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Thursday, February 19, 2009

Supreme Court May Hear Food Safety Case

With the nation still reeling from news that the Peanut Corporation of America was able to contaminate huge portions of our food supply despite FDA regulation, it seems the Supreme Court could soon hear its own case involving food safety. Mother Jones is reporting that the Court may agree to hear a case out of New Jersey concerning mercury contamination of canned tuna products. The manufacturer, Chicken of the Sea, is hoping to escape accountability by arguing that FDA regulation preempts any state-level lawsuits over the safety of its product.

Deborah Fellner, a resident of New Jersey ate a can of tuna every day because it was one of the few foods that didn’t aggravate her Crohn’s disease symptoms. But after years of consuming tuna daily, she began experiencing new symptoms, which eventually led to the discovery that she was suffering from mercury poisoning. Having read stories of contaminated tuna, Ms. Fellner gave up the food, and gradually saw her symptoms disappear. Realizing that the tuna had caused her sickness, and that the company had never warned of the dangers posed by mercury contamination, Ms. Fellner filed suit under the New Jersey Consumer Fraud Act.

Unfortunately for Ms. Fellner, a U.S. District Court judge threw out her case in 2007, claiming that her suit was preempted because the FDA had refused to require tuna companies to place warning labels on their products. Ms. Fellner decided to appeal the decision, and last year, the Third Circuit Court of Appeals disagreed, claiming that the New Jersey law which she used to file suit served to complement, not undermine FDA regulation. Now, the Supreme Court is considering whether it will hear the case.

The issue of preemption has popped up on the Court’s docket quite a bit over the last few years as corporations have systematically tried to push the doctrine in order to immunize themselves from state tort law. Last year, the Supreme Court ruled that FDA approval of Medtronic defibrillators meant that consumers could not sue the company for faulty wiring. This year, the Court ruled that label requirements for tobacco products did not preempt the ability of consumers to sue for misleading advertising of “light” cigarettes. And the Court will soon release its decision in Wyeth v. Levine, determining whether pharmaceutical companies can be sued for injuries caused by their products.

Considering the amount of products the FDA is responsible for regulating, and the countless examples recently of their failure to do so -- like the recent disaster created by the Peanut Corporation of America -- the Court should recognize that state tort law serves to complement FDA regulation, and for good reason. The agency simply does not have the resources to be the final arbiter on product safety, despite what corporations may say.

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