Metropolitan News-Enterprise


Thursday, December 14, 2006


Page 1


S.C. Agrees to Hear Artificially Colored Salmon Cases


By a MetNews Staff Writer


The California Supreme Court agreed yesterday to review a ruling that suits alleging grocery stores sold artificially colored farmed salmon without disclosing to consumers the artificial coloring were preempted by the Federal Food, Drug, and Cosmetic Act. 

The justices, at their weekly conference in San Francisco, agreed to review the ruling by Div. Three of this district’s Court of Appeal in Farmed Raised Salmon Cases, B182901.

The Court of Appeal upheld a ruling by Los Angeles Superior Court Judge Anthony J. Mohr, sustaining without leave to amend defendants’ demurrers to all of plaintiffs’ causes of action.

Artificial Coloring

Individual plaintiffs in Los Angeles, Alameda and Monterey counties filed suits alleging that fish farmers feed farmed salmon the chemicals canthaxanthin and astaxanthin to obtain a color of flesh resembling that of wild salmon. They alleged that the flesh of farmed salmon would appear grayish without the chemical additives and that consumers believe that the color of salmon is an indication of its origin, quality, freshness, flavor, and other characteristics.

Plaintiffs also claimed that concerns have been raised about the potential health risks of consuming the artificial coloring agents in particular and farm-raised salmon in general.

The plaintiffs further alleged that the FDCA and parallel state laws require food labeling to state that farmed salmon is artificially colored and that the defendants have failed to comply with those requirements. They allege that the failure to disclose the artificial color has caused consumers to believe that farmed salmon is wild salmon.

The complaint contained causes of action for unfair and unlawful business acts and practices in violation of California’s Unfair Competition Law unfair or deceptive trade practices under the Consumers Legal Remedies Act false and misleading advertising and negligent misrepresentation.

After Mohr sustained defendants’ demurrers, plaintiff’s appealed, contending that their claims were not explicitly or impliedly preempted by the FDCA. But the Court of Appeal agreed with Mohr.

Justice H. Walter Croskey, writing for the court, noted that the FDCA prohibits, among other things, the misbranding of food in interstate commerce. A food is considered misbranded, he noted, if “its labeling is false or misleading in any particular” or “it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact . . .”

Federal Preemption

He also noted that the FDCA provides that proceedings to enforce its provisions or to restrain a violation must be commenced by and in the name of the United States, except that a state may commence a proceeding for the civil enforcement of, or to restrain a violation of, certain provisions after giving notice to the federal government.

Croskey said:

“We conclude that in section 337(a) Congress made clear its intention to preclude private enforcement of the FDCA, that a state law private right of action based on an FDCA violation would frustrate the purposes of exclusive federal and state governmental prosecution of the act, and that section 337(a) impliedly preempts all of the plaintiffs’ causes of action.”

Presiding Justice Joan D. Klein and Justice Richard D. Aldrich concurred in Croskey’s opinion.


Copyright 2006, Metropolitan News Company