A federal court in California has ordered Bumble Bee Foods, LLC to produce “documents dating back to 2004 regarding the marketing and labeling strategies for the products [plaintiff] purchased and for products with the same Omega-3 label or with nearly identical labels” in a putative nationwide consumer-fraud class action. Ogden v. Bumble Bee Foods, LLC, No. 12-1828 (N.D. Cal., order entered April 16, 2013). The named plaintiff seeks to represent class members who purchased products she did not buy and purchased a product made by a separate company that is not a defendant in the case. According to the court, the discovery dispute was about whether Bumble Bee “must produce discovery on all of its products . . . from eight years prior to the initiation of this lawsuit . . . [and involving] King Oscar.” The court determined that it was not appropriate to consider whether the named plaintiff has…
Tag Archives tuna
Golden Eagle Insurance Corp. has filed a complaint for declaratory relief against its insured Moon Marine (U.S.A.) Corp., requesting that the umbrella policy it issued to the insured be rescinded because Moon Marine allegedly concealed material facts when it obtained the policy. Golden Eagle Ins. Corp. v. Moon Marine (U.S.A.) Corp., No. 12-5438 (N.D. Cal., filed October 22, 2012). According to the complaint, Moon Marine knew that its imported yellowfin tuna (scrape) was linked to a nationwide Salmonella outbreak that sickened more than 400 individuals and had, in fact, recalled the product, when the $2-million excess insurance policy was obtained. The plaintiffs allege that Moon Marine failed to inform the insurance carrier’s underwriter that the fish importer faced “obvious liability exposure for bodily injury claims from the nationwide salmonella outbreak that had been linked to Moon Marines’ importation of Scrape.” The first lawsuit was actually filed two days before the plaintiffs quoted and bound…
The Mercury Policy Project (MPP) and a coalition of other consumer groups have released a report claiming that canned albacore tuna sold in U.S. schools may contain higher mercury levels than those reported by the Food and Drug Administration (FDA). Of the 59 canned tuna samples that MPP tested from this market sector, 48 were “light” tuna products representing six brands and 11 were “white” or albacore tuna products representing two brands. Although the report acknowledged that “the mercury content of these products is similar to what has been reported for supermarket canned tuna by other investigators and by [FDA],” it nevertheless alleged that the albacore tuna samples “averaged 0.560 µg/g, much higher than FDA’s reported average of .350 µg/g.” The results also purportedly indicated a high variably in mercury content across tuna samples, revealing, for example, that U.S-caught light tuna “had the lowest country-oforigin average mercury level, 0.086 µg/g,”…
The day after district attorneys for three California counties filed a lawsuit against tuna producers alleging that they make quantity misrepresentations “by failing to meet the standard of identity for canned tuna products seasoned or flavored with broth, as defined in the Code of Federal Regulations,” it was announced that a $3.3 million settlement had been reached. California v. Bumble Bee Foods, LLC, No. 12-11729 (Cal. Super. Ct., filed August 2, 2012). According to the San Diego County district attorney, a California Department of Food and Agriculture (CDFA) investigation discovered that the companies “failed to meet the required amount of tuna in cans packed with vegetable broth and added flavors.” Under the terms of the agreement and without admitting liability, each company will provide $300,000 in canned tuna to California food banks, and costs and penalties will be divided among the counties with each receiving $969,500. CDFA will be paid investigative…
The Office of the U.S. Trade Representative has announced that the United States will file an appeal in a dispute with Mexico before the World Trade Organization (WTO) over U.S. labeling provisions that allow producers meeting dolphin-safe requirements to label their products accordingly. One of the U.S. conditions challenged by Mexico provides that this label cannot be used if dolphins are purposefully chased and encircled to catch tuna. In September 2011, WTO handed Mexico a partial victory, finding that the U.S. measures were more trade-restrictive than necessary to achieve a legitimate objective. Additional information about the dispute appears in Issue 409 of this Update. According to a Trade Representative spokesperson, “Our dolphin-safe labeling measures for tuna products provide information for American consumers as they make food purchasing decisions for their families. Our decision to appeal the WTO ruling in this case demonstrates the commitment of the United States to our…
