Court of Appeal to Hear Proposition 65 Tuna Case

    In May, 2006, San Francisco Superior Court Judge Robert Dondero ruled against the Attorney General's office in its Proposition 65 enforcement action against the three primary sellers of canned tuna.  The AG had sought Proposition 65 warnings because of the presence of methylmercury in canned tuna.  Judge Dondero ruled that FDA warning requirements preempted state warning requirements for canned tuna, that most of the mercury was naturally occurring (so that no warning is required) and, according to news reports, that the amount of mercury was below the safe harbor levels.

    The AG has appealed, and the appeal will be argued tomorrow, January 27, before the Court of Appeal District 1, Div. 4, here in San Francisco.  In a letter to counsel dated January 5, the Court made the following request:

The court requests that counsel be prepared to address at oral argument the issue of whether substantial evidence supports the trial court's finding that methylmercury in tuna is "naturally occurring.

   

    My tea-leaf reading would suggest that this request is better for the tuna industry than for the AG.