Seafood Marketing: Combating Fraud and Deception
Combating Fraud and Deception
Updated September 12, 2008
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Seafood Marketing: Combating Fraud and Deception
With increased seafood imports and decreased monitoring, fraud and deception
in seafood marketing is becoming more widespread. The flesh of many fish species
is similar in taste and texture and, therefore, it is difficult to identify species in fillet
form, especially after preparation for consumption. Thus, it can be relatively easy to
substitute an inexpensive species for one of higher value. Inaccurate (low) counts or
net weights (“short weighting”) result in consumers receiving less for their money
than advertised and anticipated. Overbreading may cause consumers to pay shrimp
prices for excess bread crumbs. Excessive amounts of glaze (overglazing) can
deliberately be used to increase the apparent weight, and therefore the apparent value,
of the delivered product. In addition, some new treatment procedures by the seafood
industry, such as carbon monoxide/tasteless smoke, are being questioned for their
potential to deceive consumers. Since food safety and bioterrorism concerns have
taken precedence, regulatory agencies have been less able to maintain control of
The extent of this fraud is not well documented. The National Fisheries Institute
(NFI) has undertaken an initiative to promote economic integrity within the seafood
industry, concentrating on three primary areas:
!transshipment of products subject to antidumping and countervailing
!mislabeling of products or species substitution; and
!mislabeling of weights or counts of products.
The Food and Drug Administration (FDA) is the primary agency responsible for
ensuring that food sold in interstate commerce is properly labeled. FDA’s
jurisdiction covers seafood and the agency operates an oversight compliance
program, the Seafood Regulatory Program, for fishery products. Responsibility for
a food product’s safety, wholesomeness, identity, and economic integrity rests with
the processor or importer, who must comply with regulations promulgated under the
Federal Food, Drug and Cosmetic Act (FFDCA) and the Fair Packaging and Labeling
Congress is facing questions of whether the law applicable to fraudulent seafood
sales and marketing is clear and enforceable, whether agency enforcement efforts
targeting seafood fraud are adequate, and whether the penalties for seafood fraud are
a deterrent. Congress may become involved in oversight of how federal agencies are
addressing these issues, and legislation related to these concerns may be considered.
In the 110th Congress, provisions have been introduced in H.R. 3115 and H.R. 3610
that would amend the FFDCA to restrict the use of carbon monoxide in meat,
poultry, and seafood. This report reviews recent incidents of fraud and deception and
examines related policy issues.
Fraudulent or Deceptive Practices.................................1
Mislabeling or Substituting Species............................1
Low Weights or Undercounting...............................6
Over-Treating or Added Water Weight.........................6
Transshipment to Avoid Import or Customs Duties...............8
Current Law and Congressional Interest............................9
Federal Food, Drug, and Cosmetic Act........................10
Fair Packaging and Labeling Act.............................11
State Regulation of Seafood Labeling.........................12
Customs and Border Protection..............................12
List of Tables
Table 1. Examples of Commonly Substituted Seafood.....................3
Combating Fraud and Deception
Media attention has focused on recent incidents of fraud relating to seafood —
restaurants knowingly serving lower-priced fish than identified on menus, lower-
priced species marketed commercially as higher-priced species, packaged weights of
seafood less than labeled weights, and extra water added to seafood to increase total
product weight — raising public concern. In some instances, such practices may not
be intentional, and the extent of fraud is not well documented. These occurrences
have the potential to erode consumer confidence in seafood generally, potentially
lowering Americans’ consumption of seafood. Congress is facing questions of
whether the law applicable to fraudulent seafood sales and marketing is clear and
enforceable, whether agency enforcement efforts targeting seafood fraud are
adequate, and whether the penalties for seafood fraud are a deterrent.
The primary federal law that addresses mislabeling is the Federal Food, Drug,
and Cosmetic Act of 1938 (FFDCA; 21 U.S.C. §§ 301 et seq.), which is administered
by the Food and Drug Administration (FDA). The FFDCA, as amended, gives FDA
authority over most food regulation and includes (1) definitions elaborating on the
concepts of adulteration and misbranding; (2) provisions for control over all labeling
of foods in interstate commerce; (3) detailed regulation of safety and wholesomeness
of foods; and (4) enforcement remedies available to the agency. In addition, the Fair
Packaging and Labeling Act (FPLA; 15 U.S.C. §§ 1451 et seq.) requires that
consumers of packaged commodities be provided with accurate information as to its
contents. Food products falling within the scope of the FFDCA that are introduced
into interstate commerce in violation of the FPLA and its regulations are deemed to
be misbranded within the meaning of the FFDCA. The Chemical Services Group of
the National Marine Fisheries Service (National Oceanic and Atmospheric
Administration, Department of Commerce) at the National Seafood Inspection
Laboratory in Pascagoula, MS, provides analytical testing to identify fish species.