Granting the defendants’ motion to dismiss in part, a federal court in New York has allowed further proceedings on most of the claims filed by a man who alleged that consuming one to two cans of tuna daily for more than two years caused his mercury poisoning. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (S.D.N.Y., decided September 30, 2011). So ruling, the court agreed with the Third Circuit Court of Appeals that the Food and Drug Administration’s failure to adopt a regulation on the alleged risks of mercury in fish or warnings about that risk does not preclude the states from imposing a duty to warn. Additional information about that case appears in Issue 272 of this Update. According to his complaint, the plaintiff purchased and consumed 10 six-ounce cans of tuna fish each week from January 2006 to October 2008, at a time when the manufacturing defendant “promoted…
Concluding that “dolphin-safe” tuna product labels authorized by the U.S. Commerce Department “are more trade-restrictive than necessary to achieve a legitimate objective,” a World Trade Organization (WTO) panel has given a partial victory to Mexico, which filed a complaint in 2009 claiming that the labels were illegal because they excluded Mexican yellowfin tuna from the U.S. market and shut down one-third of its tuna fleet. The WTO panel rejected Mexico’s claim that the U.S. labeling provisions discriminate against its tuna products, finding “that Mexican tuna products are not afforded less favourable treatment than tuna products of the US and other origins in respect of the US dolphin safe labeling provisions on the basis of their origin.” Still, the panel recommended that the United States be asked “to bring its measures into conformity with its obligations” under the Technical Barriers to Trade agreement. Mexican Economy Secretary Bruno Ferrari reportedly responded to news…
A federal court in California has reportedly fined King Tuna $1.8 million for marking its products with a patent number despite not following the patented process in preparing its fish. King Tuna v. Anova Food, Inc., No. 07-07451 (C.D. Cal., decided February 24, 2011). The patent apparently related to pre-cooling filtered wood smoke before applying it to tuna. King Tuna sued a competitor alleging that the patent had been infringed; the competitor countersued claiming, among other matters, that King Tuna had falsely advertised and falsely marked its products. While most recent litigation involving the false-marking statute involves expired patents, this case apparently involved a valid patent. According to the court, King Tuna’s false advertising and marking “could not have been a mere innocent oversight,” because the company, while claiming that its preservation process involved filtered wood smoke, never pre-cooled the wood smoke “as required by the “619 patent.” To determine…
Describing the world’s tuna trade as “an awesome 21st century hunt,” Mahr’s article explores how “for some species of tuna, the chase is becoming unsustainable.” In 1950, she reports, about 600,000 tons of tuna were caught worldwide while in 2008, that number hit nearly 6 million tons. Particularly worrisome are the dwindling numbers of Atlantic bluefin tuna, which the World Wildlife Fund estimates could disappear in the Mediterranean as early as 2012, Mahr writes. She quotes a spokesperson for the Center for the Future of the Oceans at the Monterey Bay Aquarium in California as saying that Atlantic bluefin tuna has become “the poster child of overfishing worldwide” and that “the hunt is relentless. These are the wolves, grizzly bears, lions and tigers of the ocean. If you take the top predators out, the ecosystem begins to get out of balance.
A California appeals court has determined that canned tuna sold in the state does not need a mercury warning label under Proposition 65 (Prop. 65) for reproductive toxicity because the mercury is naturally occurring and thus falls within a Prop. 65 exemption. People ex rel. Brown v. Tri-Union Seafoods, LLC, No. A116792 (Cal. Ct. App., decided March 11, 2009). A trial court ruled in 2006 that the labels were not required because (i) federal law preempts state action on methylmercury in fish; (ii) the trace levels of mercury in canned tuna were too insignificant to require warnings; and (iii) the mercury is naturally occurring. Further information about that ruling appears in issue 170 of this Update. The appeals court specifically considered and based its ruling on the last basis for decision only, finding that substantial evidence supported the trial court’s determination as to the source of mercury contamination in fish.…
