Wednesday, August 20, 2008
The Legal Intelligencer (via law.com) reports that the Third Circuit has reversed the dismissal of a class action against the manufacturer of Chicken-of-the-Sea brand tuna. The suit alleges that the company failed to warn consumers that excessive tuna consumption could lead to mercury poisoning.
The unanimous three-judge panel found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by U.S. Food & Drug Administration regulations.
"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," Senior U.S. Circuit Judge Walter K. Stapleton wrote in Fellner v. Tri-Union Seafoods.
A copy of the opinion is available here.