Proposition 65 Could CostYou Big Bucksby Robert Rheault,ECSGA Executive DirectorIf you sell products to California, you shouldbe aware of Proposition 65 1 , a law requiringthe labeling of products listed by the state ascausing cancer, birth defects or other reproductiveharm. A few fishery products have trippedCalifornia’s strict limits on cadmium and lead,resulting in eye-popping fines and settlements.Proposition 65 was a ballot initiative voted intolaw in 1986. The California Office of EnvironmentalHealth Hazard Assessment (OEHHA) 2now mandates that if a product (or the packagingit is shipped in) might contain certainchemicals, the package must have a labeldescribing what the chemical risk is and how itmight impact consumers' health.Every year the list of chemicals 3 grows—it nowincludes over 900 potential toxins and carcinogens.Because it is California, the state decidedthat the federal limits on many of the substancesare too lenient, and established much moreAdvocates and Counselors RepresentingShellfish Growers Since 1999SAMUEL W. “BILLY” PLAUCHÉbilly@plauchecarr.comMEGAN K. TERRELLmegan@plauchecarr.comwww.plauchecarr.comPacific Northwest Office1218 3rd Ave., Ste. 2000Seattle, WA 98101206.588.4188Gulf Coast Office1110 River Rd. S., Ste. 200Baton Rouge, LA 70802225.256.4028stringent limits forproducts sold inCalifornia.Take cadmium forexample, a heavymetal found insoils and watersall over the world.In some placescadmium levelsare naturally high, and certain shellfish can accumulateenough that some regulators startedto have concerns. According to Prop 65, a sellermight be able to win a lawsuit by showingthat the presence of the metal is the result ofnaturally occurring contamination as opposedto a human (anthropogenic) pollution or foodadditive, but it could be a heavy lift. New Zealandis trying this argument after being cited forcadmium in their green-lipped mussels, but itis likely to cost them more to prove their casethan they would end up paying in a settlement.In 2019 companies paid $30 million to resolve2,410 claims (909 settlements) with the averagesettlement coming in at around $35,000. Forthe seafood industry most of the claims havebeen for lead and chromium found in cookedsquid and shellfishproductsfrom Asia orNew Zealand,but I did hear ofone West Coastfirm that wasnailed with a$50,000 settlementfor cadmiumin smoked shellfish. One of the scarierelements of the law is that private attorneys caninitiate legal action and take 25 percent of thesettlement, so it is a proven money maker forcertain types of ambulance-chasing lawyers.The literature on most of the substances is dizzyinglycomplex. You can find EnvironmentalProtection Agency (EPA) regulatory limits 4 forsome contaminants in some foods, but shellfishare regulated by the Food and Drug Administration(FDA). It's often the case that differentregulatory limits are cited by the FDA, theEPA and the WHO-FAO Codex Alimentarius 5 .Then for shellfish we have Alert levels, whichhave no public health significance, but are justone standard deviation above the mean and tellregulators they need to be aware there may becontamination in a particular harvest area ifthe levels are tripped. We have Alert levelsof iron, copper and zinc, (all of which are inmy daily multi-vitamin) as well as mercury,arsenic, chromium and cadmium. Then thereare Action levels that have been establishedby the EPA for drinking water.To comply with the Codex limit on cadmium,shellfish meats must contain less than2 ppm (or a tolerable monthly intake below25 µg/kg of body weight.) The FDA saysthe limit for cadmium in shellfish is 4 ppm.California presents their Prop 65limits as daily consumption limits,which for cadmium should bebelow 4.1µg/day. Depending onhow much you think people mighteat you are probably ok, but howmuch can you afford to spend ontesting? Thankfully, an East CoastShellfish Research Institute studyconducted by Dale Leavitt in2009 found that the levels of lead,cadmium and mercury in clamsand oysters from up and down theEast Coast were well below thelevels that should cause concern,unless they were harvested neara superfund site, metals-platingfacility or Navy base.Then there are the labeling requirements.It's bad enough tohave to put a label on your productssaying it could cause canceror birth defects, but I have notbeen able to get a clear answeron what is required. Firms willsell you generic labels, but someelements of the regulation seem toindicate that you have to explainwhich substances are potentially— Continued on page 13Page 8 ECSGA Newsletter Issue 3 August 2021
ECSGA Newsletter Issue 3 August 2021 Page 9
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