May It Please The Court

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Courts Rule It's Not Nice For Mother Nature To Fool Proposition 65

Proposition 65 is that twigs, nuts, fruits and berries statute out here on the Left Coast that warns consumers that just about everything in existence contains chemicals known to the State of California to cause cancer, birth defects and reproductive harm.  At least in California, that is.  The other 49 states don't give warnings to their citizens; presumably they just know.

Many businesses call it a bounty-hunter statute.  At least one law firm lost its license to practice law because it filed too many of these lawsuits.  To top it off, one appellate court awarded a plaintiffs' firm $1.98 instead of the several tens of thousands it wanted in attorneys fees. 

Can you tell not everyone thinks the statute is a good idea?

There are a number of attorneys, however, who have campaigned to eliminate toluene from nail polish, lead from soda bottles and formaldehyde from schools.  In fact, I stopped eating shark and swordfish given the mercury warnings on restaurant menus. That chemical should be in thermometers, not in fish. 

There are many Californians who believe Prop 65 has made the state a safer place to live, even though there are no warnings for earthquakes.  But I'm off-topic.

Still, tuna contains a chemical known as methylmercury in amounts that occur naturally in the environment, not as a result of pollution.  It's just part of the fish.  Unfortunately, however, methylmercury occurs in tuna in amounts that are higher than the state's threshold limit.  Fortunately or unfortunately - I don't know which - when you apply the Prop 65 statute, you have to deduct the level of naturally occurring methylmercury from the amount found in the tuna, and when you do, the amount left is not higher than the threshold limit.  The consequence of this mathematics means that the purveyor of the tuna does not have warn consumers that the tuna violates Prop 65.

The state didn't like that outcome and filed suit against the purveyor, in a case entitled People v. Tri-Union Seafoods, LLC, who fought the lawsuit using the facts and arguments I described in the last paragraph.  The trial court agreed with the Seafood company, and so did the appellate court. 

So, if Mother Nature puts chemicals in food that are known to the State of California to cause cancer, birth defects and reproductive harm, you may never know it if Mother Nature intended it that way.  At least according to California courts.

We'll be just as well-preserved as Egyptian mummies just from the food.  No chemicals or preservatives added. 

Posted by J. Craig Williams on Thursday, March 12, 2009 at 21:14 Comments (0)


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