March 22, 2006
WARNINGS ABOUT MERCURY CONSUMPTION
By: Adam Wolkoff, Legislative Fellow
You asked which states require warnings about mercury consumption to be posted in stores selling seafood, and if there is pending federal legislation on this issue.
Based on a limited review of state legislation and a survey by the Center for Science in the Public Interest (CSPI), it appears that California is the only state that requires stores selling seafood to post warning signs about mercury consumption. However, this review covers only state legislation, and does not include all state regulations or local ordinances that may govern warning signs for stores selling seafood.
On the federal level, H.R. 4167, also known as the National Uniformity for Food Act of 2005, would preempt state laws concerning food safety and labeling. CSPI estimates that this bill would preempt approximately 200 state laws. The House of Representatives approved the bill on March 8, 2006. But the bill passed with an amendment that preserved the right of states to establish notification requirements regarding the presence of mercury in fish and shellfish (H.R. 4167 § 4).
CALIFORNIA'S PROPOSITION 65
Enacted as a ballot initiative in November 1986, Proposition 65 requires the Governor to publish, at least annually, a list of chemicals known to the state to cause cancer or reproductive toxicity. This list now includes about 750 chemicals, including mercury. Under Proposition 65, businesses must provide clear and reasonable warnings to consumers purchasing products containing these chemicals.
In June 2004, the attorney general of California sued a number of fish markets and grocers for failing to warn customers that canned and packaged tuna products were “exposing consumers to chemicals known to the State of California to cause cancer and reproductive harm.” Some of California's grocery chains have begun posting consumer warning signs for mercury in response to this lawsuit.
The Federal Department of Agriculture (FDA) opposes extending Proposition 65 to mercury warnings for fish, arguing that the Federal Food, Drug, and Cosmetic Act preempts state warnings. The FDA argues that this act gives it broad powers to regulate food labeling, and that it has only required labeling where there is clear evidence of a hazard to avoid overexposing consumers to warnings (letter to attorney general from the FDA commissioner, August 12, 2005, [www.cfsan.fda.gov])
OTHER STATE LAWS REQUIRING MERCURY ALERTS
Rhode Island and New Jersey require medical offices that provide gynecological, obstetrical or pediatric care to post mercury alert notices to warn women who expect to become pregnant, women who are pregnant or breastfeeding, and young children, of the danger of eating mercury contaminated fish (N.J. Stat. § 26:2-179; R.I. Stat. § 23-72-3).
Florida requires its Environmental Protection Department to post warning signs at areas with known mercury contamination and to distribute informational material at tackle shops and other places where fishing and hunting licenses are sold (Fla. Stat. § 403.7186(7)(a-b)).