have declined by 10.6 million metric tons since that year. And if that trend is not reversed, total collapse of all world fisheries should hit around 2048." (1) I. OVERVIEW

    Is there a future for abundant marine fish? Or are we past peak wild seafood? This Article explores the nexus between food law and marine fisheries production to conclude that as oceans empty, greater investments will be needed to ensure compliance with the rule of law and to restore marine fisheries to cope with rapid environmental change. At least some of the needed investments will be in the form of legal interventions, including implementation of verifiable traceability practices within the global fish trade. This Article will focus on recent regulatory programs designed to promote traceability within the United States, the largest national fish import market in the world. (2)

    As consumers--including corporate consumers--strive to improve their sustainability profiles, traceability is becoming increasingly important. In fact, according to a 3,000 person poll conducted in 2012, almost 80% of American consumers who regularly eat fish indicated that the use of sustainable catch methods to harvest fish is "important" or "very important." (3) Approximately half of the polled individuals were willing to pay more for sustainable fish. (4) Large consumer multinationals such as Walmart are trying to meet this market demand by reconfiguring their supply chain through improved traceability. (5) While some of the early increase in demand driven by large buyers has strained the ability to deliver reliable and credible levels of sustainability, (6) consumers' desire to know the origins and journey of seafood--from hook or net to plate--is an emerging norm for a majority of American fish consumers. (7)

    The traceability of fish back to sustainable fisheries, for Global North consumers who have options about what they eat, has consequences for fishing families that may not be benefiting from the global boom in seafood. Today, fish remain a critical part of the daily diet for many coastal communities, particularly in Global South States, (8) by providing basic, high-quality protein and key amino acids for people with no other access to this type of nutrition. (9) The Food and Agriculture Organization of the United Nations (FAO) estimates that around 3.1 billion people depend on seafood for at least 20% of their protein needs. (10) The number of people relying on fisheries products may increase in the years to come, (11) as population numbers increase and other sources of protein such as livestock become increasingly unreliable due to desertification. (12)

    Without traceability, there is little hope for disrupting current industrial practices, where marine fishing resources across the globe are increasingly exploited at unsustainable levels of fishing effort or where marine habitat is being destroyed by land-based human acts and omissions. Once abundant fishing grounds are in jeopardy due to the overcapacity of fleets. (13) Commercial marine fisheries that are tracked by FAO are generally declining. (14) Excess nutrients from the land have additionally turned "near-shore ecosystems into marine graveyards." (15) Eutrophication caused by excess nutrients contributes to harmful algal blooms (HABs), leading to the deterioration of aquatic ecosystems and, in some cases, food poisoning from toxin-producing phytoplankton. (16) The rapid loss of key habitats--e.g., coral reefs due to both inadequate coastal zoning protection and warming oceans (17)--is impacting breeding areas for fish and shellfish. (18) Sustainable fish production is not just desirable to soothe consumers' consciences, but it is essential for the future viability of the industry.

    This Article starts with a few basic observations about the profitability of the industry and overfishing of wild marine fish. The next Part of the Article identifies two fishing supply transparency challenges for marine-captured fish brought into the U.S. market (illegal fishing and unreported fishing/discards) and the existing U.S. legal responses to tackling these fishing supply chain issues. Countries that are major consumers of fish products, such as the United States, must take precautionary management approaches when regulating the fish supply chain. While most regulatory attention has focused on food handling and safety concerns, (19) additional regulatory attention is needed to ensure that food is sourced from well-managed fisheries that do not jeopardize the future of fishery resources. While a growth in aquaculture technology may meet the needs of certain consumers of fish and seafood who have the capacity to pay certain premiums, aquaculture is unlikely to meet the needs of many artisanal and community fishing communities who do not have the existing financial capacity to invest in viable fish farms. (20) Any global transition from marine fishery resources to aquaculture resources will take time and systematic planning. In order to better protect existing marine fishery resources from further declines, the Article concludes with three recommendations: 1) bolster legal protection for commercial fishing industry whistleblowers, particularly for foreign crew harvesting fish outside U.S. waters; 2) require environmental traceability beyond the current, minimal traceability efforts for all fisheries products traded or transiting within U.S. territories; and 3) further regulate fish processing waste and seafood waste in the United States in order to both recover greater value for the industry and avoid food waste.


    Global trade is a significant driver of fish supply with about 78% of seafood products exposed to international trade competition. (21) Fish is one of the most traded commodities and is a major driver to national economic growth and development. (22) "In 2014, more than 200 countries reported exports and imports of fish and fishery products." (23) The top five exporters were China, Norway, Vietnam, Thailand, and the United States; the largest importers were the United States, Japan, China, and members of the European Union. (24) Between 1976 and 2014, world trade has increased 245% in quantity of fish traded and increased 515% when measuring fish traded for human consumption. (25) As measured by value, exports from developing countries account for over half of aquaculture and marine fish production. (26) In addition to the fish trade, there is also significant trade in fisheries services, including chartering of fishing vessels, fisheries research, and monitoring efforts. (27)

    Some of this rapid increase in global trade of fishery products is the result of processing where the preparation of fish (e.g., fileting) is outsourced. (28) Other drivers of an increase in the globalization of the fishing industry include better transport, technological innovations in fishing, and trade liberalization. (29) The expanding interest in the fishery trade is, in part, due to its profitability. The global fish trade has increased from $8 billion in 1976 to $148 billion in 2014, with an annual average growth rate of approximately 8% over the period. (30)

    Some fisheries are being actively managed for sustainability criteria. Catches from some of these fisheries accounted for 47% of the world's total marine catch in 2013 and are considered to be "oscillating around a globally stable value." (31) These fisheries include the Eastern Central Atlantic, Northeast Pacific, Eastern Central Pacific, Southwest Atlantic, Southeast Pacific, and Northwest Pacific. (32) Other fisheries--accounting for 21% of the global marine catch in 2013--are declining from...

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