Mo Jones Takes On Big Tuna

by: Jill Richardson

Tue Sep 09, 2008 at 08:00:00 AM PDT

Landvik-Fellner stopped eating tuna, and within about a year, her symptoms began to subside. But by now she was angry, and confused. If eating tuna could make your hair fall out, shouldn't the label tell you so? In 2006, she filed a lawsuit against Tri-Union Seafoods, parent company of Chicken of the Sea, alleging that the company had violated the New Jersey Consumer Fraud Act by failing to disclose that its product contained mercury.

"Toxic tort" cases are notoriously hard to win, and Landvik-Fellner faced long odds against the deep-pocketed industry. That much she knew. What she didn't anticipate was that her biggest obstacle would turn out to be the US Food and Drug Administration-the very agency responsible for protecting the public from mercury in the first place.

The danger of mercury in tuna isn't necessarily because tuna has more mercury than most other fish. It's because we eat so much of it. We eat more tuna than any other seafood besides shrimp, and given the quantities we eat tuna in, the amount of mercury in it can be dangerous.

To find out how much tuna you can safely eat, check out the Tuna Calculator. And remember - buy light instead of albacore white to reduce the amount of mercury you consume.

In the Landvik-Fellner case, Tri-Union has used an increasingly popular legal strategy, arguing that her claim was "preempted" by federal law. The argument goes like this: If a product is regulated by the federal government, however weakly, consumers shouldn't be allowed to sue-and states should be prohibited from passing regulations or issuing health and safety warnings more stringent than the feds'.

But Tri-Union went one step further. It argued that Landvik-Fellner's case was preempted because the fda had refused to require warning labels on tuna-in other words, when the feds fail to regulate a product, that, too, can preempt state law.

And... it almost worked. Except it didn't. She took her case to the 3rd Circuit Court of Appeals, and they laughed the tuna guys out of court:

"[W]e fail to see how an educational campaign might preempt Fellner's lawsuit," the panel wrote.

In fact, the court found that the New Jersey laws that Fellner sued under complemented, rather than conflicted with, the federal guidelines on mercury. And in a conclusion that is no doubt giving the tuna industry fits, the court noted that contrary to the industry's pleas, it would be fairly simple to come up with a warning label that would comply with both the FDA and New Jersey law. That last point may have implications beyond Fellner's case.

At present, California is trying to get tuna cans labeled with warnings and that effort is hung up in court. The article says that California's courts don't have to adhere to the decision made by the 3rd circuit but they do tend to defer to decisions made at the federal level.

I've been waiting for years to see tuna get taken to task for this mercury issue. It absolutely kills me that tuna is trying to cover up for their mercury problems instead of instead going after the coal fired power plants that cause the mercury problem in the first place!