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Home , Ciguatera fish poisoning

Ciguatera: A Legal and Social Overview

DAVID W. NELLIS and GEOFFREY W. BARNARD

Introduction yellow or brassy, b) stripes, c) darker. crude but effective test. In the labora­ 2) Presence of isopod parasites in­ tory, a quantitive test for is Ciguatera is a disease produced in dicates nonciguatoxic fish. to observe the response to the injection humans as the result of eating certain 3) Raw flesh of ciguatoxic fish, es­ of a serially diluted flesh extract into a tropical marine fishes. Symptoms pecially the liver, tastes bitter or hot in mouse. typically include , , the mouth. In recent years it has been strongly , itching, and there may be a 4) Flies will not land on exposed suggested that ciguatoxin is derived tingling or numbness in the mouth, flesh of ciguatoxic fish. from a elaborated by the dino­ which later spreads to the arms and legs. 5) Silver or sweet potato turns black toxicus (Bagnis Often, cold objects seem hot and vice when boiled with ciguatoxic fish. et al., 1980). The has versa. Weakness and pain in the joints 6) Ciguatoxic fish have a brassy or typically been found living among ses­ may be present. Initially, high blood coppery odor. sile macroalgae or attached to dead coral pressure and may be pres­ 7) Ciguatoxic fish have enlarged or detritus or rocks in shallow water. Pre­ ent, but in the progression of the bloated stomachs. sumably, herbivorous fish eat the algae disease, low blood pressure is common. 8) Ciguatoxic fish have yellow from the rocks and accumulate the tox­ In several cases, lowered blood pressure mucous or yellow inner linings of the in in their tissues. Carnivorous fish con­ can require hospitalization and even gullet. suming the subsequently produce death. Symptoms usually pass 9) Ciguatoxic fish have a green tint concentrate the toxin. within weeks, but may linger for to raw flesh. Historically, folklore belief is that months. 10) Suspected species with are ciguatera originates in areas of copper ciguatoxic. concentrations, either in natural out­ Folklore 11) Ants will not eat ciguatoxic fish. crops or on the copper sheathing of Some of the folklore regarding test­ 12) Ciguatoxic fish have tiny black sunken vessels. The copper is believed ing for ciguatera are: "veins" running throughout the flesh. to promote the growth of a certain type of "sea moss." This concept may have 1) Ciguatoxic fish have different But experience has demonstrated that some basis in fact in that a sunken vessel coloration than normal fish: a) more none of these can be considered reliable. may provide an ecological environment However, a test is available to the lay­ which favors the colonizing sessile algae man which is inconvenient but effective. that in turn would support G. toxicus. The flesh of a suspect fish may be fed Since ciguatoxin is chemically stable to a cat or mongoose because they re­ and is accumulated throughout the life ABSTRACT-Tropical marine fish consti­ spond to ciguatoxin similarly to man. of the fish, higher concentrations may tute a major source of nutrition to the in­ habitants ofmany developing nations ofthe The viscera of fishes (especially the occur in larger fish. This has led to Pacific and Caribbean regions. The occur­ liver) has higher concentrations of another piece of folklore: ''An individ­ rence ofciguatera, as well as the continual ciguatoxin than the flesh (Yasumoto and ual fish that is less than 10 percent of fear that ciguatoxin may be present in cer­ Scheuer, 1969). Using the liver rather the maximum size attained by the tain fish, limits the use ofmany potentially than muscle tissue for ciguatera testing species is usually safe." valuable species. Additionally, U.S. law may jeopardize the commercial value ofsuspect thus increases the sensitivity of this Analogously, species high in the food fish as dealers acknowledge the civil chain or older in age may carry larger liability risk associated with the sale of amounts of toxin. However, individual ciguatoxicfish. Overall, ciguatera results in David W Nellis is with the Virgin Islands Divi­ food preference and availability can the loss ofa renewable resource and threat­ sion of Fish and Wildlife, 101 Estate Nazareth, St. greatly alter these generalities. Conceiv­ ens the industry with potential liability suits Thomas, VI 00802. Geoffrey WBamard is United when harvesting those elements ofthe marine States Magistrate, U.S. District Court of the Virgin ably, a large carnivorous fish may con­ food ecosystem that are marginally risky. Islands, Box 770, St. Thomas, VI 00801. tain no significant toxin, while a small

