Major Fish Oil Products Face Prop 65 Suit

SAN FRANCISCOMateel Justice Foundation, in conjunction with two individual plaintiffs, brought a lawsuit against six fish oil manufacturers and two retailers for labeling violations of the California Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65. Filed March 2 in Superior Court of San Francisco, the suit alleges several fish oil products sold in California failed to include label warnings for levels of PCBs (polychlorinated biphenyl compounds) found in the products by testing initiated by the plaintiffs, which include Chris Manthey and Benson Chiles, both consultants with the environmentalist Blue Line Network. Named as defendants in the suit were two retailersCVS Pharmacy Inc. and Rite Aid Corp.and six manufacturersGeneral Nutrition Corp. (GNC); NOW Health Group Inc.; Omega Protein Inc.; Pharmavite LLC (Nature Made brand); Solgar Inc.; and Twinlab Corp.

David Rowe, one of the attorneys for the plaintiffs, noted Prop 65 sets a limit for PCBs, relative to cancer risk, in such consumer products, and any product containing PCB levels above such limit must feature warnings for such levels on the product labeling. The plaintiffs conducted testing on 10 products produced and/or sold by the defendants, looking at all 209 known PCB compounds; Rowe said many fish oil companies test for as few as seven such compounds. People buy fish oil to improve health, not to put it at risk, he reasoned. It is particularly important they know about this [contamination]. He noted PCBs are man-made chemicals designed to be persistent and last a long time for the benefit of certain industrial applications. However, they dont break down and can accumulate in the food chain, he noted.

Manthey co-founded the Environmental Background Information Center, a research provider for grassroots activists, and BackTracks, which conducts background checks on execs before major financial transactions. He explained his background in research and investigative work, which includes volunteer work for Surfrider and auditing for Deloitte, along with his love for ocean issues fueled his probe into Omega Protein, which he said appeared to dominate the Atlantic Coast fishery industry. He said seeing results from earlier Environmental Defense testing on fish oil, which showed high toxin levels, prompted him to connect with Chiles on testing some currently marketed supplements. The two N.J.-based consultants claim their goal in bringing the Prop 65 lawsuit is to prompt fish oil companies to conduct the proper testing and use appropriate warnings on product labels when PCB levels are present, and to encourage the relevant government agencies to step up their guidance and enforcement in this area. They noted the Environmental Protection Agency (EPA) has been trying to set a PCB limit in such products for about 20 years, and FDA does not currently have any guidelines or regulation of PCBs in fish oil supplements.

Rowe noted the plaintiffs, as required, notified and got the go-ahead from the California Attorney General (AG), and also contacted and continue to communicate with the defendant companies on possible solutions to the problems alleged. The complaint seeks civil penalties and injunction to remedy the offenses alleged. It also seeks to require the defendants to seek out every prior consumer of the products and issue them a fair warning of the PCB levels alleged. The companies could face penalties up to $2,500 per day per violation, which can add up, with three-quarters of any financial penalties going to the state and 25 percent going to the plaintiffs.

However, Rowe stressed the goal is to change the way the fish oil supplement industry tests and markets its products. Admitting the 10 products tested is a mere fraction of the hundreds of products in this category, and acknowledging it is hard to extrapolate what PCB levels in those other products would be, he said the products tested by the plaintiffs indicate a serious enough problem to initiate the lawsuit.

Consumers who want the health benefits of fish oil shouldnt also have to take the health risks of an extremely toxic man-made chemical, Rowe said. And they dont have to, since preliminary test results show some fish oil brands have only 1/70th as much PCB contamination in them as others.

Manthey added many fish oil supplement labels proclaim testing for such contaminants, which are common in fish populations due to ocean pollution, but they dont say what levels are actually in the product. It tells me they know [contaminants] are in the pills, he said, adding the situation puts responsible manufacturers in a bad positionif they put even a low, acceptable level on their label, some producers will not put any on the label, and consumers will think the ones without any levels on the label are better, more pure, which might not be true.

The plaintiffs reported they expect to test more fish oil products in the future and post results to their Web site created for this case, FishOilSafety.com.

Also listed on the site are the products tested, which include:

A copy of the Prop 65 complaint is available here.