In a major setback for environmental activists and California regulators, a superior court judge in San Francisco has ruled the state’s Proposition 65 cannot force companies to put mercury health warning labels on cans of tuna.
Preempted as Unnecessary
Judge Robert L. Dondero’s ruling, handed down May 11, was a complete victory for tuna canners Starkist, Chicken of the Sea, and Bumble Bee. The companies were sued in 2004 by California Attorney General Bill Lockyer (D), who sought to require labels on tuna cans or signs at store shelves warning customers about alleged health risks of mercury in tuna. Under California’s Proposition 65, approved by voters in 1986, companies are required to warn consumers of products containing hazardous ingredients.
But “after hearing extensive expert testimony from both sides and evaluating the persuasiveness and credibility of several peer-reviewed studies,” Dondero ruled in favor of the canning companies. Specifically, he ruled California law is preempted by a U.S. Food and Drug Administration (FDA) advisory on mercury in tuna, which holds mercury levels in tuna are not high enough to warrant health warnings, and that tuna is exempt from state law because mercury in fish occurs naturally.
Misleading Labels Sought
Had Dondero ruled in favor of California regulators, the state would have required labels on canned tuna to state some variation of the following: “WARNING: This product contains a chemical known to the State of California to cause cancer,” or “WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.”
In an August 12, 2005 letter to Lockyer, FDA Commissioner Lester M. Crawford strongly rejected this course of action. “[R]ather than requiring warnings for every single ingredient or product with possible deleterious effects,” Crawford wrote, the “FDA had deliberately implemented a more nuanced approach, relying primarily on disclosure of ingredient information and nutrition information, taking action in instances of adulterated or misbranded foods and, only under exceptional circumstances, requiring manufacturers to provide warnings on their labels.”
Citing an extensive review by the FDA and Environmental Protection Agency of data on human consumption of fish containing trace amounts of mercury, Crawford concluded no such “exceptional circumstances” existed. He added, “FDA believes that California should not interfere with FDA’s carefully considered approach of advising consumers of both the benefits and possible risks of eating seafood.”
Even more disappointing for proponents of applying Proposition 65 to canned tuna was Crawford’s rejection of alarmism with respect to mercury in fish. Proposition 65 warnings, he noted, “purport to convey factual information, namely that methyl mercury is known to cause cancer and reproductive harm. However, it is done without any scientific basis as to the possible harm caused by the particular foods in question, or as to the amounts of such foods that would be required to cause such harm.
“Stated differently,” Crawford added, “these warnings omit facts which are necessary to place the information in the proper context.”
Congress Taking Action
The possibility that other states could impose Proposition 65-like regulations on targeted products has led to legislation being introduced in Congress to preempt such action. The National Uniformity in Food Act would require states to seek federal permission before mandating food warning labels not required by the federal government. Sponsored by Rep. Michael Rogers (R-MI), the bill, H.R. 4167, was approved by the House on March 8 by a vote of 283 to 139 and is now awaiting action in the Senate.
Elizabeth Whelan, president of the New York-based American Council on Science and Health, said, “The Proposition 65 warnings are absolutely, scientifically absurd.”
Added Whelan, “Illogically, Proposition 65 applies only to chemicals released by human activities, while it exempts natural carcinogens, which in many cases pose a much greater threat to human health.”
Dondero’s ruling is the latest chapter in the ongoing effort by environmental groups and allied public officials to present trace elements of mercury in fish and in the air as posing a significant risk to public health. Groups such as the Natural Resources Defense Council, Sierra Club, Environmental Working Group, and League of Conservation Voters have highlighted the alleged threat posed by mercury emanating from coal-fired power plants in the United States.
But according to a 2005 report by the House Resources Committee–Mercury in Perspective, Fact and Fiction About the Debate Over Mercury–such emissions account for only about 1 percent of annual global mercury deposition.
Bonner R. Cohen ([email protected]) is a senior fellow at the National Center for Public Policy Research in Washington, DC.
For more information …
Mercury in Perspective, Fact and Fiction About the Debate Over Mercury, by U.S. House of Representatives Resources Committee Chairman Richard W. Pombo (R-CA) and Energy and Mineral Resources Subcommittee Chairman Jim Gibbons (R-NV), is available online at http://resourcescommittee.house.gov/Press/reports/mercury_in_perspective.pdf