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The Man Who Won The Battle Against The Tuna-Mercury Myth

The court case of the state of California versus the three major tuna brands in United States – Bumble Bee, Chicken of the Sea and StarKist – raised a polemic subject to the tuna industry and tuna consumers all over the world: Is mercury in tuna reaching poisoning levels?

Forrest Hainline, the attorney representing the U.S. tuna companies in the case, explains all the “loose ends” of misleading data that confirm the answer to that question to be a loud “NO”.

The San Francisco Superior Court has announced -in a final decision- that tuna companies are exempted from warning requirements of Preposition 65 about mercury presence in their products.

In this interview for, Forrest Hainline explains what made the U.S. Justice Department rule in favor of safe tuna consumption. What was the basis for the State of California to raise mercury in tuna as an issue and take it to court?

Forrest Hainline: Here’s what happened. Some years ago, when the case started, there was a lot of press from political/environmental groups about how the coal powerplant pollution was causing mercury to increase in the oceans and how that was terrible for people. They believed that if they could frighten people away from eating tuna and other fishes there would be pressure on the coal industry and Congress would interfere. There is a book, by the U.S. National Research Council, called Toxicological Effects of Methylmercury in which the cover shows a powerplant on the background with many sad looking tuna swimming around in the water beneath it. So, it started as a myth. Then, the Faroe Island Study came out, in which it was wrongly reported that eating fish would cause health problems with babies. However, what women were eating there was actually whale meat and blubber with PCBs (Polychlorinated biphenyls).

What was the reaction of the tuna industry at that time?

The interesting fact was that, in face of the Proposition 65, tuna companies had reached an agreement with the citizens group (claimers) to do public service information on television. They brought the settlement to the former attorney general, Bill Lockyer, who happened to be on the hands of environmental groups. He then said to Dave Burney (former director of the US Tuna Foundation) “You’re poisoning children; I’m not going to settle with you”. He completely bought the non-sense that tuna was bad for people!

As a consequence the State took over the case and when we went to trial, the key witness for the State of California was Debra Rice, anti-mercury activist. We put on a case for 28 days showing that the Faroe Island study was not dependable in terms of the effects of eating fish in human beings. The Seychelles Island Study is much more dependable and that shows no adverse effect at all.

Current studies show that if women do not eat fish while they are pregnant, it negatively affects their children’s health and we also put to sleep this idea that mercury in ocean fish is a result of human activity, other than something that has been there forever before. The State was driven by many myths and we had the opportunity to put it in the correct science.

If the trigger was pollution caused by humans, why only focus on tuna and not on other fish?

Because in surveys done in this country, 90% of people - particularly households with women in it –will have two products in their monthly grocery list: Campbell Soup and some brand of canned tuna. The impact in America is huge. If you can make people afraid of eating tuna, you will have a larger amount of people protesting for “safe tuna” and therefore, to stop pollution. The fact is: even if you stop all the coal plants in the world tomorrow, in 200 years there will still be the same amount of Methylmercury in the oceans and in tuna. Therefore, I believe it’s really irresponsible to drive people away from eating tuna – which is the most inexpensive source of Omega 3 today for the widest number of people.

One of the attorneys for the State is a woman named Susan Fiering and she posed this question, which was reported in the press: “why can’t people eat line-caught salmon instead?”
Well… line-caught salmon costs a lot of money and most people in America cannot afford it, but they can afford tuna instead of pizza and hamburgers for their overweight kids. The last thing this country needs is to eat less fish.

CBS recently ran a test with one of their reporter to measure mercury levels after eating tuna every day and the results showed higher concentration.  What’s your opinion about that?

I was quoted in that article, and they have interviewed me again after it. The reporter ate tuna every day; her mercury level went up but with no side effects whatsoever. My comment was that this woman ate tuna day after day, but there’s no evidence of the amount of mercury in tuna you can be exposed to without even affecting your health. Particularly if you’re pregnant or want to be pregnant, the FDA recommends eating two tuna meals a week, which is fine, but everybody else can eat it every day. I eat it every day. The doctor behind the story, Jane Hightower, hasn’t published any articles that justify her extreme position. She’s also the doctor on Oceana’s video, confirming “tuna poison” of some of her patients. If she really believes that tuna can be harmful to people, she would be violating her medical oath by running this test in conjunction with this reporter. In addition, we asked the reporter who subjected to the experiment for a copy of her blood exams and she refused to give it to us. It shows all the nonsense.

What do you think the consequences would be if the State of California won the case?

We put a survey to check how people would react if they were exposed to warnings like the Preposition 65 want them to. We concluded, by the results, that we would have at least a 15% decline of the purchase of tuna. I also believe that it would be a decline of overall fish consumption, which means increase in obesity and people would be less healthy. Therefore it would have a very bad outcome for the people in California if we placed those warnings in tuna.

What was the key element that made the court favorable to the tuna companies?

The fact that Methylmercury is a chemical component found naturally in the environment, and that’s because of the way the law is written here. If the substance is in the nature, you don’t have to report warnings.

What about the fact that Preposition 65 goes against Federal law and the uncertainties about mercury levels affecting human health?

The court of appeal didn’t reach those subjects. There were three reasons for which the tuna companies wouldn’t win this case and the State had to prove all of them for that to happen. They would have to prove that: 1) Preposition 65 was legally viable and consistent with Federal law; 2) that levels of mercury in tuna would be harmful to human health and; 3) that the Methylmercury found in tuna was caused by human pollution. Since the court had very strong and reliable scientific data to confront the third reason, it didn’t even have to reach the others. In other words, the decision was based solely on the ground that substantial evidence supports that Methylmercury in tuna is naturally occurring.

Do you believe that the State of California will still appeal?

No, I don’t think there’s any chance that the Supreme Court will review the final decision. I think this is the end of it, I think the court of appeal relied on the one reason that is the most immune from any Supreme Court review.