California Revives Farmed-Salmon Colorant Lawsuit

The California Supreme Court yesterday reinstated a previously dismissed consumer lawsuit aimed at forcing retailers to label farmed salmon as artificially colored.

In the original lawsuit, filed three years ago, 11 California consumers contended that if federal and state regulators failed to enforce country-of-origin labeling (COOL) laws, they should have the right to demand the information through litigation.

Federal COOL laws require retailers to label foods containing dye or artificial colorants. Astaxanthin and canthaxanthin are carotenoids commonly used in salmon feed to obtain the desired pink to red-orange color in the fish's flesh. Both are on the FDA's generally-regarded-as-safe (GRAS) list.

The decision overturned two lower-court rulings that dismissed the legal challenge and referred resolution of the matter to the U.S. Food and Drug Administration.

The case, S147171, went before the California Supreme Court for arguments in early December. Named in the suit are retailers Bristol Farms, Costco, Safeway, the Kroger Co., Albertsons, Whole Foods Market and Trader Joe's and Seattle seafood supplier Ocean Beauty Seafoods.

Kevin Golden, an attorney for the Center for Food Safety in Washington, D.C., says the court's decision to allow the case to continue is a "huge step in protecting consumers' right to know what's in their food."

"FDA failed to enforce labeling laws and protect consumers' safety [concerning] farmed salmon," Golden says. "It's an issue of labeling but it's broader than that. There are implications for food safety across the board in all sectors."

Defense attorney Rex Heinke was disappointed in the court's decision, but adds that the defendants will seek a review by the U.S. Supreme Court. The defense has 90 days to seek the review, says Heinke, adding that four of the nine Supreme Court Justices must vote in favor of a review.

The case hinges on primary jurisdiction and whether federal law preempts citizens' rights to sue in order to enforce aspects of the Food, Drug and Cosmetic Act (FDCA).

"Should lawsuits decide this issue? Or is it something the government has to make a decision about?" Heinke says, adding that a provision of the FDCA, section 337(a), does not allow citizens to litigate to "enforce or restrain violations" of the federal law.

The California Supreme Court disagreed with the defendants on this matter, ruling that the "plaintiffs' claims for deceptive marketing of food products are predicated on state laws establishing independent state disclosure requirements 'identical to' the disclosure requirements imposed by the FDCA, something Congress explicitly approved."

"The case is about whether or not you can have private enforcement of food-labeling laws," Heinke says. "The only issue at this stage is that the plaintiff claims that the retailers got a higher price for their salmon because they didn't say it was farm raised. This isn't an issue about labeling right now - it's about past labeling. It's not about current labeling or future labeling."


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