Judge rejects warning label on tuna cans: Calif. court: Advisory on mercury unneeded

Los Angeles Times
May. 14, 2006

A state Superior Court judge has ruled that seafood producers don't have to warn consumers of the mercury in canned tuna under Proposition 65, which requires companies to warn of products containing hazardous ingredients.

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

After a two-month trial in San Francisco, Superior Court Judge Robert 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.

"Consumers are really the winners in this case," said Forrest Hainline, a San Francisco attorney who represented the tuna canners.

But Lockyer's office said 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."

The Bush administration, in a letter to Lockyer requested by the companies' attorneys, said California's efforts would conflict with the FDA's efforts.

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

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. For fish higher in mercury, including canned albacore or white tuna, they should eat no more than 6 ounces per week. A small can of tuna is 6 ounces.

The companies say warning signs or labels would scare consumers off from a healthy, economical food.

Dondero ruled that the state could not require a warning different from the FDA's recommendation.

State officials wanted to require signs in stores because many women are unaware of the FDA advisory.

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.