Respondents are Tri-Union Seafoods, LLC, Del Monte Corporation and Bumble Bee Seafoods, LLC (the Tuna Companies).
This case has been consolidated with an earlier case filed by appellant Public Media Center. The Attorney General has taken the lead in this litigation. At his request, we have changed the caption to reflect that status, and for convenience refer to both appellants as the “State.”
Unless otherwise noted, all statutory references are to the Health and Safety Code.
A naturally occurring poisonous or deleterious substance “is an inherent natural constituent of a food and is not the result of environmental, agricultural, industrial, or other contamination.” (21 C.F.R. § 109.3(c).) An added poisonous or deleterious substance is one that is not naturally occurring. (Id., subd. (d).) A substance becomes an “added” poisonous or deleterious substance when it is increased to abnormal levels through intervening circumstances. (Ibid.)
Business and Professions Code section 17200 et seq.
A recent federal appeal decided to the contrary that the FDA had neither regulated the risk of methylmercury in tuna nor the permissible warnings regarding that risk, in a manner that conflicted with the plaintiff’s state tort lawsuit. (Fellner v. Tri-Union Seafoods, L.L.C. (3d Cir. 2008) 539 F.3d 237, 253.) There, the plaintiff was a consumer diagnosed with mercury poisoning who sued Tri-Union for damages, based on failure to warn of the risks of consuming its products. Fellner featured and discussed the preemption letter sent by Commissioner Crawford in this case, along with the 2004 Advisory and a compliance guideline, among other items. Tri-Union moved to dismiss on federal preemption grounds. At the company’s behest, the trial court took judicial notice of the above documents. Unlike the trial court in the instant case, the Fellner court determined that the FDA’s informal views on preemption as expressed in the commissioner’s letter were not persuasive and the circumstances of the letter suggested it merited a particularly low level of deference. In particular, the reviewing court pointed out that the letter did not purport to be the product of any agency proceeding, and expressed views that had never before been expressed by the agency in a most informal manner, namely a letter offering a legal theory for the California litigation. (Id. at pp. 250-251 & fn. 8.)
The court in Nicolle-Wagner upheld the naturally occurring regulation against a facial challenge. In the process it acknowledged that ballot arguments indicated that “Proposition 65 sought to regulate toxic substances which are deliberately added or put into the environment by human activity.” (Nicolle-Wagner v. Deukmejian, supra, 230 Cal.App.3d at p. 659, italics added.) In the court’s view the regulation was narrowly drawn, and took pains to define “ ‘naturally occurring’ ” in such a way as to preclude chemicals which are, in whole or part, the product of human activity. (Id. at p. 661.)
“Anthropogenic” means “of, relating to, or resulting from the influence of human beings on nature < ~ pollutants>.” (Webster’s Collegiate Dict. (10th ed. 2001) p. 49.)
According to the Oxford English Dictionary Online (), “methylate” means “[t]o introduce one or more methyl groups into (a compound or group).” (Draft rev. Dec. 2001.) “Methylation” in turn is described as “[t]he process of introducing one or more methyl groups into a compound; an instance of this.” (Draft rev. June 2008.)
The scientists’ main interest was in the thermocline layer. Very few have argued that mercury is methylated in the mixed layer. Methylmercury degrades rapidly in the mixed layer because it is exposed to sunlight. The deep ocean was not a strong contender because the impact of anthropogenic mercury in the deep ocean is “operatively negligible.”
Dr. Morel was critical of this work, explaining that the transfer of methylmercury from the coast to the open ocean would be inefficient. From what is known of the geochemistry of trace minerals in the ocean where no effect of coastal inputs to the middle of the ocean has been seen, Dr. Morel expressed that it seemed “absolutely impossible” that coastal methylmercury is the source of the chemical in the open ocean.
“Anoxic” means “greatly deficient in oxygen: oxygenless.” (Webster’s Collegiate Dict., supra, at p. 48.)
“Redox” reaction refers to an oxidation-reduction reaction. (Id. at p. 977.) “Oxidation-reduction” means “a chemical reaction in which one or more electrons are transferred from one atom or molecule to another.” (Id. at p. 830.)
The State grounds this argument in the testimony of its expert statistician, Dr. Sander Greenland.
A poster is a large sheet of paper displayed on a board that contains summaries of findings through a combination of text, figures and photographs. A poster is not a peer-reviewed document.
The State submitted the declaration of Dr. James Hurley, one of the co-chairs of the conference. He stated: “Individuals listed on the poster or any abstract submitted . . . are understood to be those who actively participated in the research and who support the statements on the poster or the abstract. Generally, the final ‘author’ on academically-based abstracts or posters is understood to be the supervising scientist if the abstract or poster is submitted by a student. While posters . . . are not peer-reviewed documents . . . , they are considered to be accurate representations of the views of the individuals who are listed as authors.”