Labeling Farmed Salmon

It's difficult for consumers to tell wild salmon from the farmed variety (previous blog here).  If farmed salmon is fed the krill and shrimp it would naturally consume, its meat will take on the typical pink, orange, and/or red hues of wild salmon.  The same is true if chemicals are added to the feed pellets.  Wild salmon often costs many times what farmed salmon does, and few people have palates discerning enough to taste the difference.  Little wonder the legal battles are escalating.

The California Supreme Court has agreed to decide whether supermarkets can sell farm-raised salmon without labels disclosing that the grayish fish have been fed chemicals to give their flesh the orange color of wild salmon.

Consumer lawsuits, filed in several counties in 2003 and 2004, were dismissed by lower courts on the grounds that labeling is regulated by federal law, which does not allow private suits. But the state's high court voted unanimously Wednesday to review the plaintiffs' appeal and determine whether consumers can sue under state law. A hearing will be scheduled at a later date.

State Attorney General Bill Lockyer's office filed arguments in support of the consumers' right to sue. "We argue that private parties and states have unfettered ability to enforce state law in state court,'' spokesman Tom Dresslar said. "States have traditionally had a role in the food safety and food labeling arena.''

But Rex Heinke, a lawyer for the supermarkets, said suits under state law would undermine the exclusive federal regulation of food labeling.

Here's a link to the decision that was appealed to the California Supreme Court.  The finding was that...

...Congress made clear its intention to preclude private enforcement of the FDCA (Food, Drug, and Cosmetic Act), that a state law private action based on an FDCA violation would frustrate the purpose of exclusive federal and state governmental prosecution of the act, and that section 337(a) impliedly preempts all of the plaintiffs' cause of action.  We therefore affirm the judgment without reaching or discussing the other grounds asserted by the defendants in support of their demurrer.

In other words, the Los Angeles County Superior Court only ruled on the issue of jurisdiction.  The plaintiffs maintain (amongst other things) that Congress never intended keep states from passing their own labeling laws, which citizens could then attempt to enforce.  Back to the article.   

After a similar suit was filed in Seattle in 2003, the nation's three largest supermarket chains, Safeway, Albertson's and Kroger, agreed to label their farm-raised salmon as artificially colored. But Steve Berman, a lawyer for the customers in both cases, said Thursday that court action was still needed to make the agreement binding.

"While the three major players voluntarily offered to accurately label fish, it doesn't mean they can't voluntarily reverse their decision, to the detriment of consumers,'' he said. "We think that all grocers, not just the major players, should be compelled to follow consumer laws.''

The California suits, consolidated in a Los Angeles court and proposed as a statewide class action, accuse major supermarkets of engaging in unfair trade practices and false advertising by failing to state on the labels that the salmon were artificially colored.

The plaintiffs claimed that the chains were violating federal and state labeling laws, both of which require food retailers to disclose artificial coloring. But in a ruling in June, a state appeals court said the basic regulations were contained in federal law.

The lawsuit notes that the artificially-colored salmon can deceive consumers into believing they're buying wild salmon.  It also notes that artificial coloring might present a health risk, so consumers have a right to know.  Some salmon farms use one part canthaxanthin to eight parts astaxanthin to give their salmon meat the color most consumers expect.  It's worth noting though that both of these organic pigments contribute to the coloration of wild Pacific salmon (but just astaxanthin for Atlantic salmon).  Some salmon farms use pigments extracted from natural sources (like algae, krill, etc.) while others use a synthetic product.   

The lawsuit however fails to address the point I mentioned earlier about how farmed salmon can be fed krill and/or shrimp, resulting in meat with wild coloration.  The practice is not rare because krill is an affordable feed source for some salmon farmers.  This demand is helping to drive the increasing harvesting of krill from the Southern Ocean, areas off the coast of Norway, etc. 

So if the labeling only focuses on artificial coloring instead of salmon farming in general, the potential for the product fooling consumers remains.  And regardless of the law, some folks won't label their products honestly.  But, this lawsuit is more about the states gaining the same privilege for food labeling that they have regarding environmental laws...the right to use federal standards or something more stringent.