Court Rejects California’s Mercury Warning on Tuna

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SandBar 8:2, July, 2009 Recommended citation: Bowling, Terra , Court Rejects California's Mercury Warning on Tuna , 8:2 SandBar 19 (2009). Court Rejects California’s Mercury Warning on Tuna People ex rel. Brown v. Tri-Union Seafoods, LLC, 2009 Cal. App. LEXIS 309 (Cal. App. 1st Dist. Mar. 11, 2009). *Terra Bowling, J.D.* Pick up any pregnancy-related book, and you’ll likely find a recommendation for pregnant women to avoid or limit consumption of certain fish and shellfish. This is because the fish contain varying levels of methylmercury, a form of mercury, which is a reproductive toxin that can harm a developing fetus. The state of California sued several tuna companies to require the companies to warn pregnant women and women of childbearing age that they are exposed to mercury when they consume canned tuna. The state claimed that the companies were required to provide warnings on their tuna products sold in the state under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. A California appellate court rejected the state’s contention, finding that canned tuna is exempt from Proposition 65, since mercury in tuna is “naturally occurring.” Background Proposition 65 requires companies to warn consumers about products that contain chemicals that cause reproductive harm or cancer. The duty to warn is exempted from the law in several circumstances: 1) when federal law preempts state authority for warning of exposure to a particular chemical; 2) when exposure to a listed chemical falls below the threshold level established under statutory and regulatory criteria; and, 3) when the chemical is naturally occurring in the food. Proposition 65 requires the governor to publish a list of chemicals known to the state to cause cancer or reproductive toxicity. Mercury has been listed as a chemical known to cause reproductive toxicity and mercury compounds are listed as a chemical known to cause cancer. Nearly all fish and shellfish contain traces of mercury; however, larger fish, like shark and swordfish, have the highest levels of the chemical. The Food and Drug Administration (FDA) has issued an advisory suggesting pregnant women and women of childbearing age limit consumption of fish with lower levels of mercury, which includes canned tuna, to about twelve ounces per week, with a limit of six ounces per week for canned albacore tuna.1 California sued several tuna companies, alleging violations of Proposition 65, for selling and distributing canned tuna products in the state without providing a clear and reasonable warning that the products contain mercury. The trial court found that the companies were exempt from Proposition 65 warnings, because federal law—through the FDA advisory—preempted a state warning. Furthermore, the court found the companies were exempt from a Prop 65 warning because the amount of mercury in tuna did not meet the established threshold warning level. And, finally, the court found that the companies were exempt because the mercury was naturally occurring in the food. Naturally Occurring The trial court ruled for the tuna companies on three alternative grounds; however, the appellate court confined its analysis to the trial court’s conclusion that virtually all methylmercury is naturally occurring and is therefore exempt from Proposition 65 warnings. Within that ruling, the court primarily examined whether the tuna companies presented substantial evidence that the methylmercury in canned tuna is naturally occurring. The trial court had examined several scientific studies and entertained expert witnesses from both sides to determine whether methylmercury in the oceans is the result of human activities or is naturally occurring. The trial court found the tuna companies’ experts to be more credible, and, therefore, ruled in their favor. The court of appeals agreed, concluding that there was substantial evidence supporting the trial court’s finding that mercury in tuna was naturally occurring, which exempted the tuna companies from Proposition 65’s warning requirements. The court affirmed the trial court’s ruling, noting that “when substantial evidence supports the trial court’s decision, as it does here, we have no power to substitute our own deductions or preferred set of facts.”2 Conclusion Based on the court’s ruling that mercury in tuna is “naturally occurring,” canned tuna is exempt from California’s Proposition 65. However, the court noted that its ruling was limited to the substantial evidence issue and that “there are potential scenarios that could possibly lead to a renewed Proposition 65 claim against the Tuna Companies or similar companies that would survive res judicata and collateral estoppel challenges.”3 Endnotes 1. Available at http://www.fda.gov/Food/FoodSafety/ProducSpecificInformation/Seafood/Foodborne PathogensContaminants/Methylmercury/ucm115662.htm . 2. People ex rel. Brown v. Tri-Union Seafoods, LLC, 2009 Cal. App. LEXIS 309, 45 (Cal. App. 1st Dist. Mar. 11, 2009). 3 . Id. at 45.
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SandBar 8:2, July, 2009
Recommended citation: Bowling, Terra , Court Rejects California's Mercury Warning on Tuna , 8:2 SandBar 19 (2009).

