Saturday, March 14, 2009

State court upholds tuna canners' exemptions

A state appeals court on Wednesday refused to reverse a 2006 court decision exempting tuna canners from California's toxic substances warning law.

The decision by a three-judge panel in the 1st District Court of Appeal in San Francisco is the latest setback in a five-year quest by the California Attorney General's Office to compel tuna companies to issue advisories about the health risks of tuna consumption at either the point of purchase, on product labels or through public education campaigns.

Under Proposition 65, the state can require public warnings where there's exposure to certain substances known to cause cancer or reproductive harm such as birth defects.

In 2004, then-Attorney General Bill Lockyer filed a lawsuit to require tuna canners to warn consumers about the health risks of methylmercury, a neurotoxin that tuna accumulates which can damage the nervous system, especially in utero or during the rapid growth of early childhood.

But in 2006, a San Francisco Superior Court judge ruled in favor of the defendants, the makers of Bumble Bee, Starkist and Chicken of the Sea.

Attorney General Jerry Brown's office said he's deciding if he'll appeal this latest decision with the California Supreme Court.

"We're disappointed in this ruling," said Scott Gerber, spokesman for the attorney general.

"The court recognized very clearly that methylmercury is a neurotoxin that can cause serious harm. We will examine the ruling Advertisementclosely and determine the appropriate next steps."

The National Fisheries Institute, an industry trade group, hailed the court's decision.

"Tuna is a safe, healthy product and one of the most inexpensive forms of protein. Attempts to depict it in any other light do a disservice," stated John Connelly, president of the institute.

In the 2006 trial, the judge ruled that a Food and Drug Administration advisory on mercury and fish consumption pre-empted the state from issuing its own warnings under Proposition 65. He also found that at least 95 percent of the mercury in the ocean-dwelling fish comes from natural sources, which are exempt from Proposition 65 rules.

The attorney general's office disputed both points during its appeal.