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Maine Lobster v. Right Whale

By - Tim Rosado

The Maine lobster industry filed a defamation lawsuit (March 13) against the Monterey Bay Aquarium Foundation, the organization that runs the sustainable seafood rating program "Seafood Watch", claiming that the organization's "false and defamatory" statements and ratings have cause substantial harm to the industry and the Maine lobster brand.

Lobster Ratings Changes

In September last year, Seafood Watch, a sustainable seafood program centered out of a Monterey Bay Aquarium (California), announced that it assigned a “red” rating to those fisheries using pots, traps, and gillnets. Seafood Watch argued that entanglement in fishing gear is the leading cause of death of right whales, which have declined in population by 25% over the past decade and where just 340 are known to live today.

In assigning a red rating, Seafood Watch acknowledged that more than 90% of entanglements cannot be linked to a specific gear type, and just 12% can be linked to a specific location; however, the organization said that until there is more evidence for assigning risk more narrowly, all fisheries using this type of gear would be considered as putting right whale populations at risk.

Under the Seafood Watch red rating, consumers are advised to avoid such products; to “take a pass on these for now; they're overfished, lack strong management or are caught or farmed in ways that harm other marine life or the environment.” This is the lowest category of rating among the four rating categories of the organization. As a result, Seafood Watch asked consumers to completely avoid key products such as North American Lobster and Canadian Snowcrab.

Another sustainable seafood program–the Marine Stewardship Council (MSC)–announced a similar action in November and, as of December 15, Gulf of Maine lobster is no longer "eligible to be sold as MSC certified sustainable or carry the MSC blue fish ecolabel on product."

The MSC decision focused on the fact that a federal court decision in July 2022 against the Department of Commerce found that agency regulations intended to reduce the risk of the Maine lobster fishing to right whales actually did not meet legal requirements of the Marine Mammal Protection Act or the Endangered Species Act for fixed-gear fisheries (i.e., fisheries with rope continuously in the water). The MSC indicated that the industry should comply with the law before its rating will change.

Following the decisions of Seafood Watch and MSC, Whole Foods announced (November 30) that it was suspending sales of lobster from the Gulf of Maine at its roughly 500 U.S. locations, and also will not use lobster as an ingredient for other products. This action follows decisions by Blue Apron and HelloFresh in September to stop selling/using Maine lobster.

The Maine lobster industry believes that the Seafood Watch designation should have acknowledged what the industry has done to address environmental concerns, and also should have directed its actions to specific problem actors/countries given the lack of evidence that shows the Maine lobster industry has specifically contributed to a significant number of right whale deaths.

In a October letter to Maine Representatives and Senators, Seafood Watch stated that it is keeping its current rating, reiterated the specifics of its scientific approach, and also mentioned the court case emphasized by MSC.

Congress Acts

The court case regarding the law and Commerce regulations is, however, now moot. In December, Congress included a provision within FY 2023 appropriations (funding) law that provides the Maine lobster industry with six additional years (until the end of 2028) to comply with new requirements in Commerce regulations that were in the process of being updated as a result of the court case decision.

In general, updated rules were seeking a 90% risk reduction to right whales versus a 50% risk reduction under the prior rule challenged in court. An update regulation was expected to require the removal of portions of fishing gear from the water during peak times of the year that are important to right whales in key zones, and the use of weakened rope when hauling catch out of the ocean.

Environmentalists argue that providing more time for stricter rules will lead to more death among the dwindling right whale population. The industry believes it is taking reasonable measures to prevent whale deaths even without sufficient evidence of linkages between Maine lobster fishing practices and whale deaths.

What Now?

Congress generally has no say over the ratings of Seafood Watch and MSC, and nothing is likely to change for now from these organizations. The current lawsuit against Seafood Watch will likely take some time to be considered by courts, and it unlikely to succeed anyway. The industry likely hopes for some kind of negotiated settlement that would lead to a ratings change, but for now that seems unlikely.

In January, NOAA reported a right whale death near North Carolina that was "heavily entangled" in fishing gear, and a dead calf was also found in the vicinity which could have been the calf of the entangled whale. In February, NOAA put in place a temporary emergency rule that required the removal of gear in certain areas until the end of April (2023).

While Congress could change its law again and speed up the timeframe for new permanent NOAA rules protecting right whales, this seems unlikely. The issue is effectively decided for now from a policy perspective.


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