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Warning on Tuna Cans Is Rejected

Times Staff Writer

In a decision that state officials called “devastating” for public health, a Superior Court judge has ruled that tuna companies don’t have to warn consumers about the mercury in canned fish under Proposition 65, California’s law requiring companies to warn consumers of products containing hazardous ingredients.

The tuna case -- involving a product that is consumed in large quantities by millions of people -- is considered one of the most important in the 20 years since California voters overwhelmingly adopted the environmental initiative. The law requires companies to warn consumers about products that contain chemicals that cause reproductive harm or cancer.

State Atty. Gen. Bill Lockyer sued tuna companies Starkist, Chicken of the Sea and Bumble Bee in 2004, seeking to force warnings on store shelves or can labels.

But after a two-month trial, San Francisco Superior Court Judge Robert L. Dondero filed a ruling late Thursday that sided with the tuna canners on all issues -- that the state law is preempted by a federal Food and Drug Administration advisory, that mercury levels are not high enough to warrant health warnings, and that tuna is exempt because mercury in fish is naturally occurring.

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The attorney general’s office is evaluating whether to appeal the ruling. If it is upheld by an appellate court, it would set a precedent for other Proposition 65 cases.

Tuna companies said the decision confirms that their products are “healthy and safe.”

“Consumers are really the winners in this case,” said Forrest Hainline, a San Francisco attorney with the law firm Goodwin Procter, who represented the tuna canners. “The judge has made a common-sense ruling based on nutrition and science.”

But Lockyer’s office said that consumers, particularly pregnant women and young children, will be at greater risk from mercury. Lockyer spokesman Tom Dresslar called the ruling “wrong on the law, wrong on the science and bad for the women and children of California.”

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“It’s a devastating decision, particularly for poor women,” added Deputy Atty. Gen. Susan Fiering. “The people who will be most hurt are women who don’t know about the FDA advisory on the Internet and don’t have access to good medical care so they won’t know about the danger of mercury in this fish.”

The FDA warns that women who are pregnant, might become pregnant, or are nursing, as well as young children, should limit fish consumption. They are advised to eat no more than 12 ounces per week of fish low in mercury, including canned light tuna. They should eat no more than six ounces per week of fish with a higher mercury content, including canned albacore or white tuna. A small can of tuna is six ounces.

The companies say that warning signs or labels would scare consumers off from a healthy, economical food. The FDA, doctors and other health experts agree that tuna and other fish is nutritious, but recommend that women who are or might become pregnant and young children limit consumption because mercury is a potent neurotoxin that can harm developing brains.

While the judge’s ruling prevents the state from requiring warnings for canned tuna, it is not binding in other lawsuits in which California is seeking warnings about products, including acrylamide in French fries and potato chips and lead in Mexican candy.

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“We certainly expect that people will be waving this decision around and making all kinds of arguments from it and trying to use it to undermine Proposition 65. But all we can do is continue to enforce the law to the best of our ability. It is not going to deter us from taking steps to enforce Proposition 65 and trying other cases,” Fiering said.

One similar case, however, could be affected. Lockyer also sued grocery stores to force warning signs about mercury in fresh and frozen fish. The state is evaluating whether to continue that case.

In the canned tuna case, Dondero ruled that the state could not require a warning different from the FDA’s recommendation. State attorneys wanted to require signs in stores because many women are unaware of the FDA advisory.

The Bush administration sided with the tuna industry, saying, in a letter to Lockyer that was requested by the companies’ attorneys, that the state efforts would conflict with the FDA’s efforts. The judge agreed, saying that the federal view should “be accorded substantial deference.”

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Congress is debating a proposed law that would prohibit states from taking their own steps to warn about health threats of food products.

The judge’s ruling came after more than 20 days of scientific testimony about the health risks and sources of mercury.

“We had an overwhelming amount of science to support our case,” Fiering said. “The decision appears to sign off on everything [the tuna canners] wrote, word for word, and that truly does surprise us. We expected from this judge a much more careful analysis.”

The judge wrote that he ruled in favor of the canners “after hearing extensive expert testimony from both sides and evaluating the persuasiveness and credibility of several peer-reviewed studies.”

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David Burney, executive director of the U.S. Tuna Foundation, which represents the canners, said the state’s arguments were based on the opinions of “extremists.”

“Instead of finding ways to discourage people from eating seafood, we should be busy finding ways to help everyone eat better,” Burney said in a statement. “Obesity is such a big problem in our culture, and canned tuna has been shown to be healthy, and now, according to the strictest standard in the world, confirmed to be safe.”

Testimony in the case showed that after testing children in the North Atlantic’s Faroe Islands for about 20 years, scientists have concluded that when pregnant women are exposed to fairly low levels of mercury, their children have reduced IQs. Federal guidelines for fish consumption are based on the Faroe Island tests.

But the tuna industry contended that instead of using the studies of children, which were endorsed by a National Academy of Sciences panel, a safe level for mercury should be based on older tests of laboratory rats, which found higher levels harmed brains. The judge agreed in his ruling.

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Dondero also determined that mercury is a natural compound and “the tuna canners have no way to control the level of methylmercury in their canned tuna products.”

Under Proposition 65, products are exempt if the health threat comes from a “naturally occurring substance” unless it is a result of human activity. Mercury occurs naturally, but power plants and factories release it into the air and water where it contaminates fish.

Environmentalists said they were shocked and disappointed.

The ruling “flies in the face of common sense and appears to be discounting mainstream science,” said Michael Bender of the Mercury Policy Project.

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