The U.S. tuna industry has been quietly working for decades to change the way that the content of a can of tuna is judged, making the case that a different standard could eliminate outdated requirements and open up the product to innovation.
So far, the industry hasn’t made much headway, but a lawsuit filed earlier this year in California — by a consumer complaining that his 5-ounce can of StarKist tuna didn’t contain enough fish — has created a bit of a splash, drawing interest from an association that represents rival tuna brands to advocate on behalf of their grocery store competitor.
The National Fisheries Institute, which represents Bumble Bee and Chicken of the Sea as well as StarKist, filed a request earlier this month with the U.S. District Court, Northern District of California, Oakland division, to submit an amicus brief in the case of Patrick Hendricks v. StarKist Co.
The lawsuit, which seeks class-action status, could directly affect the other businesses, not just StarKist, according to the institute's filing. "NFI believes that the standard of identity for canned tuna cannot be met given current can technology," it told the court.
For consumers whose most recent encounter with a can of tuna seemed pretty much the same as it did a decade ago and even two decades ago, this might be news. The packaging doesn't, on the face of it, seem to have changed much, with the possible exception of a pop-top tab.
But it turns out that the Food and Drug Administration and the tuna suppliers to the U.S. market have been talking about changing the way that the packaged fish is measured since at least 1994. The first petition filed by the then-U.S. Tuna Foundation didn't have sufficient information to persuade the FDA to make a change, according to that agency.
In 2007, the tuna foundation merged into the National Fisheries Institute and then, in 2011, the institute's tuna company members filed a new petition.
Among other things, the industry wants to base the standard that judges if a can is properly filled from a "pressed cake weight" to a drained weight standard.
It's the kind of technicality that most consumers might not pay attention to, but it's also a factor in the run-ins the companies have been having over how much tuna is in their cans. Last summer, the three main tuna packers settled with several California district attorneys for $3.3 million without admitting wrongdoing.
In the pressed cake weight test used in FDA requirements, the top and bottom of cans are removed with a can opener, the contents drained and then put under uniform pressure to determine how much tuna is in the container. Since there's variation between cans, the test requires 24 cans to be checked.
Mr. Hendricks filed his suit in February, in which he said independent testing by a laboratory hired by his attorneys confirmed that "every variety of StarKist tuna is, in fact, uniformly underfilled and thus substantially underweight."
The institute argued, in its recent court filing, the "highly technical specification" can only be performed on a three-piece can. It says its tuna members stopped using three-piece cans in the 1980s because two-piece cans are better for the environment, releasing less volatile organic compounds during production.
In addition, there aren't many machines available to run the tests, said Gavin Gibbons, spokesman for the National Fisheries Institute. "It's hard to replicate time after time after time," he said in a recent interview.
A drained weight standard would bring the U.S. industry in line with standards used internationally, as well as on other canned foods sold in this country, the institute said in its court filing.
Even as the tuna companies have been arguing over the standard for cans, the industry has been innovating -- putting fish in pouches and creating flavored varieties like StarKist's Ready-Made Tuna Salad Albacore and Tuna Creations Zesty Lemon Pepper.
The industry's petition also requested that the FDA rules start allowing the use of any safe and suitable ingredients and permit other styles of packing. The National Consumers League, a Washington, D.C., nonprofit, backed that move in supporting comments filed with the government agency earlier this year.
"Currently, an increasing number of canned tuna products are outside of the FDA standard of identity," the consumer group said in its comments to the FDA. "This situation defeats the purpose of the standard and creates the potential for consumer confusion."
It's not unusual for regulations to be outpaced by technology and taste changes, said Lucina E. Lampila, an associate professor and seafood specialist at Louisiana State University. Ms. Lampila noted that she had received funding from StarKist during her post-doctoral work, but she was not aware of the FDA petition until contacted for this story.
She said improvements in packaging technology may create a better-tasting product or provide other advantages. Consumers, who are often wary of cooking seafood themselves, also seem to respond well to being offered different flavors and recipes, which is why grocery stores now have many different types of shrimp, Ms. Lampila said.
Many consumers might not be aware that the FDA sets certain standards for things like peanut butter or processed cheese, but they may wonder at how a can of tuna differs from the pouched tuna next to it on the grocery aisle.
"The current standard's restrictions made sense when food labels were not required to bear ingredient or nutrition information," said the National Consumer League in its comments, "but we see no reason for these restrictions today."
StarKist has been referencing the ongoing industry efforts in its legal defense, arguing that this is a case for the FDA and not the courts. Mr. Hendricks, in his case, has countered that such changes haven't happened and aren't pertinent.
The FDA is still accepting comments on the tuna group's petition.
