March 8, 2005
CONSUMER WARNINGS ABOUT MERCURY IN FISH -CALIFORNIA LAWSUIT SETTLEMENT
By: John Kasprak, Senior Attorney
You asked for information on recent California activity concerning the posting of warnings about mercury in fish.
In April 2003, California Attorney General Bill Lockyer filed a lawsuit against a number of major restaurant chains alleging that they violated the state's “Proposition 65” by failing to post “clear and reasonable” consumer warnings about exposure to mercury in shark, swordfish, and tuna. Proposition 65 requires consumer warnings when consumers are exposed to substances known by the state to cause cancer or reproductive harm. Mercury and its various compounds are listed by the state as such substances.
On February 4, 2005, a San Francisco County Superior Court judge approved a settlement of the lawsuit under which hundreds of restaurants statewide will be required to post warnings to patrons about mercury in fish. All but two of the restaurants sued will be required to post a detailed warning about mercury in fish that includes a notice that pregnant women and young children should not eat shark, swordfish, mackerel, and tilefish. The same warning also advises pregnant women and small children to limit their tuna consumption. Restaurant chains subject to these requirements are Red Lobster, Ruth's Chris Steakhouse, Yard House, Chili's , Macaroni Grill, Outback Steakhouse, Benihana, Chart House, Claim Jumper, Cheesecake Factory, and P.F. Chang's. The other two restaurant chains (Morton's and a corporation including Bennigan's) will have to post a generic warning advising patrons that known carcinogens or reproductive toxins may be present in food or beverages sold in the restaurant. (See “Attorney General Lockyer Announces Court Approval of Settlement Requiring Major Restaurant Chains to Post Warnings About Mercury in Fish,” California Office of the Attorney General news release, February 4, 2005).
The warnings must be posted near the front door, near the hostess desk or reception area, or near the entry or waiting area. The signs must be at eye level and sufficiently lit. The settlement also requires the restaurants to pay $132,287 in civil penalties and another $132, 287 to fund programs to educate consumers about mercury in fish, and to help finance the effort to monitor defendants' compliance with the settlement.
(A copy of the settlement is attached.)