The Bait and Switch of Seafood Fraud

That red snapper you bought at the market: Is it actually rockfish? How about the pricey local halibut you ordered for dinner: Is it really a cheap, farm-raised whitefish from Asia? What about the tuna at your favorite sushi joint — really yellowfin, as labeled, or is it bigeye with dangerous amounts of mercury? And just how “fresh” can spiny lobster be when it’s sold in July, far after the season has ended?

To answer such buyer-beware questions, an ocean conservation group backed by celebrities but reviled among fishermen published a study last year on “seafood fraud” in the United States. The results were startling: Of 1,215 samples taken from 674 restaurants, grocery stores, and seafood markets, DNA testing revealed that one-third were mislabeled. Farm fish were sold as wild catch, vulnerable species mongered as sustainable, and watch-list items offered under different names. Some of it was criminal deception made in the name of profit. Other times, confusion came out of archaic slang names around the country or bad translations in overseas sales.

Of the 14 regions tested throughout the U.S., Southern California fared the worst with a 52 percent mislabeling rate. And of the retailers tested countrywide, seafood fraud was found most often at sushi venues, which clocked a 74 percent mislabeling rate. Careful not to single out specific locations, Oceana, the organization that commissioned the study, said it was impossible to tell when and where the mislabeling had taken place, if it were perpetrated by the fisher, buyer, distributor, shipper, or the grocer or restaurateur who actually sold the public the fish. Seafood’s chain of custody can be so long and complicated, the researchers argued, that more oversight is needed to make sure consumers eat what they pay for. The U.S. imports 90 percent of its seafood — as does Santa Barbara — but reportedly tests only one percent for fraud.

Pointing to that much-hyped study and a 2009 report by the federal government on similar issues, Congressmember Lois Capps and California State Senator Alex Padilla are now pushing two separate bills aimed at holes in the regulatory net. And they’re pushing hard, in part because election season is coming: Capps is running for reelection in November, and Padilla, currently representing California’s 20th Senate District in Los Angeles, is vying for Secretary of State.

Both lawmakers have support for their legislation from national trade groups, nature organizations, and big-name chefs, but a high number of Santa Barbara stakeholders are skeptical about what the bills hope to accomplish, how they’ll be enforced, and what more red tape may mean for the South Coast. They’re quick to note wholehearted support for accurate labeling, but they’ve also expressed distrust of Oceana’s data and motives, calling the proposed legislation hollow politicking around a nonissue.

Churning the Waters

Introduced in March 2013, the federal SAFE Seafood Act (SAFE stands for Safety And Fraud Enforcement) would increase the frequency of import inspections and, to better track the overseas supply chain, ratchet up coordination between the Food and Drug Administration (FDA) and the National Oceanic and Atmospheric Administration (NOAA). Capps is the legislation’s lead sponsor, and it enjoys bipartisan support — President Barack Obama himself pledged to tackle seafood fraud in a speech last month — but HR 1012 has not yet been vetted by committee. The bill would create a guide to acceptable market names and set packaging rules to ensure the end-of-the-line buyers know the scientific and market names of the species, method of harvest and gear type used, date of the catch, the weight or number for an individual fish or lot, if the catch was previously frozen or treated with a substance that might affect its weight, and if it was farm raised.

“This law does not ask fishers to report any information that they do not already collect,” Capps’s office recently told The Santa Barbara Independent, explaining that it’s “a great way to support the local fishing economy and promote sustainability.” It would level the playing field by targeting “bad actors” in the international market and add a needed level of consumer safety, her office said, also referencing a 2008 Stanford study that showed red snapper was often sold as rockfish in Santa Barbara.

Violators would be fined from $10,000-$30,000 per offense, could be responsible for any monetary loss incurred by mislabeling, and would be added to a public online database. A recent study estimated that 20-32 percent of U.S. seafood imports, worth between $1.3 billion and $2.1 billion, were caught through illegal or unreported methods.

To promote the bill, Capps toured Santa Barbara Harbor in April, but she may have harvested more anger than support. Gary Burke with the Commercial Fishermen of Santa Barbara took the harbor tour with Capps, but he said he’s worried that more regulation will mean a higher cost for fish and that mislabeling is not as dire as lawmakers make it seem. “It’s a feel-good bill to make it look like they’re doing something,” he said. “It’s going to create jobs that aren’t needed and that taxpayers are going to have to pay for.”

Another tour participant, who asked not to be identified, said he walked away from the event with the feeling that it was a “publicity stunt” because Capps “needed some face time” in the harbor. “I know she’s from around here, but I was shocked at how little she knew about our seafood,” he said. “She had never heard of sea urchin before — that’s the jewel of Santa Barbara!”

