Seventh Circuit Backs FDA, Sets Low Burden of Proof in Food Adulteration Cases
The chub is a fish that many Americans have never heard of. To many others, however, it is a food; to the fishermen of Lake Michigan, a livelihood; and to the Vita Food Company, purveyors of smoked chub, a business. In the past few years, the level of DDT and dieldrin in Lake Michigan has risen, and so too have residues of the two chemicals in the tissues of the fish caught in the lake's waters.
The presence of DDT and dieldrin in the smoked chub poses several problems for the government agencies charged with protecting public health. First, scientists are unsure how much pesticide humans can ingest safely. The Food and Drug Administration, in the absence of hard data on which to base a tolerance, has established "interim guidelines," also called "action-level guidelines," of 5 parts per million (ppm) of DDT and .3 ppm of dieldrin. In addition, the fishermen and fish processors, unlike farmers, did not cause the pesticide contamination of the product they are selling. To make the fishermen pay the penalty for pollution caused by farmers seems inequitable. It would be still more inequitable, however, to decree that Americans must eat contaminated fish because an inequity would otherwise be worked on the innocent fishermen.