Applicable law is discussed in detail below. Numerous issues concerning seafood
safety also exist; for more analysis of this aspect, see CRS Report RS22797, Seafood
Safety: Background and Issues, by Geoffrey S. Becker and Harold F. Upton.
Fraudulent or Deceptive Practices
Mislabeling or Substituting Species. The differences in the taste and
texture of different fish species’ flesh are subtle, and therefore it is frequently
difficult to identify a species in fillet form, especially after it is prepared for
consumption. Thus, it is relatively easy to substitute an inexpensive species for one
of higher value. Over the nine-year period of FY1988-FY1997,1 routine
examinations of seafood products by the National Marine Fisheries Service’s
National Seafood Inspection Laboratory (NSIL) found that 37% of fish and 13% of
other seafood (e.g., shellfish, edible seaweed) from randomly selected vendors were
Identification of fish flesh usually requires DNA testing. There is debate within
the seafood scientific laboratory testing community about the accuracy of public
DNA sequence databases. Public databases seldom use validated fish standards and
thus are likely to contain incomplete and/or inaccurate DNA sequences. Although
most regulatory agencies are developing DNA methods for species identification,3
some of these agencies continue to depend on a method that is unreliable for species
identification of heat-processed or dried fish products — isoelectric focusing
electrophoresis of soluble muscle proteins.4 Some U.S. seafood importers and
distributors employ private companies to conduct random testing to eliminate blatant
species substitution and minimize unintentional species substitution. Although DNA
methods for fish species identification are not yet officially recognized by FDA, the
agency is working with an international group, FISHBOL,5 to develop a qualified
database of DNA sequences from taxonomically verified fish specimens. This
database should be available for use within three years.
Fraud can be perpetuated in several ways. Unfair and deceptive trade practices
occur when restaurants misrepresent menu items to their patrons by substituting other
(often less desirable and less expensive) fish for an item described as a higher-valued
species. Fraud also occurs at the manufacturing level, as in American Samoa, where
six tuna cannery workers were convicted for their involvement in falsely labeling
hundreds of cans as albacore tuna when the cans were actually filled with less
expensive wahoo, and selling them to local stores.6 Some distributors have
knowingly sold restaurants and retailers lower-valued species, claiming that they are
different species of higher value.
1 In September 2008, NSIL was contacted by CRS, but was unable to provide more recent
2 See [http://sst.ifas.ufl.edu/22ndAnn/file08.pdf].
3 Rosalee S. Rasmussen and Michael T. Morrissey, “DNA-Based Methods for the Identifi-
cation of Commercial Fish and Seafood Species,” Comprehensive Reviews in Food Science
and Food Safety, v. 7 (2008): 280-295.
4 For a technical description, see [http://www.chemsoc.org/ExemplarChem/entries/2003/
leeds_chromatography/chromatography/ief.htm]; also see [http://microbac.com/technical_
5 See [http://www.fishbol.org/index.php]. The Fish Barcode of Life (FISHBOL) Initiative
is a global effort to assemble a standardized reference DNA sequence library for all fish
species, and functions as a portal to the more comprehensive BoLD (Barcode of Life
6 “Wahoo Scam Yields Six Employees Sentenced to Probation,” Samoa News (June 23,
While species substitution may be intentional for certain species and products
because of their differing values, it also occurs unintentionally where species
identities are easily mistaken. Table 1 provides a list of some commonly substituted
species. Additional instances of mislabeling include imported farmed salmon being
falsely identified as wild Alaska salmon and frozen seafood being marketed as fresh
product, as well as confusion over seafood being marketed as “organic.” Since large
quantities of seafood are imported for U.S. consumption, some portion of the
mislabeling problem undoubtedly originates with foreign suppliers. To address this
concern, FDA has issued an import alert on species substitution, providing guidance
to agency field personnel regarding the manufacturers and/or products at issue.7
Asian catfish (basa and tra) may illustrate the magnitude of the problem. Although
import volumes exceed 50 million pounds annually for these species combined, they8
are difficult to find correctly identified in the domestic marketplace.