People ex rel. Brown v. Tri-Union Seafoods, LLC, 2009 Cal. App. LEXIS 309 (Cal. App. 1st Dist. Mar. 11, 2009).

Terra Bowling, J.D.

Pick up any pregnancy-related book, and you’ll likely find a recommendation for pregnant women to avoid or limit consumption of certain fish and shellfish. This is because the fish contain varying levels of methylmercury, a form of mercury, which is a reproductive toxin that can harm a developing fetus.
The state of California sued several tuna companies to require the companies to warn pregnant women and women of childbearing age that they are exposed to mercury when they consume canned tuna. The state claimed that the companies were required to provide warnings on their tuna products sold in the state under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. A California appellate court rejected the state’s contention, finding that canned tuna is exempt from Proposition 65, since mercury in tuna is “naturally occurring.”

Background
Proposition 65 requires companies to warn consumers about products that contain chemicals that cause reproductive harm or cancer. The duty to warn is exempted from the law in several circumstances: 1) when federal law preempts state authority for warning of exposure to a particular chemical; 2) when exposure to a listed chemical falls below the threshold level established under statutory and regulatory criteria; and, 3) when the chemical is naturally occurring in the food.
      Proposition 65 requires the governor to publish a list of chemicals known to the state to cause cancer or reproductive toxicity. Mercury has been listed as a chemical known to cause reproductive toxicity and mercury compounds are listed as a chemical known to cause cancer.
      Nearly all fish and shellfish contain traces of mercury; however, larger fish, like shark and swordfish, have the highest levels of the chemical. The Food and Drug Administration (FDA) has issued an advisory suggesting pregnant women and women of childbearing age limit consumption of fish with lower levels of mercury, which includes canned tuna, to about twelve ounces per week, with a limit of six ounces per week for canned albacore tuna.1
      California sued several tuna companies, alleging violations of Proposition 65, for selling and distributing canned tuna products in the state without providing a clear and reasonable warning that the products contain mercury. The trial court found that the companies were exempt from Proposition 65 warnings, because federal law—through the FDA advisory—preempted a state warning. Furthermore, the court found the companies were exempt from a Prop 65 warning because the amount of mercury in tuna did not meet the established threshold warning level. And, finally, the court found that the companies were exempt because the mercury was naturally occurring in the food.

Naturally Occurring
The trial court ruled for the tuna companies on three alternative grounds; however, the appellate court confined its analysis to the trial court’s conclusion that virtually all methylmercury is naturally occurring and is therefore exempt from Proposition 65 warnings. Within that ruling, the court primarily examined whether the tuna companies presented substantial evidence that the methylmercury in canned tuna is naturally occurring.
The trial court had examined several scientific studies and entertained expert witnesses from both sides to determine whether methylmercury in the oceans is the result of human activities or is naturally occurring. The trial court found the tuna companies’ experts to be more credible, and, therefore, ruled in their favor. The court of appeals agreed, concluding that there was substantial evidence supporting the trial court’s finding that mercury in tuna was naturally occurring, which exempted the tuna companies from Proposition 65’s warning requirements. The court affirmed the trial court’s ruling, noting that “when substantial evidence supports the trial court’s decision, as it does here, we have no power to substitute our own deductions or preferred set of facts.”2
Conclusion
Based on the court’s ruling that mercury in tuna is “naturally occurring,” canned tuna is exempt from California’s Proposition 65. However, the court noted that its ruling was limited to the substantial evidence issue and that “there are potential scenarios that could possibly lead to a renewed Proposition 65 claim against the Tuna Companies or similar companies that would survive res judicata and collateral estoppel challenges.”3
Endnotes
1. Available at http://www.fda.gov/Food/FoodSafety/ProducSpecificInformation/Seafood/Foodborne PathogensContaminants/Methylmercury/ucm115662.htm .
2. People ex rel. Brown v. Tri-Union Seafoods, LLC, 2009 Cal. App. LEXIS 309, *45 (Cal. App. 1st Dist. Mar. 11, 2009).
3 . Id. at *45.