29 November 2007

The California Supreme Court will hear consumers' complaint that grocery chains aren't obeying the law on labeling.

By John Spano

What could unite such fierce competitors as Bristol Farms, Costco, Safeway, Albertsons, Whole Foods Market and Trader Joe's? A group of fish-eating consumers who want to know whether the salmon in the stores' display cases is wild or farmed.

The grocery giants have formed an unlikely alliance to fight a legal bid by 11 consumers who contend that California markets have failed to clearly distinguish salmon caught in the wild from its farm-raised cousin, which is injected with red dye to appear more palatable. It's a claim grocers deny.

"I'm very concerned about what I put into my body," said Jennifer Kanter, a 32-year-old Venice sales professional who is one of those who filed the lawsuit.

Though federal and state laws require suppliers to clearly label salmon containing dye, officials from the Food and Drug Administration and the California Department of Public Health acknowledge that because of limited resources, they don't actively enforce the rule. The consumers contend they should be able to sue the markets to ensure better labeling of salmon when federal and state regulators fail to do so.

The California Supreme Court has scheduled arguments for next week.

Salmon is big business. It is a food recommended by the American Heart Assn., and consumption of it has quintupled in 16 years. Much of the demand is met by the farm-raised variety.

Critics say salmon farming poses environmental and health concerns. The fish are raised in nets in bays and inlets; excess fish meal and waste from the fish cause pollution. The meal, which is used to fatten the salmon, contains small amounts of dioxin and other harmful chemicals, according to a study cited by the plaintiffs. The fish waste harms the ocean's ecosystem, scientists say.

In a study last year, a consumer advocacy group tested salmon advertised as wild in markets in the Northeast and found that about half contained dye without labels disclosing the fact.

"People were paying a premium for wild salmon, and we're not getting it," said Nancy Metcalf, author of the survey for Consumers Union.

No such studies have been done in California, she said.

Kanter grew up in Seattle, where she fished for salmon. It wasn't until she moved to Los Angeles five years ago that she learned that some of the fish in markets was actually farm-raised.

"I didn't know you could have anything but wild-caught salmon. I had never seen [it] before," she said. "I just knew that it wasn't what I was used to. It's gray."

Concerned that the labeling rule wasn't being enforced, Kanter and others went to court three years ago contending that they should have the right to demand that information from suppliers when authorities fail to do so.

Federal law requires that packaging clearly identify dyed fish with such words as "artificial color," "artificial color added" or "color added." California has an identical disclosure requirement. Many grocers declined to comment, but others said California markets have long honored the rule.

The original lawsuit, which seeks unspecified damages and class-action status, alleges that consumers bought unlabeled dyed salmon that was sold by "the nation's largest and most sophisticated grocery chains." The argument was rejected by lower courts and is now before the California Supreme Court.

Rex S. Heinke, attorney for Kroger (parent of Ralphs), Safeway and Albertsons, said the job of enforcing the labeling rule is up to federal regulators, not consumers.

"Congress wanted uniform enforcement of these laws nationwide. We don't dispute that if the state government jumps through the right procedural hoops, they can enforce the law too, if the federal government doesn't object," Heinke said. "But nowhere is there any mention of consumers enforcing."

Craig R. Spiegel, a lawyer for the consumers, said the implications of the suit "go way beyond the facts of this case."

"The holding is not limited in any way to food coloring," he said. "The decision says whenever conduct violates both state and federal law, consumers cannot go to court to enforce the regulations."

The suit has the backing of a dozen prosecutors, California Atty. Gen. Jerry Brown and Los Angeles City Atty. Rocky Delgadillo.

According to papers filed by Kamala Harris, San Francisco County's district attorney, if California's justices don't intervene, the lower court rulings will "destroy local civil law enforcement action safeguarding the public against unlawful and deceptive practices in the sale of food and other products."

Brown's office argued that the decision, if allowed to stand, will hamper "the ability of law enforcement agencies to address the deceptive labeling of all food products."

Kanter says her goal is simply to help people "know exactly what they're buying."

Source:  Los Angeles Times

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