Table 1. Examples of Commonly Substituted Seafood
(less expensive products are in column B)
Red Snapper Rockfish
Mahi Mahi Yellowtail (Seriola lalandi)
Swordfish Mako Shark
Orange Roughy Oreo Dory or John Dory
Cod Alaska Pollock
Halibut Sea Bass
Dover Sole Arrowtooth Flounder
Red Drum Black Drum
Snapper (Lutjanus sp.) Tilapia
Grouper Basa or tra
Lake or Yellow Perch White Perch or Zander
Caviar (Sturgeon species) Paddlefish or other fish roe
Walleye Sauger or Alaska Pollock
Chum Salmon Pink Salmon
Salmon Steelhead Trout
Pacific salmon Atlantic salmon
Blue Crabmeat Imported Crabmeat
Wild-Caught Salmon Farm-Raised Salmon
Source: Table contents modified from [http://www.cfsan.fda.gov/~frf/econ.html].
Problems can arise from substitution at the restaurant level, misrepresentation
by the restaurant supplier, or product misidentification anywhere in the harvesting
and processing system. It is often difficult to determine who is at fault, especially if
there is collusion. One recent study, based on an analysis of mitochondrial DNA
sequences, revealed that 77% of the fish sold in the U.S. marketplace as red snapper,
7 For FDA import alert #16-04, see [http://www.fda.gov/ora/fiars/ora_import_ia1604.html].
8 For an example of mislabeling these imports, see [http://agi.alabama.gov/press_releases/
ma y-19-2006---s p a r k s -w a r n s -g u l f -c o a s t -b u s i n e s s e s --r e s t a u r a n t s - o f - m i s l a b e l e d - b a s a ? p n = 2 ] .
Lutjanus campechanus, belonged to other species of the Lutjanidae family, and could
not legally be labeled as “red snapper.”9 In early 2007, Alabama agriculture
inspectors targeted 35 Gulf of Mexico restaurants and seafood markets for sampling
after a Mobile, AL, television station used DNA testing and found that only one in
ten samples from restaurants advertised as grouper actually were this fish.10 Alabama
state law makes a restaurant or distributor subject to a fine of $5,000 per offense for
selling falsely labeled seafood products. On September 3, 2008, the Florida Attorney
General’s Office announced a settlement with Sysco Food Services — West Coast
Florida, Inc., requiring the distributer to refrain from marketing to its restaurant
clients any items described as grouper without taking commercially reasonable steps
to determine that the item is genuine.11 This legal action was initiated after a similar
media investigative report in Tampa, FL, discovered that 17 of 24 area restaurants
appeared to be selling less expensive species as grouper.12 Media investigations
have not been limited to the Gulf area.13 Because the laboratories that tested fish
samples for media inquiries all used DNA sequencing methods and made fish species
identifications based on DNA sequences in public databases, there is debate within
the seafood scientific laboratory testing community about the accuracy of these media
reports. A more recent study of New York City restaurants and markets used DNA
barcode technology14 to determine that 14 of 56 samples collected were incorrectly
labeled as higher-priced fish.15
Common Names of Fish. The correct use of names is crucial for properly
identifying seafood. Because one species may have different vernacular names in
different regions and because different species may be called by the same vernacular
name, standard market names for seafood products are needed to avoid confusion.
Common names of fish species have been standardized, often by professional
9 P.B. Marko, et al., “Mislabelling of a Depleted Reef Fish,” Nature, v. 430(2004):309-310.
FDA policy states that labeling or sale of any fish other than Lutjanus campechanus as red
snapper constitutes a misbranding in violation of the FFDCA.
10 See [http://wkrg.com/news/article/whats_on_your_plate/3561/] and [http://wkrg.com/
11 See [http://myfloridalegal.com/newsrel.nsf/newsreleases/C67E4A15E6C1A3EA852574
12 See [http://pqasb.pqarchiver.com/sptimes/access/1230334761.html?dids=1230334761:
K RUEGER&pub=St .+Pet e r s burg+Times&edition=&startpage =1.A&des c=% 27Gr ouper
13 Others have been reported in Portland, OR, [http://www.kptv.com/print/11072970/
detail.html]; and in Phoenix, AZ, [http://www.kpho.com/print/10371007/detail.html], for
14 DNA barcoding is a relatively new technique that uses a short DNA sequence from a
standardized and agreed-upon position in the genome as a molecular diagnostic for species-
level identification. For additional information, see [http://www.barcoding.si.edu/].
