Attorney General Sues Chains Over Mercury Warning

By JENNIFER BELLANTONIO
Orange County Business Journal

California Attorney General Bill Lockyer has sued 15 restaurant chains, but they're not exactly singing the blues.

The state alleges that the chains violated the state's Proposition 65 by failing to warn diners about carcinogenic mercury and related compounds in certain seafood: shark, swordfish, tuna, king mackerel and tilefish.

Health advisories urge pregnant and nursing women and young children to avoid those fish.

Under Proposition 65, California's 1986 environmental law, businesses are required to warn workers or customers before exposing them to substances known to the state to cause cancer or harm to the reproductive system. Mercury is on that list.

Civil penalties of up to $2,500 per day per violation can be levied. The state has yet to determine violations in this case.

Not a pretty picture. But the chains, which include Yard House Restaurants LLC, Brinker International Inc., Darden Restaurants Inc., Outback Steakhouse Inc. and Cheesecake Factory Inc., prefer it to the alternative: suits filed by private activist groups represented by law firms.

"Often private enforcers are after settlement fees," said John D. Dunlap III, president and chief executive of the California Restaurant Association, which joined in urging Lockyer to file the suits.

Dunlap also said outcomes in a private suit could be "wide and varied," as opposed to what the state usually wants: "getting the proper warning to consumers," he said.

The restaurant owners were leery after seeing aggressive law firms such as Beverly Hills-based Trevor Law Group LLP go after restaurants and other small businesses for alleged infractions of the state's Business and Professions 17200 code.

Trevor Law hasn't gone after the restaurant chains for Proposition 65 violations. But the restaurants still feared becoming targets of lawyers. Often 17200 cases are linked with Proposition 65 cases.

Fish warning

The attorney general decided to take up the fight on Proposition 65 seafood-related lawsuits after Irvine-based Consumer Defense Group Action, represented by Anthony Graham of Graham & Martin LLP, also of Irvine, filed a suit against Darden and Brinker in Orange County Superior Court.

Under state law, private groups must notify the attorney general of their intent to sue. The attorney general has 60 days to file its own suit. In this case, Lockyer did file two suits. Consumer Defense dismissed its suit.

"We made the decision to withdraw because the attorney general wanted to take the case and can obviously adequately represent the interests of the people of the state in this matter," Graham said.

Lockyer approved an interim warning sign in April that the California Restaurant Association is "suggesting all restaurants post, in particular those establishments serving fish and seafood," Dunlap said in an April memo. To comply with Proposition 65, the warning sign must be 8.5 by 11 inches and posted in a "clear and reasonable" manner where food is served.

It reads: "Warning: Chemicals known to the state of California to cause cancer or birth defects or other reproductive harm may be present in foods or beverages sold or served here."

"That's a tough one to swallow," said Ed Lee, director of planning for Wahoo's Fish Taco. "That's what's going to kill everybody."

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