LawyersUSA

The plaintiff claimed that the company hadn't warned the public about dangerous levels of methylmercury in its Chicken of the Sea tuna, which allegedly caused the plaintiff to suffer serious health problems.

The defendant filed a motion to dismiss. It argued that the plaintiff's claim was preempted by the FDA's actions, which included issuing a consumer advisory about the potential harmful effects of mercury in fish and choosing not to require warning labels on canned seafood.

But the court said that the plaintiff's claim was not preempted by non-binding advice provided by a federal agency.

It noted that the FDA had set no legal standard for mercury levels in fish.

"The FDA has only issued a consumer advisory regarding the risks posed by mercury in fish and established a guideline regarding mercury concentrations to guide its enforcement decisions," the court said. "Neither of these agency acts constitutes a federal legal standard or binding regulatory action on the subject which could give rise to a conflict. …

"This is a situation in which 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," the court said. "[The plaintiff's] lawsuit does not conflict with the FDA's 'regulatory scheme' for the risks posed by mercury in fish or the warnings appropriate for that risk because the FDA simply has not regulated the matter."

U.S. Court of Appeals, 3rd Circuit. Fellner v. Tri-Union Seafoods, LLC, No.76-1238. Aug. 19, 2008. Lawyers USA No. 99310617. Click here for the full text of this opinion.