Burke criticized Oceana for creating a false hysteria around seafood fraud to attract donors and said the organization is viewed with extreme distrust by many in his industry. “They needed a ‘crisis’ to raise money,” he said. Earlier this year, Oceana announced a $3 million grant from the Leonardo DiCaprio Foundation and counts Ted Danson among its biggest supporters. Burke pointed out that an Oceana-backed California Assembly bill to ban controversial gill nets recently died because it relied on dubious claims of bycatch rates put forth by the organization.

On June 19, the U.S. Regional Fishery Management Councils’ Coordination Committee publicly demanded Oceana retract the bycatch report, claiming it contained “a variety of substantial errors, omissions, and organizational approaches” that “may seriously miscommunicate bycatch information.” The committee said that while no laws require Oceana’s reports be peer reviewed, the organization should consider adopting “a standardized peer-review process to ensure that reports like this accurately and objectively represent the best available science.” Other fishermen worried that references to mercury poisoning in Oceana’s fraud study were veiled threats against the swordfish industry and that the supposed mislabeling issue is a smokescreen for continued attacks against gill nets.

Stephanie Mutz, president of Commercial Fishermen of Santa Barbara, didn’t mince words: “I think Oceana lies through their teeth.” She said the proposed bills, while well intentioned, aren’t practical. “If we had a way to track seafood, I think we would have already done it,” said Mutz, who worries that new layers of bureaucracy will raise the price of an already expensive product. “Anytime you increase overhead, it all trickles down to the fishermen,” she said. “It makes it so people want to buy tilapia instead of local halibut.”

Sarah Rathbone of Community Seafood echoed similar concerns. “It’s problematic when there’s increased regulation on local fisheries that are already doing things right,” she said. Top-down, blanket laws often mean more fees and taxes that unfairly dock smaller operations and favor big players, and bills like Capps’s can “lack rationality and specificity of fisheries in order to properly manage certain species,” she said. Both Rathbone and Mutz recommended the Saturday morning Fishermen’s Market at the harbor as the surest way to buy fresh and local seafood straight from the source.

For its part, Oceana — which started in 2001 and is now the largest ocean-conservation nonprofit in the world — has unflinchingly stood by its research and often points to its many policy-level victories to curb pollution, protect vulnerable wildlife and habitats, and promote responsible fishing. In the last two months, it has touted its roles in National Marine Fisheries Service orders to protect sperm whales and rockfish, and last week it called on the World Trade Organization to eliminate fuel subsidies for high-seas fishing. In February, Oceana came out ahead in a battle with NOAA over shark-fin bans, and in January, Shell announced it wouldn’t pursue exploration drilling in the Arctic Ocean in 2014 after Oceana successfully sued the Department of the Interior over a leasing dispute.

Something Fishy This Way Comes

While the Capps bill is focused nationally and internationally, Padilla’s aims at commerce in California. The bill, modeled after similar legislation recently adopted in Washington state, was passed by the California Senate in May and will be voted on in the Assembly by August 31. After that, it goes to the governor’s desk. Padilla’s first bill as a state senator was the menu-labeling initiative that requires chain restaurants to post nutrition information, namely calorie counts.

Padilla’s concern is that, between 1950 and 2006, the world’s annual fishing haul more than quadrupled, from 19 million tons to 87 million tons, a rate that a 2006 Science Magazine study determined would spell worldwide fishery collapse by 2048. Padilla believes labeling fraud lets illegally caught fish and shellfish into the supply chain, which continues to harm an already hurting ocean. Part of the problem is that seafood naming conventions are historically confusing and unwieldy — sometimes dozens of species of fish are called a single name and, alternately, there can be many different names for the same fish — not to mention that average consumers would be hard-pressed to accurately name the fish on their plate or in their grocery bag, especially once filleted.

So Padilla’s state bill would require grocery stores and markets to label all seafood with the FDA-approved common name and note if it’s wild caught or farm raised, or harvested in U.S. waters or overseas. Restaurants would also need to provide common names, but has been allowed to skip the other information after the California Restaurant Association successfully lobbied it would be too cumbersome. Talks are now taking place to possibly include the other details on chalkboards or menu inserts. Violators would be fined $1,000 and face up to a year in jail.

Unique “common” names of seafood are often less appetizing than the publicly known “market” names. For instance, right now, slimehead can be sold as orange roughy, squat lobster as langostino, hogchoker as sole, machete as ladyfish, pompano dolphin as mahi-mahi, and warmouth as sunfish. The FDA manages a list of 1,825 common names, which is added to and removed from every year for financial, political, and environmental reasons. As of last year, Patagonian toothfish can now legally be called Chilean sea bass — though everywhere seemed to be doing so anyway — and Barcoo grunter can be sold as tiger perch. Common names are also more specific: the FDA, for example, recognizes 61 different common names for different species of rockfish, 41 common names for shrimp, and 38 for shark.