15 John Schwartz, “Fish Tale Has DNA Hook: Students Find Bad Labels,” The New York
Times, August 22, 2008. Available at [http://www.nytimes.com/2008/08/22/science/22fish.
societies.16 FDA and the National Marine Fisheries Service (NMFS) have cooperated
to develop “The Seafood List,” compiling existing acceptable market names for
imported and domestically available seafood.17 In 1988, FDA published the FDA
Guide to Acceptable Market Names for Food Fish Sold in Interstate Commerce
(“The Fish List”) to provide an authoritative source of common names to establish
order in the marketplace and reduce confusion among consumers. In 1993, FDA
published an updated, expanded “Seafood List,” which includes invertebrate species
(mollusks and crustaceans) as well as finfish. The frequently updated Seafood List
reflects what FDA considers the most appropriate market names for the identification
and labeling of seafood and is the agency’s primary guidance for naming seafood
sold in interstate commerce.
Two main provisions cover the naming of fish — Section 403 of the Federal
Food, Drug, and Cosmetic Act of 1938 (FFDCA), which addresses misbranded food,
and 21 C.F.R. § 102.5, which sets forth general principles for common or usual
names for non-standardized food. A common or usual name is the “prevalent and
meaningful name by which consumers ordinarily identify the food.”18 Use of either
the acceptable market name or the common name in labeling seafood products
assures that identity labeling of the seafood will comply with FDA and National
Marine Fisheries Service regulations. FDA discourages the use of vernacular names
as this practice may cause seafood to be misbranded.
An example of this concern arose several years ago when increasing imports of
basa (Pangasius bocourti) from Vietnam were marketed in the United States as
“catfish,” causing confusion with domestically produced Ictalurid catfish. FDA
guidance formerly listed a number of fish other than those from the family
Ictaluridae with the term “catfish” in their names. This prior guidance reflected what
FDA believed were names for seafood that could be used by importers and domestic
distributors and sellers consistent with the food naming provisions of the FFDCA.
To address this confusion, § 10806 of P.L. 107-171 (Farm Security and Rural
Investment Act of 2002) amended § 403 (the food misbranding provision) of the
FFDCA (21 U.S.C. § 343) to provide that a food shall be deemed to be misbranded
“[i]f it purports to be or is represented as catfish, unless it is fish classified within the
family Ictaluridae.” Although additional concern relates to the use of “lobster” in
describing items generally identified as “langostinos,”19 the extent of this problem is
Country-of-Origin Labeling. Mislabeling of the country of origin is another
concern. Without labeling, consumers would rarely be able to distinguish a product’s
country of origin; labeling fish falsely as to country of origin removes the cachet from
16 For example, see American Fisheries Society, Common and Scientific Names of Fishes
from the United States, Canada, and Mexico, Special Publication 29, 6th edition (Bethesda,
MD: July 2004), 386 p.; and American Fisheries Society, World Fishes Important to North
Americans, Special Publication 21 (Bethesda, MD: 1991), 243 p.
17 See [http://www.cfsan.fda.gov/~frf/seaintro.html].
18 63 Fed. Reg. 20,148 (April 23, 1998).
19 See [http://www.lawfuel.com/show-release.asp?ID=3593].
more desirable products, driving down the more desirable products’ market price.
Importers may falsely claim their seafood product is from a country where seafood
products may be recognized as of higher quality than the actual source country.
