California Sues Tuna Canners

June 21, 2004
California is suing the nation's three largest canned tuna companies for failing to warn consumers that albacore and light tuna contain mercury, known to cause reproductive harm and cancer.

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"This is a crucial public health issue," said California Attorney General Bill Lockyer. "Prenatal exposure to mercury can cause serious disabilities in infants and children. We're not trying to eliminate tuna from people's diets. We're trying to enforce the law and protect the health and safety of California women and children."

The defendants in the lawsuit include: Tri-Union Seafoods, maker of Chicken of the Sea; Del Monte, maker of Starkist; and Bumble Bee Seafoods, maker of Bumble Bee. Filed in San Francisco Superior Court, Lockyer's complaint alleges the companies have violated Proposition 65, a landmark ballot initiative enacted by voters in 1986. The law requires businesses to provide "clear and reasonable" warnings before exposing people to known carcinogens or reproductive toxins.

Methylmercury compounds have been listed under Proposition 65 as a chemical known to cause cancer since 1996, and methylmercury has been listed as a known reproductive toxin since 1987. Mercury and mercury compounds have been listed as known reproductive toxins since 1990. By failing to warn consumers about the mercury in their products, the defendants have violated Proposition 65, Lockyer's complaint alleges.

Testing conducted by Lockyer's office showed the mercury levels in both canned albacore and light tuna exceed the exposure threshold that triggers the Proposition 65 warning requirement. The same testing showed canned albacore contains significantly higher amounts of mercury than canned light.

The lawsuit asks the court to prohibit the companies from selling their tuna in California without providing a warning as required by Proposition 65. Potential alternatives for adequate warnings include signs posted in grocery aisles or labels placed on cans. Additionally, the complaint seeks civil penalties for violations of Proposition 65 and the state's Unfair Competition Law.

Under both laws, each defendant is liable for civil penalties of up to $2,500 per day for each violation. The complaint covers the defendants' alleged Proposition 65 violations dating back to 2000.

Excessive exposure to mercury poses serious health risks to all people, but particularly pregnant women and children. Prenatal and infant exposure can cause mental retardation, cerebral palsy, deafness, blindness, and developmental and learning disabilities.

A 2000 study by the National Research Council estimated 60,000 children born annually in the United States could suffer neurological problems caused by prenatal mercury exposure. A 2004 report presented to the U.S. Environmental Protection Agency (EPA) found that, every year, as many as 600,000 newborns may be at increased risk of health damage caused by mercury exposure.

Fish and seafood are important sources of nutrients and can be key components of a balanced diet. However, public concern increasingly has focused on fish, including canned tuna, as a source of mercury exposure.

In March 2004, after conducting testing, the EPA and U.S. Food and Drug Administration (FDA) issued a joint notice that advised pregnant and nursing women, women who may become pregnant and young children to limit their consumption of canned albacore tuna to six ounces per week. That amount is equal to one average meal. The EPA-FDA advisory said the same groups should eat no more than 12 ounces (two average meals) of canned light tuna and other fish that are lower in mercury.

Lockyer last year filed Proposition 65 lawsuits against major grocery and restaurant chains for failing to post warnings about mercury in fresh or frozen shark, swordfish and tuna. Those cases remain pending, and have been coordinated in San Francisco Superior Court.

While that litigation is pending, some of the defendant grocers and restaurants have posted an interim warning that advises pregnant and nursing women, women who may become pregnant and young children to not eat swordfish or shark, and to limit their consumption of fresh or frozen tuna.

The interim warning – developed by Lockyer's office – also mentions canned tuna, saying in part that canned light contains less mercury than albacore. Lockyer believes Proposition 65 requires more explicit advice to consumers about canned tuna. Additionally, grocers post the interim warning at fresh fish counters, where canned tuna consumers will not see it.

A private party, the Public Media Center, previously filed a Proposition 65 lawsuit against canned tuna companies. That case also is pending in San Francisco Superior Court. Lockyer will ask the court to consolidate his action with the private lawsuit, so they can be tried jointly.

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