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Fish oil lawsuit settlement is imminent, insiders say

An out-of-court settlement is expected by early March, two industry insiders say, and the ultimate impact on the omega-3 sector will be negligible.

The end is in sight for the famed Prop 65 fish oil lawsuit. An out-of-court settlement is expected by early March, two industry insiders say, and the ultimate impact on the omega-3 sector will be negligible.

The whole controversy started back in March 2010, when a group of Prop 65 lawyers, called the Mateel Environmental Justice Foundation, filed suit against eight makers and sellers of fish oil, shark oil, fish liver oil and shark liver oil supplements.

In the group's tests, the products had PCB contamination above the so-called “safe harbour” limit for human PCB consumption under California's Proposition 65 law. The fish tested all come from larger fish and “fish liver” sources – rather than the anchovy and sardines that make up the bulk of fish oil ingredients and supplements.

The suit, Mateel v. CVS, took the industry by surprise, but even worse was the foul air of money-grabbing it elicited. The plaintiffs make a no-doubt cushy career of suing food and supplement manufacturers for exceeding the state’s PCB threshold – even though there is virtually no food product that doesn’t exceed the state’s PCB threshold. That’s how ubiquitous PCBs are in the environment. When first produced the chemicals were, after all, intended to be highly persistent. Fresh fish, pancakes and even human breast milk have higher PCB levels than the “offending” products cited in the lawsuit.

Even ConsumerLab President Tod Cooperman – usually an agitating voice in the natural products industry – raised a sceptical brow when news of the lawsuit aired (on just about every major news network in America).

About the test results he told Functional Ingredients magazine:“None of these pose a health risk in themselves … Totaldaily PCBs reported was under 100 nanograms for most supplements and did not exceed 900 nanograms for any. The FDA permits an 8oz serving of fish to contain about 450,000 nanograms of total PCBs, 500 times more than in any of the products. The EPA, using a more conservative approach, estimates that the average adult can consume 1,400 nanograms of total PCBs per day without harmful effects."

That fact is probably little solace to the defendants, who have been shelling out enormous sums of money to defend themselves. This includes: CVS Pharmacy Inc.; General Nutrition Corp. (GNC); Now Health Group Inc.; Omega Protein Inc.; Pharmavite LLC (Nature Made brand); Rite Aid Corp.; Solgar Inc.; and TwinLab Corp.

Even once this lawsuit is resolved, the fact remains that virtually every food and supplement product in America is susceptible to being sued under Prop 65. Prop 65 settlements totalled $24.5 million in 2008 alone, according to Attorney General’s Office reports.

“It would take a two-thirds vote of the state legislature to amend Prop 65,” explained Lana Beckett, founder and CEO of the Prop 65 Clearinghouse in San Francisco, a subscription-based service that offers neutral reporting on all Prop 65 litigation. “That isn’t going to happen.The law has been around since 1986, and it's here to stay.”

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