Updated: May 15, 2024
The below is an informal brief submitted to a judge requesting to be concisely briefed on the naturally occuring defense on a shellfish California Proposition 65 case.
See the full article here.
Proposition 65 requires clear and reasonable warnings absent an exemption under Cal. Code of Regs. tit. 27 § 25249.10 (preemption, ≤12 months since listing of a chemical, no significant risk), or a determination that the listed chemical is naturally occurring, § 25501(a)(1), People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1556 [90 Cal.Rptr.3d 644].
Prop. 65 does not exempt a product when it is polluted by natural or synthetic toxins
Prop. 65 does not exempt any food or product, including water, when it is polluted by natural or synthetic substances.
“Naturally occurring” = no known human activity
“Regs., tit. 27, § 25501, subd. (a).) A chemical is naturally occurring only to the extent it does not result from known human activity. (Id., subd. (a)(3).) Thus, where a food contains a chemical that is “in part naturally occurring and in part added as a result of known human activity,” only the portion attributable to human activity counts toward the exposure.” Tri-Union, at 1556.
Defendant’s burden to prove “naturally occurring” defense
To come within the “naturally occurring” rubric, a defendant must prove that the chemical “is a natural constituent of a food” or “is present in a food solely as a result of absorption or accumulation of the chemical which is naturally present in the environment in which the food is raised, or grown, or obtained … .” § 25501, subd. (a)(1), Tri-Union, at 1556.
Distinguishing Tri-Union tuna/mercury case vs. shellfish lead and cadmium cases
In comparing the sources of pollution impacting different marine species, Tri-Union, the case of methylmercury contamination in tuna, is vastly different due to a variety of factors, including that there is a notable distinction between a large, migratory, deep-waters fish, such as tuna, where there is very little, if any, anthropogenic mercury in the deep ocean, and sessile—remaining fixed in one place—shellfish, whose exposure to pollutants is limited to the specific, shallow waters, for instance, of the Chesapeake Bay, the Rappahannock River, etc.. These areas are affected by identifiable point sources of pollution, thus facilitating a clearer tracing of contamination sources.
Other factors are that methylmercury production is primarily a result of microbial activity in aquatic environments where anaerobic bacteria convert inorganic mercury into methylmercury, while lead and cadmium are industrially produced; lead and cadmium have a wider range of application, much higher volume of use compared to mercury; once released, mercury can be transported over long distances through the atmosphere before being deposited in oceans; methylmercury emissions emanate from nonpoint sources (NPS) vs point sources for lead and cadmium; large fish traverse vast and varied oceanic environments as top predators, this wide range, and their position in the food chain make it challenging to pinpoint the exact sources of mercury pollution, etc..
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