Fish canners
challenge mercury-labeling suit
State wants makers to warn of dangers on tuna packages
Jane Kay, Chronicle
Environment Writer
SAN FRANCISCO Food industry
and health groups nationwide are closely watching a lawsuit
in San Francisco Superior Court that will reach a milestone
Friday when a judge hears state attorneys claim that big
canners are breaking the law by failing to tell consumers
about mercury in tuna fish.
Not so, say lawyers for defendants StarKist,
Chicken of the Sea and Bumble Bee. Their popular product
makes a delicious and healthful sandwich, and doesn't fall
under the purview of Proposition 65, the initiative passed
by voters 20 years ago to rid toxic substances in consumer
products, food and water, they say.
The state sued in 2004 under Prop. 65 to
force the tuna canners to warn of the risks of mercury,
a potent neurotoxin. The companies already face penalties
of $2,500 a day per violation dating back to June 2000,
and the amount is growing every day as they refuse to warn,
state attorneys say.
On Friday, lawyers for the warring sides go back to the
San Francisco court after 24 days of trial last year to
present their final arguments before Judge Robert L. Dondero.
The judge could rule in the coming weeks.
Industry and health groups are closely watching
for Dondero's decision. Although his findings would affect
only this case, they could bear on California's ability
to enforce cases involving chemicals in food under Prop.
65, which could influence what others states do. State food-labeling
laws already are under attack in the U.S. Congress.
Prop. 65 has been used to rid bottled water
of arsenic, and calcium supplements, dishes and caps atop
wine bottles of lead. Other suits charge manufacturers with
failing to warn about lead in some balsamic vinegars and
Mexican candy, and about acrylamides produced by high heat
in french fries and potato chips.
Mercury is particularly damaging to the developing
brain and nervous system, scientists say. In children, mercury
can impair intelligence and, in high levels, cause permanent
brain damage. In adults, it can harm the nervous, cardiovascular
and reproductive systems.
"This is the classic Prop. 65 case.
It's exactly how Prop. 65 is intended to operate,'' said
Sue Fiering, a deputy attorney general who is arguing in
court. "If women are given this information, it enables
them to make choices to protect their children.''
The nonprofit Public Media Center in San
Francisco filed the original suit in 2001 against the parent
companies, Tri-Union Seafoods, Bumble Bee Seafoods and Del
Monte Corp. Attorney General Bill Lockyer's office joined
in 2004.
The suit alleges that the companies failed
to warn potential buyers about the risks of canned tuna.
The state wants informational signs in the aisles or other
advisories.
"We have a healthful product that everyone
should eat, including pregnant women and women of child-bearing
age. Studies show that if they don't eat fish, including
tuna, their children will suffer,'' said Forrest A. Hainline,
an attorney with Pillsbury, Winthrop in San Francisco, which
represents the canners.
"Prop. 65 warnings would frighten people
away,'' said Hainline.
The companies argue that Prop. 65 warnings
would conflict with the FDA's advisories on mercury in seafood;
thus, federal law pre-empts state law.
The FDA issues advice on its Web site and
in mailings to health officers.
Last year, a year after lawyers for the tuna
canners requested it, then-FDA commissioner, Lester M. Crawford,
wrote a letter to Lockyer saying California's move to secure
warnings conflicted with the federal role.
Two weeks ago, the House passed a bill that
manufacturers, retailers and other allied businesses had
wanted for the past three years. The bill, which now goes
to the Senate, would prohibit states from requiring disclosures
on food. An amendment would allow states to issue warnings
about the health effects of mercury in fish.
Lockyer, who opposed the bill along with
other state attorneys, is arguing in the tuna trial that
the FDA's warning system isn't protective enough for the
people of California. Some women don't have computers and
would miss federal advisories. And just because the FDA
can require labels revealing additives in food doesn't mean
that states can't require similar warnings, yet aimed at
a wider audience.
"We can require anything unless it's
actually prohibited by FDA,'' said Ed Weil, a deputy attorney
general who coordinates Prop. 65 cases.
The trial has relied heavily on testimony
from experts with differing conclusions about safe levels
of canned tuna consumption.
One of the prime arguments of the companies
is that consumers eating canned tuna wouldn't be exposed
to mercury above the state's guideline. A San Jose toxicologist,
Jay Murray, who also does work for the trade group, the
U.S. Tuna Foundation, came up with a level from a study
that produced observable health effects in rats. He then
averaged that level over 60 days, citing a study showing
that people generally eat canned tuna every two months --
and concluded that the exposure would be below the level
that could hurt the rats.
The state brought in Deborah Rice, who was
one of three EPA scientists who prepared the agency's safety
guidelines on mercury. Now a health official in Maine, Rice
testified that it's not necessary to rely on a small rat
study when the EPA and other agencies look at studies of
human populations. She also testified that with some toxic
chemicals, it's inappropriate to average an exposure over
time. A single high dose of mercury could have an effect
on a fetus, she said.
The companies also argue that mercury occurs
naturally in the ocean, meaning the businesses can't control
what happens in nature, putting outside the purview of Prop.
65. Only up to 5 percent of the mercury in the ocean comes
from industrial sources, Princeton University geophysicist
Francois Morel testified at the trial.
But testifying for the state, William Fitzgerald,
a nationally known mercury-cycling expert from the University
of Connecticut, said that about 50 percent of the mercury
deposited in the ocean could come from industry.
In 2003, the state sued California supermarket
chains, and they agreed to post interim warnings at the
fresh and frozen fish counters. The parties are trying to
resolve the issue of past penalties. Andronico's was the
only market to settle the case, and it voluntarily posts
warnings in the canned tuna aisle.
In 2005, after the state sued, 20 restaurant
chains began to warn about mercury in fish, putting placards
near the entrance.
|
