The NewStandard ceased publishing on April 27, 2007.

Courts, Congress Threaten Protective Food Labels

by Megan Tady

Legal and legislative moves to standardize federal food warnings – or lack thereof – chip away at states’ prerogative to warn consumers about hazards posed by certain foods.

May 19, 2006 – A California judge’s recent ruling to ban the state’s placement of a mercury advisory for tuna on shelves next to the product comes as federal lawmakers consider a move to strip states’ rights to ensure food safety.

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San Francisco Superior Court Judge Robert L. Dondero’s ruling last week in favor of the tuna industry caps efforts by the federal government to force all state food regulations to match federal standards. Dondero ruled that the state’s tuna warnings are preempted by the US Food and Drug Administration’s less-visible methylmercury advisory.

At the very least, advocates are concerned that the ruling will set a precedent for other food-safety lawsuits currently pending in California.

State Attorney General Bill Lockyer sued the tuna companies Starkist, Chicken of the Sea and Bumble Bee in 2004, claiming Proposition 65 – the state law that forces companies to publicly disclose information about toxins in food products – mandates a shelf advisory that would take the FDA’s advisory verbatim to warn pre-pregnant, pregnant and nursing women, and children to limit their consumption of tuna. The FDA posts the warning on its website, but does not require tuna-sellers to show the warning on or next to products.

Dondero, however, said Proposition 65 didn’t apply to tuna warnings, agreeing with the tuna companies that methylmercury "naturally occurs" in tuna. Dondero cited a 1980 study conducted on rats in his decision that mercury levels in tuna are currently low enough that shelf advisories are not necessary.

Advocates are concerned that the ruling will set a precedent for other food-safety lawsuits currently pending in California.

"We’re not talking about not allowing the sale of canned tuna," said Herbert Gunther, director of the Public Media Center in San Francisco, which is the lead plaintiff in the case. "We’re saying, sell the product, but let the consumers make the decision themselves." The Public Media Center is a public and environmental advocacy group.

According to research, as well as the Environmental Protection Agency’s own website, ingesting methylmercury can lead to various problems in the human nervous system, including impacts on cognitive thinking, memory, attention, language, and fine-motor and visual-spatial skills.

The United States is one of the biggest consumers of tuna, devouring 31 percent of the world’s catch of the fish.

While health advocates are disappointed by the set-back for tuna-safety regulations, many also worry about the wider implications of the judge’s decision.

Currently, California courts are reviewing several similar cases, including lawsuits to force grocery stores to post mercury warnings at fish counters; to force nine manufacturers of potato chips and French fries to use labels warning consumers about the chemical acrylamide; and, to include lead warnings on some imported candy from Mexico.

Although Tom Dresslar, a spokesperson for the California attorney general, told The NewStandard that the Superior Court ruling would not set a precedent, others were not convinced.

“They want to restrict states from making restrictions that are higher than FDA, which effectively gives them free reign.”

"It does have us worried that the other cases won’t go through," Sharp said.

Most disturbing for advocates, however, is that the ruling is in keeping with legislation before Congress – the National Uniformity for Food Act – that would require standardization of all food warnings based on federal descriptions.

"It truly is part of a much more sweeping agenda," said Erik Olson, a senior attorney with the advocacy group Natural Resources Defense Council. "[Food companies and] their allies have been trying to eliminate states’ abilities to protect their citizens and basically trample on the ability of states to ensure food safety."

Critics point to a letter the FDA sent to Attorney General Lockyer arguing against Proposition 65 in 2004. The letter said that the warning labels would "frustrate the carefully considered federal approach to advising consumers of both the benefits and possible risks of eating fish and shellfish; accordingly, federal law preempts these Proposition 65 warnings concerning mercury and mercury compounds in tuna."

The federal Food Act was passed in the House 283–139 in December 2005 with 226 co-sponsors; it is currently under consideration in the Senate.

Olson says the Act gives the food industry the leeway they have been lobbying for.

"They want to restrict states from making restrictions that are higher than [those of the] FDA, which effectively gives them free reign," he said.

The Food Act would effectively require state regulations mirror their federal counterparts. States would be allowed limited means to petition the government for exemptions.

“Consumers have a right to know about harmful substances in the food they eat and the products they buy.”

Olson added one of the main problems with the proposed legislation is that the FDA does not have regulations on many food-safety and health issues, and that often federal standards are more lenient than some states’ regulations.

The FDA refused to give comments to TNS, but David Burney, president of the US Tuna Foundation, a trade association, said he was pleased that the state’s shelf advisory didn’t trump the FDA’s. "There’s no warning necessary because the product is safe."

According to the Congressional Budget Office, not only would the bill do away with California’s Proposition 65, it would also preempt over 200 existing state food-safety and labeling laws. Regulations on dairy, shellfish and lead, among others, would be changed to reflect federal standards.

Thirty-nine state attorneys general issued a joint statement against the act in March 2006. The Association of Food and Drug Officials and the National Association of State Departments of Agriculture have also expressed their opposition to the Food Act.

"Consumers have a right to know about harmful substances in the food they eat and the products they buy," Dresslar said. "It’s a pretty simple concept."

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The NewStandard ceased publishing on April 27, 2007.

This News Article originally appeared in the May 19, 2006 edition of The NewStandard.
Megan Tady is a staff journalist.

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