On March 12, 2009, the California Court of Appeal, First Appellate District (Court of Appeal), affirmed a trial court victory for Tri-Union Seafoods, LLC, Del Monte Corporation, and Bumble Bee Seafoods, LLC (collectively, Tuna Companies). See The People ex rel. Edmund G. Brown, Jr. v. Tri-Union Seafoods, LLC, et al., A116792 (March 12, 2009). The Court of Appeal found that the State of California (State) was not entitled to any relief requested for the Tuna Companies’ failure to provide Proposition 65 (Prop 65) warnings on their tuna products. However, because of the limited scope of the decision, the food industry should not view this ruling as indicative that future Prop 65 challenges based on the “naturally occurring” exemption will have a similar outcome.
The trial court had ruled that the State was not entitled to any relief based on three separate grounds:
- Prop 65, as applied to the Tuna Companies, was preempted because it conflicts with federal law
- The amount of methylmercury in canned tuna does not rise to the threshold level that would trigger the warning requirement for the chemical
- Virtually all methylmercury is “naturally occurring” and, under the governing regulations, does not count toward the threshold exposure
However, the Court of Appeal explicitly affirmed this judgment on the narrow ground that substantial evidence supported the trial court’s finding that methylmercury in tuna is naturally occurring, thereby removing the Tuna Companies from the reach of Prop 65.
Background
In 2004, the State sued the Tuna Companies for injunctive relief and penalties asserting, among other things, violations of Prop 65 based on an allegation that the Tuna Companies distribute and sell canned tuna products in California without providing a clear and reasonable warning that the products contain methylmercury, a chemical known to the State to cause reproductive harm. The trial court found for the Tuna Companies, and the State appealed the trial court’s judgment.
As stated above, the Court of Appeal limited its review to the issue of whether substantial evidence supported the trial court’s finding that methylmercury is naturally occurring in canned tuna. After reviewing the evidence that was presented at trial, the statement of decision, and the record, the Court of Appeal held that it “cannot say that there is no substantial evidence to support the trial court’s conclusion, under the preponderance of the evidence standard, that methylmercury in tuna is naturally occurring.” The Court of Appeal stated that the experts on both sides were credible, but that the trial court had sided with the Tuna Companies’ experts and in explaining its reasoning, found them more credible and afforded their testimony greater weight than it afforded that of the State’s experts.
Potential Implications for the Food Industry
The ruling by the Court of Appeal in this case could have implications for the food industry in future Prop 65 lawsuits related to required warning statements for food products. Under California law, any food product that contains a substance included on the Prop 65 list of carcinogens must bear warning labeling unless it can be demonstrated that the food falls within one of the exceptions to the Prop 65 warning requirements, e.g., that the substance is naturally occurring within the food. California courts have typically construed these exceptions as affirmative defenses for which the regulated industry bears the burden of proof.
Despite the Court of Appeal ruling in favor of the Tuna Companies, this decision does not have the effect of judicially broadening the naturally occurring exemption. Rather, this ruling suggests that California courts continue to disfavor the exemptions that limit the requirement for food manufacturers to provide consumers with Prop 65 warning statements. Notably, the Court of Appeal clarified the scope of its ruling by explicitly providing that its judgment is “conclusive only as to the substantial evidence determination on the naturally occurring issue.” Notwithstanding the Court of Appeal’s affirmance that substantial evidence supported the trial court’s finding that methylmercury in tuna is naturally occurring, the Court of Appeal cautioned that “findings based on scientific inquiry and research can easily become dated and outmoded” and “there are potential scenarios that could lead to a renewed Proposition 65 claim against the Tuna Companies that would survive res judicata and collateral estoppel challenges”. Accordingly, the food industry should not view the Court of Appeal ruling as indicative that future Prop 65 challenges by the regulated industry based on the naturally occurring exemption will have a similar outcome.
Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our food industry clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals:
Michael D. Flanagan
Milwaukee, Wisconsin
414.297.5834
[email protected]
Sarah A. Key
Washington, D.C.
202.295.4720
[email protected]