2 Marine Fisheries Review omnivore may produce a clinical case acted, such as the Federal Food, Drug, contracted ciguatera fish ofpoisoning. Similarly, certain species, and Cosmetic Act of 1906, 34 Stat. 768, when she ate a platter of fish at the because of their dietary preferences, Americans have come to expect the defendant's restaurant. The evidence may pose a higher risk, while highest standards in goods sold for hu­ disclosed that the plaintiff, a long-time closely allied species do not. man consumption. resident of St. Croix, was aware that, The uneven, patchy distribution ofthe The Uniform Commercial Code, fol­ occasionally, persons eating fresh, local organism in the environment and ofthe lowed by most ofthe states and adopted fish are poisoned, and the jury, finding toxin in the ecosystem can lead to com­ in the Virgin Islands in 1965, provides that she knowingly assumed the risk, plex considerations in predicting the in Section 2-314 in pertinent part, found in favor of the restaurant. Judge toxicity of a food fish. The north side Maris, in sustaining the jury's verdict in of St. Thomas, Virgin Islands, is con­ (1) ...a warranty that the goods shall Bronson vs. Club Comanche Inc. 6 v.I. sidered to be safe from ciguatera, but be merchantable is implied in a con­ 683, 286 F. Supp. 21 (nc.Y.I. 1968) the south side has a high incidence in tract for their sale if the seller is a observed that: certain species. Meanwhile, St. Croix, merchant with respect to goods of that kind. Under this section the serving 40 miles to the south, is generally free for value of food or drink to be con­ (T)he form ofcontributory negligence ofciguatera. The , Lutjanus sumed either on the premises or else­ which consists in voluntarily and un­ jocu, is typically encountered on coral where is a sale. reasonably proceeding to encounter reefs and is regularly associated with an unknown danger, and which is ciguatera, while the mutton snapper, L. The Restatement of Torts, Second, commonly called assumption of risk, may be a defense in a case of strict analis, seen on the same reefs and sand Section 402A(2)a, also in effect in the liability such as this. Ifthe consumer flats, is deemed to be safe from cigua­ Virgin Islands, imposes strict liability is fully aware of the danger and never­ tera. The dog snapper includes algae­ on a seller offood, even though he may theless proceeds voluntarily to make eating fish in its diet, while the mutton have "exercised all possible care in the use of the product and is injured by snapper consumes sand-dwelling inver­ preparation and sale of his product." it he is barred from recovery. tebrates. This concept developed from the old A physical or chemical test for the English law which imposed criminal The defense of assumption of the risk presence of toxin has been unsuccess­ penalties on suppliers of "corrupt" food was also cited with approval in the later fully sought for over 20 years. The con­ and drink. case of Hoch vs. Ji?nture Enterprise centration of toxin present in the most Within the context of strict liability, Inc., 473 F. Supp.541 (D.C.Y.I. 1979), toxic fish is extremely small. The chal­ the courts have struggled with the prop­ where it was determined that full fac­ lenge of detecting this molecule is made osition that a seller of ciguatoxic fish tual development of all pertinent con­ more difficult by the lack of the toxin may be held responsible, even though siderations would be required for the available to researchers. Total toxin puri­ he has exercised all possible care in the jury to resolve the issue. fied by all researchers to date has been purchase and preparation of the fish and Another approach was suggested by less than 0.002 g. Even with this small could not in any event have determined ChiefJudge Christian in the case ofBat­ amount of material, the ciguatoxin whether the fish was toxic. tiste vs. St. Thomas Diving Club, 1979 molecule has been found to be a long To resolve this tension in the law be­ St. Thomas Supp. 164 (nc.v.I. 1979). chain polyether with hydroxyl groups tween strict liability and the inability to In this case the court examined two lines and a molecular weight of 1111 (Nukina determine toxicity despite the exercise of authority for dealing with injuries et al., 1984). Investigators have been at­ of all possible care, the courts have suffered from consuming food in a res­ tempting the difficult task of develop­ focused on the consumer's knowledge taurant, the "foreign-natural" test and ing a test for a still unidentified chemical of the ciguatoxic potential of the fish and the "reasonable expectations" test. that is only available in microgram have considered whether fish poisoning Under the "foreign-natural" test, the amounts after laborious extractions. was within the reasonable expectation presence of substances that are natural Because of the continued absence of of the consumer or whether the con­ to the ingredients, such as a piece of a convenient, reliable test, a careful but sumer knowingly assumed the risk. oyster shell in oyster stew, does not also fatalistic attitude is held by native Much of the litigation related to cigua­ breach the vendor's implied warranty seafood consumers in areas with cigua­ tera fish poisoning has taken place in the that the food is wholesome and fit. The tera: One should be careful about spe­ District Court of the Virgin Islands. No court, however, preferred the "reason­ cies, size, and geographic origin of a cases have been found in the jurispru­ able expectations" test because it per­ fish, but an occasional ciguatera intox­ dence of , though attorneys mits the jury to determine whether the ication is accepted as inevitable. licensed in that jurisdiction report that consumer could reasonably expect to results would be similar to those in the find the toxic substance in the fish. Virgin Islands. Of greater interest are the court's Legal Considerations In a case decided in 1968, shortly after observations in Battiste, supra with Since the turn of the century when the adoption of the Uniform Commer­ respect to the public policy considera­ pure food and drug legislation was en- cial Code in the Islands, the plaintiff tions.

