Disclosing the Potentially Dangerous Dyes that Make Gray Salmon Pink:
The California Supreme Court Holds that Actions to Enforce the State's Food Labeling Law Are Not Preempted by Federal Law


Monday, Feb. 18, 2008

Recently, the California Supreme Court issued a significant ruling in the Farm Raised Salmon Cases. The plaintiffs had sued several grocery stores under California consumer-protection laws for selling farm-raised salmon without labeling the salmon to disclose that color had been added. The California Court of Appeal had previously held that federal law preempted private causes of action to enforce state food labeling requirements, and therefore dismissed the suit. However, the California Supreme Court reversed, holding that the federal Food, Drug, and Cosmetic Act (FDCA) does not preempt state food labeling laws that have requirements that are identical to the FDCA requirements.

Accordingly, the suit will go forward, and may potentially lead to the mandatory disclosure of the artificial colorants that make salmon pink. In this column, I'll discuss both why it is a good idea to mandate a label disclosing the colorants, and why the Court ruled as it did.

Color-Added Labeling for Salmon

The SalmoFan - mentioned in the Court's opinion -- is like a color wheel or set of paint chips. It allows the salmon farmer to add the right amount of colorant to get the desired pinkness in the finished salmon. Currently, it is my favorite office toy. However, the SalmoFan also has a chilling significance, as it is a tangible invitation to fish farmers to add to the fish a certain amount of a potentially dangerous chemical.

Wild salmon, as everyone knows, are orangish pink on the inside. What most people do not know, however, is that salmon are pink because of what they eat. Salmon are carnivorous fish that dine on krill, tiny shrimp-like crustaceans that contain carotenoids, naturally-occurring orange pigments.

Farm-raised salmon, on the other hand, eat feed that is made of other fish. Consequently, unless color is added to their food, farmed salmon do not turn out orange, but rather a less appetizing light grayish color. Studies have shown that consumers are willing to pay more for darker-colored salmon. Thus, although adding color to salmon feed is expensive, salmon farmers find it worthwhile.

One of the artificial colorants added to fish feed, cantaxanthin, has been linked to retinal damage when taken orally to simulate a suntan color in people's skin. Nevertheless, the FDA has approved both cantaxanthin and the more expensive astaxanthin for use in fish feed, and has approved cantaxanthin for use in human foods as well. However, the federal FDCA requires that food labels show that color has been added, and this rule applies specifically to salmon that has been fed artificial colorants.

When consumers know that color has been added to farmed salmon, they are less willing to pay for the darkest fish, although most consumers still prefer medium pink rather than paler colors. But most consumers do not know that farmed salmon eat food that contains artificial colors. Indeed, even the self-selected "foodies" in my Food Law and Policy Seminar were surprised to learn that farm-raised salmon need to eat artificial color to be orangish pink.

The Potential Environmental Effects of Salmon Farming on Salmon Migration

Another reason consumers might be interested in making an informed choice between farmed and wild salmon is that salmon farming can endanger native salmon species. Salmon is an anadramous fish, which means that it lives its adult life in salt water, then returns to freshwater streams to spawn and die. In the spring, the eggs hatch, and the little fish (called "fry," but not worth frying) start to grow and make their way out to the ocean. The adults never see their offspring.

This is a fine system for salmon. Blood-sucking sea lice often attach themselves to adult salmon, but the tiny parasites are not a big deal on a big fish. Moreover, sea lice can't live in fresh water, so they die off when the salmon go upstream to spawn. By the time the fry make it out to the ocean, they are big enough to withstand occasional sea lice, and the really small fish never encounter large numbers of sea lice.

However, when salmon farms are located near salmon migration routes, the large numbers of adult fish swimming close together mean that sea lice infestations are inevitable. The problem that has made headlines recently is that small fish swimming out to sea encounter large numbers of sea lice on the way out. The fry, which can't withstand large numbers of lice, never make it to adulthood. In some areas, this means that natural populations are declining in the face of salmon farming. Interestingly, the California Supreme Court's decision may indirectly help rectify this situation somewhat if labeling causes more consumers to choose wild salmon over farmed salmon, thus decreasing the viability of salmon farming and the negative effect on migration.

Why the California Supreme Court Ruled As It Did

As noted above, the question for the California Supreme Court was whether or not private causes of action under state consumer protection statutes were preempted by the federal FDCA. To decide the issue, the Court looked carefully at both statutory schemes.

Notably, if the plaintiffs had not been able to sue under California law, they would not have been able to sue at all. Under the FDCA, enforcement actions can only be brought by the government. However, under California's consumer protection laws, consumers can sue directly, alleging noncompliance with the state's food labeling law, the Sherman Law.

The FDCA explicitly prohibits state food labeling laws that are not identical to the FDCA's own labeling provisions. The relevant U.S. Code section implicitly recognizes the need for states to participate in ensuring a safe food supply and in preventing economic fraud.

The California Supreme Court thus reasoned that by implication, the FDCA permits state laws that are identical to the FDCA in this respect -- including California's Sherman Law, which, with respect to color additives, simply adopts "the regulations and amendments adopted pursuant to the [FDCA as] the color additive regulations in California."

Whether or not states should be able to impose regulations that go beyond federal protections is thus not the issue here. Recognizing that there was no genuine reason for pre-emption, and that the federal statute anticipated state enforcement of standards that paralleled those of the FDCA, the California Supreme Court reached the right result.

The California Supreme Court Will Both Allow the FDA to Focus Its Resources, and States to Augment Its Efforts When Necessary

At least with respect to food regulations, the California Supreme Court reached the right result. The FDA must be able to focus resources where the risk of injury is highest, as its resources are not limitless, and it makes sense for states to be able to choose to step in when FDA resources fall short. Indeed, in November 2007, the FDA issued a comprehensive Food Protection Plan, in which it acknowledged the inadequacy of its resources. Surely, it is sensible for states to take note of that acknowledgement and strongly consider stepping in to fill the gap.

For this reason, the California groups who brought the suit should be lauded for seeking to protect consumer safety, in a way that may have the byproduct of protecting threatened wild salmon populations as well.

Donna M. Byrne is a professor at William Mitchell College of Law in St. Paul, MN, where she edits the Food Law Prof Blog and teaches a Food Law & Policy Seminar. She grew up in Oregon and has enjoyed feeding handfuls of fish food to fish hatchery salmon fry.