Press Release March 23, 2009

Goodwin Procter Wins Appellate Victory in California Prop 65 Case

BOSTON, March 23, 2009 –In an important legal decision that may prove critical to dietary supplement companies who are defending claims brought under California’s Proposition 65 statute, Goodwin Procter obtained a significant victory for its clients, the BumbleBee, Starkist and Chicken of the Sea tuna companies, when the California Court of Appeals affirmed a trial court finding that methylmercury warnings in connection with the sale of canned tuna are not required under Prop 65.

Specifically, the court found that substantial evidence that virtually all the methylmercury found in canned tuna occurs naturally, independent of human activity.  Methylmercury is the type of mercury found in fish and is not emitted by pollution.  Naturally occurring substances are exempt from Prop 65, which requires companies to issue warnings to consumers if a product contains specific carcinogens or reproductive toxins. 

“This case has significant ramifications for the tuna industry and beyond.  The FDA has decided that consumers need to be informed in the appropriate way and that the Prop 65 warnings are unnecessary,” stated Forrest A. Hainline III, partner in Goodwin Procter’s Litigation Department, who was lead trial counsel in the case in the Superior Court in San Francisco and also argued the appeal.  “Prop 65 has resulted in far-reaching consequences for the thousands of companies conducting business in California, including the dietary supplement industry.  It is essential to point out that the appearance of naturally occurring contaminants such as lead or methylmercury in products does not require a Prop 65 warning in California.”

In addition to proving that virtually all of the methylmercury was naturally occurring, Goodwin Procter also successfully illustrated in the trial court that the levels of methylmercury in tuna were below the baseline standard for Prop 65.

“This decision is a strong precedent for dietary supplement companies that may be facing similar lawsuits,” added Joanne Gray, co-chair of the American Bar Association’s Food and Supplements Group and co-chair of Goodwin Procter’s Food / Supplement Industry practice.  “It demonstrates that the food and supplement companies targeted in Prop 65 lawsuits need to mount a strong defense when their products contain naturally occurring substances such as lead, thereby removing themselves from the unreasonable reach of so-called ‘Prop 65 claims’.”

The state of California has recently filed a lawsuit against several leading dietary supplement companies, alleging violations of Prop 65 by claiming that the defendants sold supplements containing lead.  Goodwin Procter’s recent victory for the tuna industry will be closely watched by companies who manufacture or sell products containing substances that are alleged to be covered by Prop 65.

About Goodwin Procter
Goodwin Procter LLP is one of the nation’s leading law firms with 900 attorneys in offices in Boston, Hong Kong, London, Los Angeles, New York, San Diego, San Francisco, Silicon Valley, and Washington, D.C. The firm’s core areas of practice are corporate, litigation and real estate, with specialized areas of focus that include financial services, private equity, technology, REITs and real estate capital markets, intellectual property, tax and products liability.  In addition to these practice areas, the firm is one of the few law firms in the county to have a group of lawyers from a wide variety of disciplines that focus specifically on legal issues affecting the food and supplement industries.  Information may be found at www.goodwinprocter.com.