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Chicken of the Sea Tuna Not Off the Hook for Mercury Poisoning: Third Circuit Awards Justice in Federal Preemption Case

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In a reversal of a district court decision, the United States Court of Appeals for the Third Circuit unanimously refused to exempt the company Tri-Union Seafood from liability for the mercury poisoning of a New Jersey woman due to contaminated canned tuna.

Tri-Union Seafood, also known as Chicken of the Sea, had previously made the case that the U.S. Food and Drug Administration’s informal advisory warnings about potentially high levels of mercury in canned tuna amounted to a “pervasive regulatory scheme” that preempted the claims of plantiff Deborah Fellner.

The Court of Appeals disagreed, determining that the FDA’s prior statements, as they were of an informal, unregulated nature, could not be construed as preemptive federal policy.

For several years, the FDA has issued advisories regarding the potential risk of mercury in canned tuna. The risk of adverse mercury effects is highest among babies, young children, and pregnant women, whose fetuses are particularly vulnerable.

Studies have linked low levels of mercury exposure in pregnant women and young children with damage to neurological and behavioral function. They have also associated frequent adult consumption of fish containing high levels of mercury with neurologic, cardiovascular, and immune system dysfunction.

High-risk populations are encouraged to avoid consuming canned tuna, choosing fish that contain low or negligible levels of mercury, such as salmon, tilapia, shrimp, and clams, instead.