Particularly for seafood, some difficult questions relate to the meaning of the term
“country of origin.” For example, is product origin best represented by where the
seafood was caught, the flag of the harvesting vessel, where the harvest was first
landed, where the product was first processed, or where it was last or secondarily
processed? Following the terrorist attacks on the World Trade Center on September
including recognition of the advantages of a complete traceability program for
seafood from producer to customer so that the source of and liability for any
mislabeling can be more easily identified.20
In October 2004, the Agricultural Marketing Service (AMS), U.S. Department
of Agriculture (USDA), promulgated an interim final rule requiring certain retailers
and their suppliers to notify customers of the country of origin of wild and farm-
raised fish and shellfish.21 AMS reopened this rule for additional comment in June
2007,22 but has not indicated when a final rule may be promulgated. USDA has
entered into agreements with states having existing enforcement infrastructure to
assist in compliance reviews for fish and shellfish. Only USDA is able to initiate
enforcement actions against a person found to be in violation of the law, as this
statute does not provide for a private right of action. For more information on
country-of-origin labeling, see CRS Report 97-508, Country-of-Origin Labeling for
Foods, by Geoffrey S. Becker.
Low Weights or Undercounting. Inaccurate (low) counts or net weights
(“short weighting”) result in consumers receiving less for their money than advertised
and anticipated. These instances, although commonly reported, also constitute
mislabeling offenses under the FFDCA. The seafood community recognizes this
problem to be of much greater concern than species substitution, costing legitimate
businesses sales and reduced confidence in their true-packaged products. As part of
its economic integrity initiative (see “Industry Initiatives,” below), the National
Fisheries Institute reported that, in the year preceding August 2008, it sent more than
Over-Treating or Added Water Weight. The FDA standard for breaded
shrimp requires that such a product contain at least 50% shrimp. Overbreading may
cause consumers to pay shrimp prices for excess bread crumbs. Frozen fillets,
shrimp, crab legs, and other products are normally protected from dehydration
(freezer burn) while frozen by the application of a light glaze of ice, and the water
weight of this glaze is not included in the stated product weight. Excessive amounts
20 Ami Petersen and David Green, Seafood Traceability: A Practical Guide for the U.S.
Industry, North Carolina Sea Grant, Report UNC-SG-06-04, 28 p.; available at [http://
21 7 C.F.R. Part 60; See 69 Fed. Reg. 59708-59750 (October 5, 2004).
22 72 Fed. Reg. 33851 (June 20, 2007).
23 John Sackton, Seafood.Com News, August 12, 2008.
of glaze (overglazing), not compensated for in this manner, can deliberately be used
to increase the apparent weight, and therefore the apparent value, of the delivered
Sodium tripolyphosphate (STPP) is used in the seafood industry to retain
moisture in the product so as to prevent freezer burn and, when properly used, can
be a legitimate means for aiding processing. However, STPP can be misused to
retain excess moisture in seafood products. Prolonged soaking of seafood in an
STPP-water solution can result, for example, in Atlantic sea scallops or shrimp with
excessive water. Such excess water adds to the product’s total weight, resulting in
misrepresentation when seafood prices are charged for water and, in the case of
shrimp, the product is bumped into a larger weight class where a higher price per
pound can be charged. Seafood treated with STPP or other water-retaining chemicals
must be accurately labeled to identify this treatment. However, FDA has found it
difficult to set percent-moisture guidelines and labeling requirements for treated
scallops,24 and no moisture guidelines or standards exist for shrimp. Some critics
suggest that the use of all water retention chemicals (primarily phosphates) should
be prohibited in fish and shellfish.
Altered Color. Fish fillets can be treated with carbon monoxide (CO) to give25
fish flesh a fresher-appearing reddish tint. The growing use of CO (also referred
to as “tasteless smoke” or TS) as a “pigment fixative” has alarmed some consumer
advocates who say it deceives shoppers who depend on color to help them avoid
spoiled fish. Seafood industry representatives assert that TS/CO is a legitimate
preservative, and the FDA has said it has no questions regarding an industry
determination that TS/CO is a substance generally recognized as safe.26 An
additional consumer safety issue occurs when the flesh of certain species such as tuna
develops toxic levels of histamine through time and/or temperature abuse — with CO
treatment there are no visual cues to indicate when such flesh may be decomposed
and toxic. Consumer advocates have urged FDA to conduct a formal evaluation of
this treatment’s impact on consumer safety. FDA considers tuna to be misbranded
if it is treated with TS/CO but not labeled to indicate that it contains a preservative27
and thus purports to be unprocessed, fresh, or fresh-frozen tuna. Thus, all processed
seafood items involving TS/CO require label declarations under 21 C.F.R. Part28th
