In Fellner v. Tri-Union Seafoods, L.L.C., ___ F.3d ___ (Aug. 19, 2008), the Third Circuit held that the FDA's "regulatory actions" did not preempt certain non-disclosure claims brought under New Jersey law. On Aug. 20, The Legal Intelligencer reported that "3rd Circuit Revives Mercury-in-Tuna Class Action."
This decision is of interest to California practitioners in light of this paragraph:
The factual landscape of this case is colored by recent litigation in California. On June 21, 2004, then-Attorney General of California, Bill Lockyer, filed a lawsuit against Tri-Union and other defendants under California’s “Proposition 65,” CAL. HEALTH & SAFETY CODE § 25249.6, seeking an injunction and civil penalties for defendants’ failure to warn consumers that their tuna products contain dangerous mercury compounds. While that suit was pending, the Commissioner of the FDA sent a letter to Mr. Lockyer expressing the opinion that the FDA’s prior regulatory actions preempt the State’s lawsuit. In the Commissioner’s view, the defendants would be unable to comply both with that approach and state law and the existence of the lawsuit would “frustrate the [FDA’s] carefully considered federal approach” to the issue of mercury in fish. See People v. Tri-Union Seafoods, 2006 WL 1544377 (Cal. Super. Ct. May 12, 2006) (taking judicial notice of the letter). In May 2006, following a bench trial, the Superior Court of California found the Attorney General’s lawsuit preempted by federal law. People v. Tri-Union Seafoods, 2006 WL 1544384 (Cal. Super. Ct. May 11, 2006), appeal docketed, No. A116792 (Cal. Ct. App. 1st Dist. Feb. 20, 2007).
Slip op. at 4-5. The Third Circuit panel disagreed, at least with respect to the particular New Jersey claims before it:
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. Fellner’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. Fellner’s duty-to-warn claim does not conflict with an FDA determination deliberately to forego warnings because the FDA took no action to preclude state warnings – at least, no binding action via ordinary regulatory procedures, and no action whatsoever until after Tri-Union allegedly wrongfully failed to warn. Finally, Fellner’s lawsuit does not conflict with the FDCA’s food misbranding provision or the FDA’s actions thereunder because the FDA has not exercised its misbranding authority under the FDCA with respect to methylmercury warnings for fish.
Id. at 37-38.