The following post was written by attorney Tony Munter.
Chefs all over the country are serving Snapper which really isn't Snapper. In fact researchers from the environmental group Oceana found that 87% of the time the snapper sold in restaurants and grocery stores is some other kind of fish.
The Oceana study was picked up by the Washington Post's Juliet Eilperin and Tim Carman on February 21, 2013. Apparently the mislabeling of fish is not restricted to just snapper.
Oceana investigated seafood from 2010-2012, "...collecting more than 1,200 seafood samples from 674 retail outlets in 21 states to determine if they were honestly labeled.
DNA testing found that one-third (33 percent) of the 1,215 samples analyzed nationwide were mislabeled, according to U.S. Food and Drug Administration (FDA) guidelines.
We called Oceana and their spokesman said that, so far at least, nobody is exactly sure who in the food chain is creating the mislabeling and therefore they can not be sure who is responsible for providing fraudulent fish. The Post story provides several theories. Could it be chefs are dressing up fish to look like more than it is? Could it be purveyors are systematically changing expensive fish for cheap fish?
This seems like something much bigger than a couple of cheap chefs. If this is a systematic fraud within the industry, there is a potential False Claims Case in the works. Somebody has to know what is really going on, and that somebody could file a case under 31 U.S.C section 3729 et seq.
What ought to make this especially compelling to False Claims Act practitioners is the fact that there are FDA regulations involved. Yes, the F in FDA is for Food. That may be obvious to the rest of the world, but lawyers worrying about fraud have been more concerned with drug companies. Drug companies harpooned by False Claims Act cases had to pay huge amounts of money for violating FDA regulations in the marketing of pharmaceuticals. Many of the cases involve, miss labeling. So, why not fish?
The Federal and state governments both buy fish. They have troops to feed and children who eat school lunches. If there are government contracts to buy fish and that fish is not what it is labeled to be, there could be a case. If the fish is somehow not up to regulations, if it were to fail under any FDA regulation, even for labeling the fish, that could strengthen the case.
To be fair, this may not be as easy a case as we all would think. If a bunch of rogue chefs all get the same idea at once, well it's going to be hard to prosecute every restaurant in town. The Post article quotes what sounds like a very legitimate exception in the case of some Sushi sellers who alter the name of one expensive Japanese delicacy for another. Apparently, Patgonian Toothfish sells better under the name of Chilean Sea Bass. Nobody is going to sue anybody for changing the name of one very expensive piece of fish, for another very expensive fish.
However, if really cheap fish is substituted for expensive fish, and that labeling is deliberately done to make money, that could be an issue. Government officials were quoted as also being concerned about the inflated weight of fish rather than just "species substitution." If there is a way to prove less actual fish is sold than was purchased under a government contract that could also be an issue.
Either way there may be something more to this fish story. After all Oceana's study implicated up to 1/3 of all the fish sold in restaurants and grocery stores in the country. We just need somebody on the inside of the industry who knows what is really happening.
Published with assistance from Stephen Higgins.