101.22(j). In the 110 Congress, provisions have been introduced in H.R. 3115 and
H.R. 3610 that would amend the FFDCA to restrict the use of CO in meat, poultry,
24 See [http://www.fda.gov/bbs/topics/ANSWERS/ANS00422.html].
25 See [http://www.sushiman.net/ahi/carbon_monoxide_trea.htm].
26 See CRS Report RL34247, Federal Regulation of Substances Generally Recognized As
Safe (GRAS) and the Use of Carbon Monoxide in Packaging for Meat and Fish, by Vanessa
K. Burrows and Cynthia Brougher.
27 See FDA Import Bulletin #16B-95, available at [http://seafood.ucdavis.edu/Guidelines/fda
28 See [http://www.cfsan.fda.gov/~rdb/opa-g015.html].
Some aquaculture operations use the color additives canthaxanthin and/or
astaxanthin in feed to impart a more orange color to fish flesh of salmon and/or
trout.29 The flesh of the farmed varieties of these fish would, if not for these color
additives, be a less-appealing paler color. Under specified conditions, use of these
additives in feed for salmonid fish is legal as long as fish are properly labeled to
identify that this treatment has been used.30 Farmed salmon and trout, where
additives have been used to enhance color, are susceptible to being improperly
labeled and this product deceptively and fraudulently marketed as “wild” fish.
Transshipment to Avoid Import or Customs Duties. Transshipment
occurs when foreign producers ship goods to a second country en route to the United
States. Although transshipment is generally legal and commonly used in the ordinary
course of business, it is illegal if it is done for the purpose of circumventing duties
and other applicable trade restrictions. It has been reported that shrimp from China
have been shipped to the United States by way of Indonesia to avoid paying
antidumping duties of 112% levied by the United States on shrimp imported from31
China, but not on shrimp imported from Indonesia.
In 1986, the Southeastern Fisheries Association, funded under the Saltonstall-32
Kennedy Act grant program, introduced a Seafood Product Quality Code program
in one of the first efforts by a fisheries trade association to better inform wholesale33
and retail seafood buyers. The code, an educational and promotional concept,
catalogs the industry’s recommended measures for product quality for individual
species to better inform buyers and to encourage more industry quality compliance
by facilitating communications between buyers and sellers. Compliance with the
code is a voluntary means whereby seafood sellers can indicate that they provide
consumers a very safe, high-quality product.
In October 2006, concerns that seafood fraud had begun to and could
increasingly erode consumer confidence in seafood led the National Fisheries
Institute (NFI) to announce an initiative to promote economic integrity within the34
seafood industry. Implementation of this initiative commenced in summer 2007,
concentrating on three primary areas:
29 Fereidoon Shahidi, Metusalach, and Joseph A. Brown, “Carotenoid Pigments in Seafoods
and Aquaculture,” Critical Reviews in Food Science and Nutrition, v. 28, no. 1 (1998): 1-
30 21 C.F.R. § 73.35; 21 C.F.R. § 73.75.
31 See [http://www.atimes.com/atimes/Southeast_Asia/HC22Ae01.html]. Further informa-
tion is contained in out-of-print CRS Report RS21776, Shrimp Trade Dispute: Chronology,
by Eugene H. Buck, available from the author.
32 For further information, see CRS Report RS21799, Saltonstall-Kennedy Fishery Funding,
by Eugene H. Buck.
33 See [http://www.southeasternfish.org/SPQC/product%20quality%20code.pdf].
34 See [http://www.aboutseafood.com/assets/files/nfi_annrpt06d2.pdf].
!transshipment of products subject to antidumping and countervailing
!mislabeling of products or species substitution; and
!mislabeling of weights or counts of products.
NFI officially launched a Better Seafood Bureau on July 5, 2007.35 NFI is pursuing
their initiative by (1) obtaining commitments from the CEOs of NFI member
companies to comply with current law and regulation, and (2) developing an
accountability system that would reward “good actors” and identify “bad actors.”
Such an accountability system involves screening by the Better Seafood Bureau,
independent third-party audits of processes and products, and a member review
Current Law and Congressional Interest
With the increasing media attention to this issue, Congress may face questions
concerning current law applicable to seafood marketing and fraud. The issues to
consider may include whether:
!current law applicable to fraudulent seafood sales and marketing is
clear and enforceable;
!federal agency enforcement efforts targeting seafood fraud are
!the penalties for seafood fraud offenses are a deterrent; and
!the resources for federal agency enforcement are sufficient.