Despite the current ability of state retailers to rely on the more general market names, Oceana still found that rockfish was often mislabeled as snapper (a fairly well-known misnomer) and that escolar — a snake mackerel that can sometimes cause stomach problems — was routinely passed off as white tuna. Salmon fillets labeled as wild, king, and sockeye were actually Atlantic, and some halibut was found to be summer flounder or madai. Grouper were found under labels ranging from scamp to bream to perch.

During interviews with Santa Barbara fishermen, market owners, and restaurateurs — most of whom wished to remain anonymous for fear of losing business or alienating colleagues — opinions varied over how often consumers were duped. One market owner claimed he sees the issue every time he goes out to eat and pointed to specific instances when fish were sold as “fresh” and “local” when the species wasn’t even in season. A fisher claimed that some area restaurants secretly serve basa (a farm-raised catfish out of Asia) as halibut or cod or another type of whitefish, and that it’s not unusual for fluke from southern Mexico to be peddled as “local” catch. But other sources said they rarely if ever run into the problem, no matter if they’re in a high-scale eatery along State Street or a fish-and-chip grill on the wharf.

Definitions of “local” were all over the map. Some said local should mean the catch was made in the Santa Barbara Channel or was unloaded by area boats at the Santa Barbara or Ventura harbors. Others said 400 miles north or south of S.B. was fair game for the label, noting current laws don’t put any geographical constraints on the selling point. Whether to call a catch local or not comes down to the seller’s conscience, they said.

The Independent was able to verify a few instances of minor fraud in town, but we have decided not to publish the names of the offending locations as it’s unclear if it was the work of a devious chef or owner, or if the discrepancy simply came down to sloppy signage or an uneducated employee.

On the Hook

Ashley Blacow of Oceana said the fraud study came out of the need for a broad appraisal of labeling accuracy. Some scientific literature existed on the issue, but nothing on a large scale. Blacow and others were surprised at the high amount of fraud they found and that, as a Southern California resident, she said she was particularly distressed by the area’s distinction as the worst offender in the country, the reasons for which remain unclear. While Santa Barbara wasn’t part of the study, “Northern California showed [a 38 percent mislabeling rate] and Southern California was 52 percent, so I think that definitely warrants concern for Santa Barbara consumers,” she declared.

Blacow said the goal of Padilla’s bill is not for local health departments — who will enforce the new law should it go into effect — to test every fillet in their jurisdictions, but to do random sampling and act as a deterrent. The samples could be DNA tested at county offices or sent off to a lab, and the extra cost of such work would be worth it to protect the ocean and support fishermen, Blacow stated. Included in the bill is a “safe harbor provision” that lets a restaurant accused of mislabeling deflect liability to their supplier if they can prove the restaurant was simply selling an item under a name provided by the supplier. “So it’s very important to maintain accurate paperwork,” said Blacow. She’s confused why fishermen would be so concerned over Padilla’s bill, explaining, “They would directly benefit from it.”

Larry Fay is director of Santa Barbara County’s Environmental Health Services at the Public Health Department, and he and his team of 10 inspectors regulate the county’s retail food establishments, of which there are around 2,000. Seafood fraud hasn’t been on their radar, and Fay was surprised to learn of the Padilla bill. Upon reading it, Fay believes his team would, if it passes, become responsible for making sure that the packing labels on seafood in a restaurant’s cooler or freezer match what it says on the menu. “If there was something on a menu or chalkboard, but we couldn’t find evidence that that’s what they had received, that would be a problem,” he explained.

Despite the bill’s “convoluted” wording — “It’s some of the most tortured language I’ve seen in awhile,” Fay noted — the upshot would be fairly straightforward. The county’s food inspectors try to make unannounced visits to locations at least twice a year to ensure handling and safety protocols are up to code, and they focus on anything “that appears to be an anomaly.” Though the drop-ins are mostly designed to “act as a deterrent,” Fay said customer complaints can also prompt a visit.

While checking seafood labels would become part of that routine, Fay explained, “It will be a challenge if they really want to be rigorous.” If passed, Fay said he would first make sure the food purveyors were aware of the new regulations. “We would be focusing much more on education at first,” he said. “We would take it slow. You wouldn’t bust someone on Day 1.”

But Justin West, head chef of Julienne restaurant who was also invited to Capps’s harbor visit, said he’s skeptical about Padilla’s bill and would not be in favor of it. “Speaking from a financial standpoint, it’s already hard enough for [the county] to keep up with food safety, let alone having to do label checks,” he said. “We’re not the only place that’s way over-restauranted and under-inspected. There’s just not enough humans, not enough money in the budget.”

West said he sees the fatigue on the face of his food inspector when she stops by Julienne and that more government intervention is not the answer to dealing with mislabeled meals. “It’d be nice if restaurant operators would do the right thing, because I wish the government would stay the hell away from our food,” he lamented. “It needs to come down to the ground level, and people asking questions and deciding with their wallets.”