48(4), 1986 3 This discussion leads the Court to the low ciguatera hazard. While the agents local people familiar with ciguatera gen­ public policy arguments raised by recognize the value of a warning on erally do not seek professional medical defendant. Certainly, the continued menus, they accede to the restaurant's serving of local fish by Virgin Islands assistance unless the symptoms become restaurants is a desirable economic concern that a warning would adverse­ critical. In this regard, St. Thomas is and gustatory goal. Unfortunately, the ly influence sales. One insurance agent probably typical of other islands where Court cannot ignore the competing required a warning sign on the premises ciguatera is a normally accepted risk concern that patrons of our restaurants and a warning notice on invoices of a associated with the eating of local fish. should be afforded notice of the risks inherent in the consumption of local fish market, which has since closed. A Consumers who prepare fish at home delicacies. The alternative is the res­ second fish market posted a warning attempt to reduce their risk by selecting taurants which, however small, are in sign but removed it after observing ad­ certain species, certain sizes, and reli­ the better position to spread the risk, verse customer response. Insurance ad­ able vendors. must bear the risk. Perhaps the most justors and underwriters typically set­ facile solution would be for menus to In a series of48 interviews with fish­ contain a warning about the possi­ tle ciguatera poisoning claims for small ermen, most ofthose interviewed in the bility of fish poisoning. This is not a amounts rather than taking the issue northern U.S. Virgin Islands said they particularly appetizing suggestion, but before the courts. avoided fishing certain areas due to it would solve the problem of notice In international trade, the Food, Drug ciguatera. On St. Croix, only one fish­ at little cost to the restaurant. It can hardly be argued that such a warning and Cosmetic Act requires that food im­ erman restricted his fishing areas. How­ would substantially injure the local porters prove the safety and wholesome­ ever, fishermen always claimed they did fish industry since it is a fair statement ness of foodstuffs entering the United not alter their fishing methods due to that many restaurant patrons today States. Federal agencies have not yet ad­ concern for ciguatera. In the northern order local fish despite their aware­ dressed the question of importing poten­ Virgin Islands, all fishermen released ness of danger of fish poisoning. The warning would simply insure that all tially ciguatoxic fish. With increasing certain fish that could be ciguatoxic, patrons have the benefit of such populations of Caribbean peoples re­ mainly barracuda and amberjack. knowledge. siding in the United States and encour­ Thirty-eight percent ofthe fishermen on agement of trade via the Caribbean St. Croix released fish at some time due Basin Initiative, it is likely that tropical to ciguatera concern. In order to insulate the valuable local marine fishes with potential for cigua­ No interviewed fisherman declined to fishing industry from liability, it would tera will be increasingly imported to the capture certain abundant but potential­ seem fundamentally important to ensure United States. ly ciguatoxic fish. Thus, kingfish would that a form of warning be used at every The impact of ciguatera on a small be caught and marketed from an area link of the commercial chain, from the island society is significant (Olsen et al., of known ciguatera incidence. Suspect fisherman to the wholesaler to the re­ 1984). Tacket' estimated that the an­ ciguatoxic yellowfin are caught tailer and/or the restaurant. In Puerto