FDA is the primary agency responsible for ensuring that food sold in interstate
commerce is properly labeled. The agency’s jurisdiction includes seafood and the
agency operates an oversight compliance program, the Seafood Regulatory Program,
for fishery products. Responsibility for a food product’s safety, wholesomeness,
identity, and economic integrity rests with the processor or importer, who must
comply with regulations promulgated under the FFDCA and the FPLA. The agency
has the authority to detain or temporarily hold food being imported into the United
States while it determines if the product is misbranded or adulterated. The agency
also has the authority to take legal action against sellers of adulterated and
misbranded seafood and to recommend criminal prosecution or injunction of
responsible firms and individuals. However, enforcement of economic fraud and
labeling laws may be a lower FDA priority relative to protecting the health and safety
of the U.S. food supply.36
The adequacy of agency funding is also an issue, especially whether the agency
has adequate resources so that it can more systematically monitor for economic fraud
and mislabeling, better determine the scope and scale of these types of problems, and
develop new programs that address these concerns. About 85 of the agency’s roughly
35 For more information, see [http://www.aboutseafood.com/about/about-nfi/better-seafood-
36 “Species Substitution: Labeling Law Not An FDA Priority...,” Santa Monica Seafood
SeaLog (April 2006).
1,350 inspectors work primarily with seafood. The adequacy of agency funding is
regularly raised as a concern when agency appropriations are considered. For
example, in testimony before the Senate Committee on Appropriations, one industry
We believe the most important issue on the table today is whether FDA is
adequately funded, has sufficient staff with scientific training and experience...,
has research dollars available to address key questions, has strong working
agreements with the States to support as needed and has the commitment of the37
President and the Congress.
Federal Food, Drug, and Cosmetic Act. The FFDCA attempts to keep
interstate commerce free from misbranded (i.e., mislabeled) articles and to protect
the public from inferior foods resembling standard products but marketed under38
distinctive names. The governing statute for naming food is the FFDCA. The
FFDCA, as amended, gives FDA authority over most food regulation and includes:
!a series of definitions elaborating on the concepts of adulteration and
!control over all labeling of foods traveling in interstate commerce;
!detailed regulation of issues concerned with safety and
wholesomeness of foods; and39
!enforcement remedies available to the agency, when needed.
An article is deemed misbranded if, among other things, its labeling is false or
misleading or it is offered for sale under the name of another food.40 An article is
considered mislabeled when the label makes “no representation as to definition and
standard of quality,” unless the label bears the common or usual name of the food,41
if there is one.
FDA has issued regulations that outline general principles for common or usual
names of food. The common or usual name must:
accurately identify or describe, in as simple and direct terms as possible, the
basic nature of the food or its characterizing properties or ingredients. The name
shall be uniform among all identical or similar products and may not be
confusingly similar to the name of any other food that is not reasonably
encompassed within the same name. Each class or subclass of food shall be
37 Testimony by Thomas E. Stenzel, President and CEO of the United Fresh Produce
Association, before the Senate Committee on Appropriations, March 12, 2007, in a special
hearing on “Food Safety.”.
38 35A Am. Jur. 2d Food § 25 (2006).
39 For more information, see CRS Report RL33559, Food Safety: National Uniformity for
Food Act, by Donna V. Porter.
40 21 U.S.C. § 343. FDA further regulates this area of “Misbranding” in 21 C.F.R. § 101.18.
41 21 U.S.C. § 343(i)(1).
given its own common or usual name that states, in clear terms, what it is in a42
way that distinguishes it from different foods.
A common or usual name of a food may be established by common usage or by
regulation.43 For example, FDA promulgated a regulation establishing that Pacific
whiting or North Pacific whiting is the common or usual name of the food fish
Merluccius productus.44 Most common or usual names, however, are established
through common usage.
Although the agency’s Seafood List includes “vernacular” names for some
species, use of vernacular names is discouraged by the agency. The use of a45
vernacular name may cause a seafood to be misbranded under the FFDCA. For
example, the agency has issued specific guidance on using “red snapper” as a market
name. The agency’s policy states that “the labeling or sale of any fish other than
Lutjanus campechanus as red snapper constitutes a misbranding in violation of the46
Under the FFDCA, species substitution also violates FDA’s prohibition against
adulteration. A food is deemed adulterated “if any substance has been substituted47
wholly or in part.” The marketing of a less valuable fish as one of higher value is
a substitution and can result in a finding of adulteration.
