Recent studies by Oceana and others have alerted many consumers that they cannot be completely sure where the seafood on their plate came from or even what kind of fish is on their plate. Earlier in the year, Oceana published the results of extensive testing and revealed that one-third of the seafood samples tested across the country were mislabeled. Generally, consumers imagine restaurants and markets passing off mackerel as grouper or farmed salmon as wild salmon so they can charge the highest possible price. Seafood fraud, however, includes a variety of other activities, such as over-breading prepared seafood products or packaging fish with too much ice to artificially increase the weight of seafood products to drive up the price. Seafood fraud isn’t always employed merely as a means of simply passing costs along to the consumers.
For example, foreign seafood producers may mislabel the product’s country of origin to avoid payment of antidumping duties (transshipment to avoid duties). Nearly a decade ago, an individual and his Florida companies, aided by Vietnamese exporters, imported thousands of pounds of catfish into the United States labeled as grouper to avoid paying antidumping duties that the Department that had been imposed on Vietnamese catfish. The companies were ultimately required to forfeit property and over $1 million (defendant was also sentenced to over 4 years in prison). A Virginia man was sentenced to more than five years in prison and ordered to reimburse $12 million to the government for unpaid antidumping duties on more than 10 million pounds of pangasius, which he passed off as other species of fish. The fraud can begin with the harvester, but may be perpetrated at any point along the supply chain. The links in the supply chain that follow the harvester may simply turn a willfully blind eye to the fraud. This post considers the relevant laws and legal theories implicated by seafood fraud.
The Food and Drug Administration (FDA) administers the Federal Food, Drug, and Cosmetic Act of 1938, which is the primary means for a federal agency to address mislabeling. This act gives the FDA authority over most food regulation and includes provisions for control over all labeling of foods in interstate commerce and provides enforcement remedies available to the agency. Moreover, the Fair Packaging and Labeling Act requires that consumers of packaged commodities be provided with accurate information as to the contents within.
Consumers also have a private right of action under federal and state laws. Under deceptive trade practice laws, it is generally illegal to engage in false, misleading, or deceptive practices in the conduct of trade or commerce. Courts may consider monetary damages to consumers, the frequency of the unlawful practice(s), the intent behind the practice(s) and the number of consumers ultimately affected by the practice(s). When a popular restaurant or grocery story intentionally mislabels seafood to unreasonably drive up the price, significant damages may exist.
Additionally, in the transshipment situations described above, a conspiracy charge is a possibility. A conspiracy is an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal and, usually, an overt act toward accomplishing the goal. When multiple actors have worked together to deceive government agencies in order to avoid paying certain duties, conspiracy charges are viable.
In extreme circumstances, there may even exist a criminal recklessness action. While it sounds far-fetched, a number of folks became ill in 2007 when imported puffer fish was mislabeled as monkfish. Puffer fish contain a deadly toxin and must be prepared by experts to avoid causing the consumer injury or death. In fact, in 2012, a man from Illinois was sentenced to more than 7 years in prison for obtaining a deadly puffer-fish toxin to deploy as a weapon. Some state statutes define criminal recklessness generally as a situation in which an actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk. Given that the puffer fish is notorious for the danger associated with eating it, it is hard to imagine too many people in the seafood industry are not aware that passing puffer fish off as another species creates an unreasonable and substantial risk of great bodily harm. Again, this was an extreme circumstance. Seafood experts have noted that mislabeling one type of fish as a similar but more expensive fish generally does not pose a major public health threat.
Regardless of the health risk associated with the fraud, consumers want to feel confident about what’s on their plate. In 2012, United States Representatives Edward Markey and Barney Frank introduced the Safety and Fraud Enforcement for Seafood (SAFE Seafood) Act in an attempt to address the issue by requiring full traceability for all seafood sold in the United States.