Although California is teetering on the edge of complete financial collapse, it has managed in recent years to fritter away countless millions of taxpayer dollars fighting in vain to re-brand fish as a poison, complete with its own warning labels. (There was a time when we might have expected more from a state with a robust fishing industry. Apparently the times are a-changing.) Yesterday a three-judge panel heard oral arguments in the latest episode of this tragicomedy: an appeal of the thrashing the state took at the hands of a trial judge in 2006. And we were there.
California Deputy Attorney General Sue Fiering argued for the scientifically challenged. Fiering quibbled with the fact that at least 95 percent of those tiny mercury traces in canned tuna are naturally occurring. (That number, a Princeton scientist testified in 2006, may actually be 100 percent.) In the 2006 trial, witnesses presented extensive and persuasive evidence to support this conclusion. But naturally occurring chemicals are excused from the warning labels that Fiering wants to see on tuna cans. Regulating mercury in fish, it turns out, is much more complicated than cautioning about lead in paint.
Prodded by a few questions from presiding judge Ignazio Ruvolo, Fiering conceded that the “95 percent” number might be accurate. But she insisted that warning labels should still be required under California’s “Proposition 65” law—and she would be right, if the court were to abandon one of the most basic concepts of food toxicology.
Fiering wants the Appeals Court to throw out the 2006 ruling because the judge used a time-weighted “average” to figure out how much mercury a typical female canned-tuna consumer is exposed to in California. This “averaging” means, for instance, that if a woman were to eat five cans of tuna during a given month, her exposure would be averaged over that entire month.
But in the upside-down world that is the California Deputy Attorney General’s office, mercury exposure should only be calculated on the days when canned tuna is eaten. And any averaging shouldn’t extend out any further than 24 hours—which doesn’t really create an “average” at all.
Under Fiering’s logic, a woman who eats one can of tuna in a month would register the same daily exposure as a woman who eats a can every day during the same month. (Her method creates the illusion of a higher average.) This sort of inaccurate result is why toxicologists average consumption over longer periods of time—which is exactly what the trial judge did.
If this crucial bit of common sense were to be ignored, the resulting “daily average” for mercury in canned tuna could actually be enough to trigger a warning-label requirement. This, apparently, is the sort of bogus technicality that overeager litigators love.
In an embarrassing moment for the state, the tuna companies’ lawyer reminded the judges that during the first trial, he had asked a scientist with California’s Office of Environmental Health Hazard Assessment (OEHHA, which administers Proposition 65) about this very issue of statistical malpractice. That scientist testified that OEHHA itself expresses its consumer advice about chemicals in terms of monthly intake, and that its analysis generally “depends on extended periods of time.”
The 2006 legal decision that triggered yesterday’s appeal was full of drama. We had the testimony of a former EPA toxicologist called “misleading,” “unreliable,” and “biased” by the court. We saw a former Secretary of Health and Human Services testify that exaggerating the risks from traces of mercury “could have adverse health consequences.” We were even treated to an exploration of why the EPA knows more about mercury in whale meat than it does about the fish Americans buy at their supermarkets.
But the state of California is not about to let total defeat get in the way of a good fight. Sue Fiering is still feeding her talking points to the press. Fortunately, reporters are starting to see both sides of this debate. Take this morning’s San Jose Mercury News for instance:
[T]he director of research for the Center for Consumer Freedom said that “the original outcome of this case was a huge victory for consumers,” avoiding a “skull-and-crossbones” treatment of fish, which contain omega-3 fatty acids, a nutrient offering numerous health benefits.
We filmed interviews yesterday with NBC-TV11 and CBS-TV5 in San Francisco. And on KRCB public radio in Sonoma County, we had ample time to make the case that fish is a health food—and that fear of fish (not fish itself) is creating health risks. (Click here and then click here to listen to both parts of our interview.)