Tuna Canners Await Prop 65 Appeal Ruling


SeafoodSource staff

Published on
February 19, 2009

California's ongoing bid to require mercury warnings on canned tuna was heard before a San Francisco appeals court on Tuesday, another step in a five-year legal battle regarding the state's controversial Proposition 65 law.

A San Francisco Superior Court judge ruled in May 2007 that the "big three" tuna companies - Bumble Bee Foods, Chicken of the Sea and StarKist - did not have to label their product with mercury warnings. Prop 65 requires food manufacturers to warn consumers of products containing potentially hazardous ingredients. Former Attorney General Bill Lockyer sued the three companies to comply with Prop 65 in 2004.

An attorney who represents the tuna companies told SeaFood Business yesterday that California's legal team abandoned its quest for warnings on tuna cans, opting instead to push the state to require retailers to post the U.S. Food and Drug Administration and Environmental Protection Agency joint 2004 consumer advisory on the risks of mercury from seafood consumption.

"We argued that the FDA advisory is not a Prop 65 warning and the state has no authority [to enforce it]," said Forrest Hainline of San Francisco law firm Goodwin Procter. The state's attorneys "got completely beat in every single way that they could lose and now they're trying to save some face," he added.

The California Court of Appeals has 90 days, starting Jan. 27, to issue its final ruling on the matter.

"There is a fundamental problem with Prop 65," said Hainline. "The warning, except in very few instances, is misleading. And federal law trumps it. Only the FDA has the authority to regulate food labels and it has decided that warnings are not good because they will scare away people from eating fish.


"After 25 days of trial [in 2007], many witnesses and scientific exhibits, I'm hopefully optimistic the Court of Appeals will affirm the trial court ruling."

The Center for Consumer Freedom, in its 2008 report "Tuna Meltdown," argued that due partially to the government's methylmercury warning, approximately 4.4 million U.S. households earning $30,000 or less completely eliminated canned tuna purchases between 2000 and 2006. During those years, says the Washington, D.C., group, women in those households gave birth to nearly 260,000 children.

"Oily fish like tuna and salmon are full of omega-3 fatty acids, which are something of a super-nutrient. And in study after study, scientists are rediscovering that the health benefits of eating fish far outweigh any hypothetical risks," said David Martosko, director of research for the CCF. "For the state of California to press its case for warning labels on what amounts to a health food is truly shameful, and amounts to public-health malpractice.

"The 2004 FDA and EPA advisory warning pregnant women and children to avoid eating swordfish, king mackerel, tilefish and shark because of possible elevated levels of methylmercury in those long-living predatory species. The FDA recommends that consumers eat up to 12 ounces, or two average meals a week, of fish and shellfish that are low in mercury, such as shrimp, canned light tuna, salmon, pollock and catfish.

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