Supreme Court May Hear Mercury In Tuna Case

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Last fall, we published a story about a woman named Deborah Fellner who had sued Chicken of the Sea alleging that she had gotten mercury poisoning from eating the company’s canned albacore tuna. Tuna companies have known at least since the 1970s that canned tuna can contain high levels of mercury, which can cause neurological problems that resemble Parkinson’s disease and other ailments. (Fellner’s hair fell out, among other things.) Yet a New Jersey federal court initially threw out her case thanks to help from the Bush FDA. At the request of the tuna industry in another lawsuit, the FDA had claimed that such lawsuits were “preempted” by federal law because it was already doing such a good job of regulating tuna.  A judge agreed, and using that decision, Chicken of the Sea claimed that Fellner’s lawsuit was likewise trumped by federal regulators, largely because they had posting a warning about eating mercury in fish on the FDA website. It was a pretty flimsy argument, and eventually, an appeals court reversed in favor of Fellner. Her lawsuit has been proceeding ever since. And now it looks like it might go all the way to the U.S. Supreme Court.Fellner’s lawsuit has the potential to open the door to thousands of
personal injury lawsuits against tuna companies over the mercury issue,
and if successful, it could also help the state of California prevail in its efforts to put warning labels on tuna cans advising about the mercury risks, a move that could cost the tuna industry millions in lost sales. So Chicken of the Sea appealed to the high court, which this month requested a response from
Fellner, a sign that the court may be seriously considering the preemption issue raised by the tuna company.

Preemption is a hot
topic at the court these days. It’s already decided a number of
preemption cases in the past year, most recently in Altria v. Good. In that case, the court found that lawsuits against the cigarette company for
deceiving customers into thinking that “light” cigarettes were
healthier for them were not preempted by federal regulations. The case represented a huge win for those who see
preemption as a threat to many state consumer protection, health and safety laws. But the court has also ruled the other way. In February last year, in Riegel v. Medtronic, the court ruled that a 1976 law did preempt lawsuits filed against the makers of medical devices who’d undergone extensive safety testing required by the FDA, even when those devices were defective and killed people. That decision
prompted a Minnesota judge recently to throw out more than a thousand
lawsuits filed by people who’d been injured by faulty pacemakers. (Congress is now considering legislation to overturn that decision.)

Still, Fellner has a decent chance of prevailing, one way or another. Even
if she loses, she’ll succeed in raising public awareness about mercury in tuna simply from the publicity likely to surround the case if it reaches
the Supreme Court. And that can’t be good for the tuna companies, which would
prefer that Americans see their canned tuna products as a recipe for
good health, not a delivery system for dangerous neurotoxins.

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Minority rule, corruption, disinformation, attacks on those who dare tell the truth: There is a direct line from what's happening in Russia and Ukraine to what's happening here at home. And that's what MoJo's Monika Bauerlein writes about in "Their Fight Is Our Fight" to unpack the information war we find ourselves in and share a few examples to show why the power of independent, reader-supported journalism is such a threat to authoritarians.

Corrupt leaders the world over can (and will) try to shut down the truth, but when the truth has millions of people on its side, you can't keep it down for good. And there's no more powerful or urgent argument for your support of Mother Jones' journalism right now than that. We need to raise about $450,000 to hit our online fundraising budget in these next few months, so please read more from Monika and pitch in if you can.

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