In September 2020, the state of Florida enacted the Kristin Jacobs Ocean Conservation Act, a law expressly prohibiting the trade of shark fins. Although the law provides some exceptions to the prohibition––such as for domestically sourced fins procured with a valid federal Atlantic shark dealer permit––violations can result in fines of up to $9,500 and permanent revocations of fishing privileges.
In enacting the Kristin Jacobs Ocean Conservation Act, Florida became the fourteenth state to prohibit the shark fin trade, along with Hawaii, Washington, Oregon, California, Maryland, Illinois, Delaware, New York, Massachusetts, Texas, Rhode Island, Nevada, and New Jersey. States have enacted these prohibitions in response to both ethical concerns over the practice of finning––the process by which fins are removed from a shark before it is discarded back into the water alive––as well as conservation concerns over the sustainability of shark populations.
The shark fin trade can be extremely lucrative, with a pound of dried fin from some species selling for around $400. Consequently, up to 73 million sharks are estimated to be killed every year for their fins, which primarily are used in shark fin soup. Scientists are concerned that harvesting sharks in these numbers is seriously affecting many populations, with one study suggesting that over 90 percent of fins in the global shark fin trade come from unsustainable sources. For example, blue sharks (Prionace glauca) are the species most commonly caught for their fins, and recent assessments suggest that blue shark populations have substantially declined in several areas such as the North and South Atlantic, and the Mediterranean.
A Brief History of Laws Prohibiting Shark Finning in the United States
Scientists and policymakers have long been concerned over the effects of the shark fin trade on shark populations. Indeed, Congress enacted the Shark Finning Prohibition Act of 2000 in response to concerns over shark population declines and finning in the 1990s. That act amended the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to make it unlawful to: “1) remove any of the fins of a shark (including the tail) and discard the carcass of the shark at sea; 2) have control or possession of such a fin aboard a fishing vessel without the corresponding carcass; or 3) land any such fin without the corresponding carcass.” Although the Shark Finning Prohibition Act ostensibly banned the practice of finning in U.S. waters, loopholes such as permission to transfer fins between vessels at sea––see U.S. v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976 (9th Cir. 2008)––reduced the act’s impact on shark finning more broadly. Consequently, Congress enacted the Shark Conservation Act of 2010, which among other things prevented U.S. flagged vessels from purchasing shark fins on the high seas and returning them to the United States.
Nonetheless, perhaps out of a concern that the federal government was not sufficiently addressing declining shark populations, individual states began to take action against the shark fin trade. The first state to do so was Hawaii, which in 2010 prohibited the “possession, sale, and distribution of shark fins.” Penalties there include fines of $5,000–$15,000 for a first offense, and fines of $35,000–$50,000, along with up to one year in prison for a third offense. Other states followed with similarly worded laws.
Few cases have litigated the legality of state shark fin trade bans, and thus far the most significant cases have arisen out of California. In Chinatown Neighborhood Ass’n v. Harris, 33 F.Supp.3d 1085 (N.D. Cal. 2014), a citizen’s group challenged California’s shark fin trade prohibition for violating the Equal Protection and Commerce Clauses, and claimed that the law was preempted by the MSA. The district court upheld the law, finding it to be facially neutral, nondiscriminatory, and supported by plausible reasons in the legislative history. The court further held that the law does not discriminate against interstate commerce, and that although federal law regulates shark fin harvesting at sea, the MSA does not regulate what happens to fins after they have been landed. The Ninth Circuit affirmed that decision on appeal in Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015). To date, no state laws prohibiting the shark fin trade have been invalidated.
In some instances, this patchwork of individual state prohibitions has had the unintended effect of merely shifting the shark fin trade to other states. For example, the prohibitions on shark fin imports in California and New York came into effect in 2013 and 2014, respectively. Before its prohibition, California represented the largest U.S. market for shark fin consumption. After the prohibition in California and other states, the shark fin trade in Texas grew by 240 percent. Similarly, after Texas enacted its own prohibition, significant trade in shark fins shifted to Georgia. For this reason, some argue that more effective federal legislation is necessary to effectively address the shark fin trade.
Recent Attempts at Federal Legislation
Two notable bills attempting to address the shark fin trade have been introduced in Congress in recent years. One, the Shark Fin Sales Elimination Act of 2019 (H.R. 737), attempted to establish an outright prohibition on the shark fin trade in the United States, with exemptions for traditional fisheries, education, and science, and for dogfish fisheries. This bill passed the house with relatively wide bipartisan support. Its companion bill in the senate, S. 877, also received bipartisan support, and although intended to be part of the 2020 year-end legislative package its inclusion ultimately was blocked.
A different bill, the Sustainable Shark Fisheries Act of 2019 (H.R. 788), aimed to improve the sustainability of international shark fisheries by establishing a certification process to ensure that other countries trading sharks with the United States had similar management programs to those found here, which would then prohibit trade in sharks with countries that continue to practice finning. This bill and its senate counterpart, S. 1008, received less bipartisan support and failed to make it out of their respective committees.
There is a healthy debate within the scientific community as to which of these approaches is the most effective for shark conservation, although it appears as though a prohibition on the shark fin trade has more support. Additionally, the American Bar Association seemingly endorsed the Shark Fin Sales Elimination Act of 2019 when it took the step of adopting a resolution urging federal, state, territorial, tribal, and international governments to enact and enforce legislation prohibiting the possession, sale, and trade of shark fins. Shark finning by itself is by no means the only threat facing sharks, but when compared to the threats from fisheries bycatch, habitat loss, and climate change, unsustainable shark finning may be the most straightforward of these to address through legislation. Thus, with support from the scientific and legal communities, as well as the bipartisan support it previously received in Congress, it seems likely that some version of the Shark Fin Sales Elimination Act will be reintroduced in 2021. In the meantime, more states are expected to follow Hawaii’s lead and enact their own prohibitions on the shark fin trade.