Aug. 21, 2008

New Jersey Woman Can Sue Over Chicken-of-the-Sea’s Mercury Content; FDA’s Minimal Action Does Not Pre-empt State Law, Court Rules

Statement of Adina Rosenbaum, Public Citizen Attorney

Public Citizen is pleased that the U.S. Court of Appeals for the Third Circuit has agreed that the Food and Drug Administration’s (FDA) brochures about the dangers of mercury in fish cannot justify shutting the courthouse doors to consumers who bring claims under state law. Reversing a lower court decision, the court revived a lawsuit brought by Public Citizen client Deborah Fellner, a New Jersey woman who contracted severe mercury poisoning after making Tri-Union Seafoods’ Chicken-of-the-Sea canned tuna fish a major part of her diet.

We argued that the FDA’s few informal actions on the topic – a brochure giving advice to pregnant and nursing women and young children about how much seafood is safe to eat, and non-binding guidance to its enforcement division – do not pre-empt Fellner’s state-law claims. The court rightly agreed: “The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect,” wrote Judge Walter K. Stapleton.

We’re particularly pleased that the court refused to be swayed by an FDA letter, written in response to a private lawyer for the canned tuna industry, claiming that state-law claims like Ms. Fellner’s are pre-empted. (The FDA started regularly favoring pre-emption during the Bush administration.) The court noted that the wording of the FDA’s letter bore a “striking resemblance” to the tuna industry’s letter. “In the final analysis,” the court said, “this case involves an agency effort to preempt an area of law traditionally within the states’ police powers via informal letter, and to do so only after the conduct at issue in this case occurred.”

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