The World Trade Organization’s (WTO’s) Appellate Body has affirmed an April 2015 ruling that U.S. tuna regulations discriminate against Mexico by requiring “dolphin-safe” labels reflecting the methods used to catch the fish that protect against capture of the mammal. In response to the appellate ruling, the United States criticized the decision as focusing on points that Mexico had not challenged and were merely “hypothetical” and an “academic exercise.” “Panels and the Appellate Body should not make their conception of the ‘perfect’ measure the enemy of all the possible good ones,” according to the U.S. statement provided during the meeting of the WTO Dispute Settlement Body on December 3, 2015. “In pursuing legitimate objectives, Members should not be held to the impossible standard of designing and applying a measure that corresponds exactly to the one that a panel or the Appellate Body would have designed to achieve the legitimate objective at…
Tag Archives tuna
A California consumer has filed a putative class action against Safeway Inc. alleging the grocery retailer’s tuna cans are under-filled by 10 to 20 percent based on federally mandated fill standards. Soto v. Safeway Inc., No. 15-5078 (N.D. Cal., filed November 5, 2015). The plaintiff contends that U.S. National Oceanic and Atmospheric Administration (NOAA) testing indicates Safeway’s 5-ounce tuna cans contain an average of 2.29 ounces of pressed cake tuna despite federal standards requiring cans of that size to contain at least 2.84 ounces of product. This result was consistent across 97.9 percent (94 of 96) of the tuna cans analyzed, according to the complaint. The plaintiff alleges breach of warranties, fraud, unjust enrichment, negligent misrepresentation and violations of California’s consumer protection statutes, and he seeks class certification, compensatory and punitive damages, an injunction and attorney’s fees. Issue 584
Bumble Bee Foods, Starkist Co. and Thai Union Frozen Products have been fixing tuna prices since 2011, according to a putative class action brought by Olean Wholesale Grocery Cooperative, Inc. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, No. 15-1714 (S.D. Cal., filed August 3, 2015). The complaint notes that while tuna consumption has fallen in the United States, prices have risen, which cannot be explained by raw material costs, the cooperative says. The complaint also details opportunities for the companies to meet and collude, such as industry conferences and various mergers and acquisitions within the “oligopolistic structure” of the industry. For claims of Sherman Act violations, the cooperative seeks to represent a nationwide class of those affected by the alleged price-fixing, court declarations of conspiracy, treble damages and an injunction from continuing any sort of agreement or understanding about maintaining prices. Issue 574
StarKist Co. and a class of consumers have filed a proposed settlement agreement for $12 million in a case alleging that the company underfilled its cans of tuna. Hendricks v. StarKist Co., No. 13-0729 (N.D. Cal., motion filed May 14, 2015). Under the agreement, StarKist will pay $8 million in $25 cash increments and provide $4 million in $50 vouchers for StarKist-branded products. The agreement indicates that “tens of millions of purchasers” are members of the class but predicts that “a claim rate of more than 5% will be difficult to achieve.” Thus, the amounts of the settlement allow for 80,000 voucher claims and 120,000 cash claims. “This is an excellent result for class members compared to their likely recovery should they prevail at trial,” the agreement stipulates. Issue 566
In its October 2014 issue, Consumer Reports will publish an analysis of the U.S. Food and Drug Administration’s (FDA’s) data that supported the agency’s recommendations for fish intake by pregnant women and children, released jointly as draft guidance with the U.S. Environmental Protection Agency (EPA) in June 2014. The magazine compiled a list of low-mercury—including haddock, trout, catfish, and crab—and lowest-mercury fish—including shrimp, tilapia, oysters, and wild and Alaska salmon—and detailed the amounts considered safe for consumption for young children and women of childbearing age. The guide includes more conservative advice than the draft guidance from FDA and EPA, such as recommending that most women and young children avoid marlin and orange roughy in addition to the listed swordfish, shark, king mackerel, and gulf tilefish. The magazine cites Deborah Rice, co-author of the EPA document that established the current limit on methylmercury consumption as 0.1 microgram per kilogram of body weight…
The U.S. Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA) have joined to issue draft guidance on mercury levels and fish consumption, directed at pregnant women and guardians of young children. Recommendations include eating 8 to 12 ounces (two to three servings) of low-mercury fish like tilapia, catfish, cod, salmon, and shrimp as well as avoiding four fish high in mercury (shark, swordfish, king mackerel, and tilefish from the Gulf of Mexico) and limiting albacore tuna intake to less than 6 ounces per week. The conclusion of the comment period has not yet been announced. More information on FDA’s updated guidance appears in Issue 525 of this Update. Issue 526
Researchers have apparently found levels of radiation “too small to be of realistic concern” from the Fukushima Daiichi nuclear meltdown in albacore tuna caught off the coasts of Washington and Oregon. Neville et al., “Trace Levels of Fukushima Disaster Radionuclides in East Pacific Albacore,” Environmental Science & Technology, April 2014. The study examined 26 Pacific albacore caught between 2008 and 2012 to compare radiation levels before and after the power station’s destruction in 2011. The researchers reported that levels of specific radioactive isotopes tripled in some of the fish caught after the disaster, but the levels present were still too small to have any noticeable effect on humans. “A year of eating albacore with these cesium traces is about the same dose of radiation as you get from spending 23 seconds in a stuffy basement from radon gas, or sleeping next to your spouse for 40 nights from the natural potassium-40…
Research presented at the Experimental Biology 2014 meeting has apparently confirmed the importance of dietary long-chain polyunsaturated fatty acids (PUFAs), concluding that lower intakes of eicosapentaenoic acid (EPA) and docosahexanoic acid (DHA) were predictive of cognitive decline. According to an April 27, 2014, press release, scientists with the U.S. Department of Agriculture’s Human Nutrition Research Center on Aging at Tufts University used food-frequency questionnaires to assess the consumption of omega-3 PUFAs among 895 study participants, who also completed cognitive testing over a two-year follow-up period. The results evidently showed that participants in the lowest four quintiles of EPA and DHA consumption showed more signs of cognitive decline than those in the highest quintile. “While more research is needed to determine whether intake of fatty fish such as salmon, tuna and trout can help prevent against cognitive decline, our preliminary data support previous research showing that intake of these types of…
A federal court in New York has refused to dismiss claims alleging that Bumble Bee Foods is strictly liable for and was negligent in failing to warn about the mercury in its products in a lawsuit alleging personal injury from excessive consumption of the company’s tuna products, which contain methylmercury. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (S.D.N.Y., order entered February 27, 2014). An earlier ruling in the case is summarized in Issue 413 of this Update. The plaintiff, who apparently consumed one to two cans of tuna daily for more than two years and was diagnosed with dangerously high levels of mercury in his body, also brought claims for breach of implied warranty of merchantability and violations of certain state statutory provisions involving agricultural and business law. The court found that the issues argued in Bumble Bee’s motion for summary judgment involved genuine issues of material fact that…
The National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) has published a final rule “to enhance the requirements for documentation to support labels on tuna products that represent the product as dolphin-safe.” According to NMFS, the rule “is intended to better ensure dolphin-safe labels comply with the requirements of the DPCIA [Dolphin Protection Consumer Identification Act] and to ensure that the United States satisfies its obligations as a member of the World Trade Organization (WTO).” Information about an adverse WTO ruling in a dispute with Mexico over U.S. dolphin-safe labeling provisions appears in Issue 424 of this Update. See Federal Register, July 9, 2013.
