California Sues Supermarkets for Failing To Label Mercury inFish

California Sues Supermarkets for Failing To Label Mercury inFish

SACRAMENTO, Calif.--California's attorney general,Bill Lockyer, filed suit against five grocery chains on Jan. 17, asking thecourt to prohibit the stores' sales of tuna (but not canned tuna), shark andswordfish until proper warnings are posted for mercury content. The complaint,filed in the San Francisco Superior Court, alleges the grocers violatedProposition 65 in failing to provide "clear and reasonable" warningsbefore exposing people to mercury, a known carcinogen and reproductive toxin.The state is seeking civil penalties for violations of Prop 65 and the state'sUnfair Competition Act. Under both laws, each of the five defendants--Safeway,Kroger's, Albertsons, Trader Joe's and Whole Foods--is liable for civilpenalties of up to $2,500 per day for each proven violation, perhaps as far backas 1988.

"The goal [of filing this lawsuit] is to get the requiredwarnings posted in the stores," said a spokesman for the Office of theAttorney General. "The grocers we have named in this lawsuit have not beencomplying with [Prop 65] as it relates to mercury and specific fish."

In spite of filing the complaint, Lockyer said Californiansshould not be deterred from consuming fish. "Generally, fish are animportant source of protein and play a prominent role in many Californians'diets," Lockyer said in a press release. "But consumers deserve toknow when they are being exposed to chemicals that can cause cancer, birthdefects and reproductive harm. Public health agencies have advised pregnantwomen not to eat swordfish and shark because those fish contain relatively highlevels of mercury."

The mercury levels found in fish have been a matter ofgovernment concern more than once over the past couple of years. In March 2001,the Food and Drug Administration (FDA) issued an advisory, urging women who arepregnant or may become pregnant to avoid eating shark, swordfish, king mackereland tilefish, and to consume no more than an average of 12 ounces per week ofother types of fish. FDA held a committee hearing July 23 to 25, 2002, to reviewthis advisory, after critics and some consumer groups charged that lobbying fromthe tuna industry influenced the agency's decision to not include tuna on thelist. FDA's Center for Food Safety and Nutrition (CFSAN) is working on a plan ofaction to better define "a variety of fish," to work with theEnvironmental Protection Agency (EPA) and states to bring commercial andrecreational fish under the same advisory, and to analyze what contribution tunamakes to methylmercury levels in women and how it should be addressedspecifically in FDA's revamped advisory.

The fact that FDA issued an advisory in March 2001 regarding themercury content in fish does not impact Prop 65 cases, according to Marc Ullman,partner at New York's Ullman Shapiro & Ullman. "Basically, Prop 65 is astatute where anyone who sells any consumer goods needs to be concerned aboutwhether they are in compliance. It's a Draconian statute and, in this case, mayraise a variety of interesting legal issues." Some potential issues,according to Ullman, are whether the chains can be found in violation if mercurylevels occur below those identified by FDA as being problematic, and if there isa preemption argument, meaning if the federal government has establishedguidelines, the states may be barred from adopting conflicting guidelines.

"It remains to be seen what the attorney general'sobjective here would be," Ullman said. "Is it signage and warnings, oris it monetary? Prop 65 cases of this nature generally involve a lot ofmoney."

The plan now is for the Office of the Attorney General tocontinue along legal avenues to resolve this lawsuit. "[The defendants]will file an answer to our complaint, and in the meantime, we'll continue tohave discussions with the defendant stores and see if we come up with asolution," the spokesman said. "The solution will need to be a clearand reasonable warning that lets people know about the mercury in thefish."