Fair Packaging and Labeling Act. The FPLA requires that consumers of
packaged commodities be provided with accurate information as to its contents.
Congress passed the FPLA to “enable consumers to obtain accurate information as48
to the quantity of the contents and to facilitate value comparisons.” Under the
FPLA, it is unlawful for persons engaged in labeling or packaging of consumer
commodities “to distribute or to cause to be distributed in commerce any such
commodity if such commodity is contained in a package, or if there is affixed to that49
commodity a label, which does not conform to the provisions” of the act.
The FPLA requires each label to identify the commodity and the name of its
manufacturer, packer, or distributor and the net quantity of contents, in terms of50
weight or mass, measure, or numerical count. Food products, falling within the
scope of the FFDCA, introduced into interstate commerce in violation of the FPLA
42 21 C.F.R. § 102.5(a).
43 21 C.F.R. § 102.5(d).
44 21 C.F.R. § 102.46.
45 Sec. 540.750 Common or Usual Names for Seafood in Interstate Commerce (CPG
46 Sec. 540.475 Snapper — Labeling (CPG 7108.21).
47 21 U.S.C. § 342 (b)(2).
48 15 U.S.C. § 1451.
49 15 U.S.C. § 1452.
50 15 U.S.C. § 1453(a).
and its regulations are deemed to be misbranded within the meaning of the FFDCA.51
State Regulation of Seafood Labeling. In addition to federal
requirements, some states also regulate the labeling and branding of seafood under
state versions of the FFDCA. For example, in Alaska “no person may label or offer
for sale any food fish product designated as halibut, with or without additional
descriptive words, unless the food fish product is Hippoglossus or Hippoglossus
stenolepsis.”52 In California, an individual who sells any commodity in less quantity53
than what is represented is guilty of a misdemeanor offense.
Customs and Border Protection. Transshipment to avoid paying import
or customs duties is illegal whenever it circumvents trade laws and other applicable
trade restrictions.54 The applicable law and regulation may vary, depending upon the
trade agreement existing between the United States and another nation as well as the
status of any antidumping and countervailing duties currently in force for particular
products imported from designated nations.
Both consumers and some producers could incur economic losses in cases of
fraud or deception, with short-term gains to those who sell mislabeled merchandise.
Although it is not clear whether the amount of fraud and deception in seafood sales
and marketing is increasing, media attention to this issue has raised its profile with
the public. The economic integrity initiative of the National Fisheries Institute has
the potential to increase attention within the seafood industry to this issue as well as
to address eroding consumer confidence in fair marketing of seafood produce. In
addition, third-party certification bodies — for example, the Marine Stewardship555657
Council, Naturland, and the Aquaculture Certification Council — have the
potential to address fraud and deception concerns where certification requires
producers to adhere to specific protocols and standards for catching/raising and
processing product. However, the potential for these groups to self-enforce their
standards has not been demonstrated.
In response to increased public concern, Congress is facing questions
concerning current law applicable to seafood marketing and fraud. These questions
include whether current law applicable to fraudulent seafood sales and marketing is
clear and enforceable, whether federal agency enforcement efforts targeting seafood
fraud are adequate, and whether the penalties for seafood fraud offenses are a
deterrent. In addition, increased funding may be an issue so that agencies can more
51 15 U.S.C. § 1456(a).
52 Alaska Stat. § 17.20.045.
53 Cal Bus & Prof Code § 12024.
54 Section 592 of the Tariff Act of 1930 (19 U.S.C. § 1592).
55 See [http://www.msc.org/html/content_465.htm].
56 See [http://www.naturland.de/certification_aquaculture.html].
57 See [http://www.aquaculturecertification.org/].
systematically monitor the situation, better determine the scope and scale of this type
of problem, and develop new programs that address this fraud. A GAO report on
economic fraud in the seafood industry is tentatively scheduled for release early in
2009, and may provide impetus for additional attention to FDA’s role in addressing
For additional background on broader legislative efforts to address seafood
marketing and safety concerns, see the “Marketing” and “Seafood Safety and
Nutrition” sections of CRS Report RL33813, Fishery, Aquaculture, and Marine
Mammal Legislation in the 110th Congress, by Eugene H. Buck.