nual incidence of fish re­ in large numbers when they become Rico, there are prominently posted ported to the emergency room in St. easily susceptible to capture in breeding warnings at places where fish are sold Thomas, Virgin Islands, was around 4.2 aggregations. When asked if some cus­ pursuant to the act creating the Corpora­ cases per thousand population. In a tomers avoided certain fish due to cigua­ tion for the Development and Adminis­ household survey, she reported a level tera concerns, all but one of the fisher­ trator of the Marine, Lacustrine, and of 7.3 per thousand, indicating that 43 men said yes. When asked to predict Fluvial Resources, 12 L.P.R.A. Section percent of the cases are not reported to what percentage their annual income 1351. It would also seem prudent that the the emergency room. McMillan et al. could be increased by a sure test for insurer insist on such warnings before (1980) found from a Virgin Islands tele­ ciguatera, the response ranged from 0 underwriting the business risk. phone survey that 22 percent of all to 75 percent. Future litigation will no doubt address households surveyed experienced at Although the fish marketing industry the adequacy of the warning, relative to least one poisoning in 5 years. Taylor is small in the Virgin Islands, ciguatera which species are suspect and the fre­ (cited by Tacket1) reported that this is of major concern to all who sell local quency of ciguatera poisoning in certain figure was as high as 31 percent in fish. All businesses avoid selling certain species. Nonetheless, the use of warn­ homes where fish was eaten. Surveys of fish (barracuda, amberjack, cubera, and ings would substantially reduce the like­ ciguatera incidence are subject to con­ large dog snappers) and buy only from lihood of an adverse verdict and a high siderable bias. Many of the households reliable sources. award of damages in favor of the un­ in which large amounts oflocal fish are All vendors claimed to be willing to suspecting tourist. consumed do not have telephones, and talk freely with customers about cigua­ The major Virgin Islands insurance tera. They expressed concern over legal underwriters are not particularly con­ liabilities associated with the sale of cerned over the liability associated with ciguatoxic fish and about loss of cus­ ciguatera in restaurants. The agents 'Tacket, C. Studies ofepidemiological and clinical tomers due to possible ciguatera. All aspects of ciguatera. Unpubl. presentation, 1981 usually determine that restaurants use Ciguatera Conference, San Juan, P.R. Center for businesses claimed they would change "safe" species of fish from areas with Disease Control, Atlanta, Ga. their present marketing practices ifa test

4 Marine Fisheries Review for ciguatera was available. Their will­ ly sought by sport fishermen and divers Literature Cited ingness to pay for a ciguatera test varied and are highly esteemed at the dining Bagnis R., S. Chanteau, E. Chungue, 1. M. from $1.00 to $6.00 per fish. Of 12 table. Hurtel, T. Yasumoto, and A. Inoue. 1980. Origins of : A new restaurants contacted, all selected only When large predatory fish high in the dinoflagellate, Adachi certain species offish from selected ven­ are not harvested due to and Fukuyo, definitely involved as a causal agent. Toxicon 18:199-208. dors. Two of the restaurants had a policy ciguatera, they in turn compete with McMillan, 1. P., H. R. Granade, and P. Hoffman. of preparing only imported fish that fishermen for other harvestable fish that 1980. Ciguatera fish poisoning in the United were judged to be without risk. would otherwise be available to con­ States Virgin Islands: Preliminary studies. 1. College Virgin lsI. 6: 84-1

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