California - Find Yourself Sued Here

By

James Wright, Senior Editor

Published on
February 12, 2008

Retail labeling laws for seafood are uniform in 49 states. Unfortunately, the exception happens to be the most populated state in the union, home to more than 37 million consumers - California. The regulatory rift was widened even further on Monday when the state's Supreme Court reinstated a twice-dismissed consumer lawsuit against retailers that failed to label their farmed salmon as "artificially colored." And the misinformation beat goes on.

A quick review of the Golden State's unique rules: About a year ago, California Attorney General Jerry Brown appealed a long-awaited San Francisco Superior Court decision that relieved tuna canners from labeling their products with a health warning about methylmercury. The state's controversial Proposition 65 requires food manufacturers to highlight potentially harmful ingredients on their product labels (no other state has such a law). Despite the tuna canners' victory in the most recent round of litigation, this case will once again enter a courtroom on the taxpayers' dime.

Then there's organic seafood. In the absence of official U.S. Department of Agriculture standards for organic seafood, products that are certified organic by an independent third party can be legally marketed as organic in the United States. Just not in California, which in 2006 became the first and only state to ban organic seafood. Sen. Jackie Speier, who spearheaded the action, called organic seafood "misleading" without USDA standards.

And on Monday the state's top court remanded a twice-dismissed consumer lawsuit against several major retailers, including Costco, Whole Foods Market, Kroger and Safeway. Because the stores allegedly failed to label their farmed salmon as containing "artificial colorants," consumers sued the retailers for trying to pass off farmed fish as wild, which can command higher prices (seven individual lawsuits were consolidated). They also contend that the carotenoids in salmon feed are "chemical dyes" that are potentially harmful.

No more harmful than a carrot. Astaxanthin is a common carotenoid used in farmed salmon feed to impart the orange-red hue of wild salmon; otherwise it'd be grayish and unappealing. Philip Walsh of Alfa Gamma Group in Miami pointed out in our Point of View column (SFB, February 2007) that astaxanthin is a nutrient, not a chemical dye, found in the diets of both wild and farmed salmon. The synthesized version used in feed is similar to beta-carotene, which you can buy anywhere.

Federal country-of-origin labeling (COOL) laws require retailers to clearly display whether their seafood is domestic or imported, wild or farmed and, if farmed, whether it contains artificial colorants. The U.S. Department of Agriculture is responsible for enforcing COOL, but the shortcomings of federal food and drug enforcement agencies are well documented.

The plaintiffs' attorney told me that Monday's decision "vindicated" consumers' right to know what's in their food. Fair enough. But it's also the latest in a long sequence of legal actions pinching the seafood industry, highlighting the failings of federal food-safety officials and scaring consumers from eating a healthful protein.

Thank you,
James Wright
Assistant Editor
SeaFood Business

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