Public Citizen won another victory against pre-emption in the case of a New Jersey woman who sued Chicken-of-the-Sea after suffering severe mercury poisoning from eating canned tuna. Chicken-of-the-Sea and the FDA tried to argue that the woman’s case should be thrown out because the FDA had issued an advisory brochure warning of canned tuna’s potentially hazardous heavy-metal content.
According to this pre-emption argument, this brochure, along with a letter from the FDA echoing Chicken-of-the-Sea’s argument that the case should be thrown out, takes away the consumer’s right to sue. In fact, the judge in this case even pointed out the suspicious resemblance in language between the letters written by the tuna industry’s lawyer and the FDA. And we thought it was FDA’s job to protect consumers from the industries, not the other way around.
Regardless of whether our tuna-eater wins or loses her case, this right to hold the makers of faulty products accountable is a fundamental right that Public Citizen continues to defend.
Still a little foggy on the problems preemption poses? Fret not. Public Citizen’s Litigation Group director Brian Wolfman wrote a report titled “Why preemption proponents are wrong“; in the report, Wolfman explains,
When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the defendant will probably assert that federal law preempts your client’s state law damages claim. You can expect this argument no matter how weak the federal regulatory scheme or how attenuated the connection between that scheme and the harms your client suffered or the state law duties under which your client seeks a remedy.