Farm-raised salmon shows its true color
October 19, 2006
I love salmon ” wild is best but farm-raised will do. Not everyone agrees.
Several individuals filed lawsuits in federal court in March 2000 alleging that fish farmers feed farmed salmon the chemicals canthaxanthin and astaxanthin to obtain a color of flesh resembling that of wild salmon.
The suits, coordinated as the Farm Raised Salmon Cases, allege that farmed salmon would appear grayish without the chemical additives, and that consumers believe that the pink color of salmon is an indication it is wild. They also claim there are health risks of consuming the artificial coloring.
The lawsuits, brought against grocery stores, contend that the failure to disclose the artificial color of farmed salmon is a violation of a whole stack of California laws: unfair competition; the Consumers Legal Remedies Act; false advertising; negligent misrepresentation; unfair and deceptive trade practices; California’s Sherman Food, Drug and Cosmetic Law; the Health and Safety Code; and the Penal Code. Plus the federal Food, Drug and Cosmetic Act (FDCA).
The California Sherman Act, the Health and Safety Code, and the federal FDCA, require labeling disclosures if any food product includes artificial coloring or preservatives.
So at first glance it would seem as though the plaintiffs will prevail under California and federal law as the farm-raised salmon labeling doesn’t mention artificial coloring or the use of feed that includes colorizing chemicals.
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Under state and federal law, fish are “misbranded” and in violation of food labeling regulations unless the artificial coloring is disclosed. End of case, right?
Unfortunately for these plaintiffs, the federal Food, Drug and Cosmetic Act pre-empts the area of law governing misbranding of food in interstate commerce, which means the FDCA controls-and trumps state laws. State laws requiring labeling of artificial food coloring are inapplicable. Strike one.
And while the federal FDCA requires disclosure of artificial coloring of food, the FDCA expressly states that only the federal government may enforce the law. Private enforcement of the FDCA is precluded. Strike two.
So get used to pink salmon ” wild and farm-raised ” at least until the federal government chooses to enforce the Federal Food, Drug and Cosmetic Act and to require labeling of the artificial coloring of farm-raised salmon.
Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. Reach him at firstname.lastname@example.org or http://www.portersimon.com.–