It’s been known for some time that mercury, by and large, is not good for your health. It’s also been known that, when compared to other foods, seafood often contains higher levels of mercury (a result, sadly, of polluted seawater leading to a buildup of methylmercury in fish.) Why, then, does the FDA not require seafood to be labeled with information about mercury levels? That’s the question being asked by two consumer advocacy groups taking legal action against the agency over its failure to respond to a citizen petition.
The advisory offered advice about mercury consumption for new and expecting parents, providing important consumer information that many believe should be more widely available.
According to the groups Center for Science in the Public Interest and the Mercury Policy Project, a petition filed more than two-and-a-half years ago calling for mercury warning labels to be mandatory on seafood has gone unanswered. The petition, filed in July 2011, asked the FDA to address a number of factors, and called for:
- Point of sale (POS) advisories about seafood consumption by pregnant and nursing women, women of young children, and women of childbearing age
- Product labels indicating mercury levels to be included on packaged seafood
- Consumption advice on unpackaged seafood to be displayed at POS
- Foods that include a species known to be especially high in mercury to clearly say so, even if no mercury content label is necessary
The petition came after a 2004 advisory from the FDA, made jointly with the U.S. Environmental Protection Agency, was posted online. The advisory offered advice about mercury consumption for new and expecting parents, providing important consumer information that many believe should be more widely available. Did you know, for example, that mercury levels are typically much higher in longer lived species such as tuna and swordfish? The Center for Science in the Public Interest and the Mercury Policy Project believe that food labels could go some way in reducing the number of children born with elevated blood mercury levels, a condition caused by exposure in the womb to mercury consumed by the mother.
The petition was filed in the hope that the FDA would take action to raise awareness, but almost three years later, the advocacy groups’ lawsuit accuses the agency of unlawfully dragging its heels and delaying any consultation.
By law, the petition was due to receive a response within 180 days of receiving its docket number. Although the docket number was assigned in July 2011, more than a year passed before the FDA responded. That response, in August 2012, included a statement that the FDA had not yet reached a decision about mercury labeling.
Why the delay? What are the downsides to alerting the public to potentially dangerous ingredients? It’s not clear – the FDA has simply said it needs time to review the science behind the claims. The groups now say that the FDA has failed to provide adequate information on the progress – if any – of its decision. In a lawsuit filed in the U.S. District Court for the District of Columbia, the consumer groups are seeking a ruling that the FDA’s failure to respond in a timely manner violates the Food, Drug and Cosmetic Act and the Administrative Procedure Act, along with a court-imposed date by which the FDA must respond.
Let’s hope that, rather than rushing to dismiss the request, the agency gives it a fair and balanced consideration. More and more, consumers are becoming aware of the importance of watching what they eat, but a large part of this relies on accurate and trustworthy labeling – including clear warnings of any potentially harmful ingredients.
Lou Marlin was admitted to the bar in 1972 and is the founder of Marlin & Saltzman LLP. His experience includes class action lawsuits involving employee rights, mass torts involving medical devices, and suits filed over defective drugs. He has held a leadership role in more than 45 complex actions.