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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Something’s Fishy at FDA – Guest Blog by Catherine A. O’Neill

According to today’s Washington Post, the Food and Drug Administration (FDA) is seeking to rescind its warning that women and children should limit their intake of fish, given widespread mercury contamination. The FDA is now espousing the view that the benefits of consuming fish outweigh the risks of neurological damage and mercury’s other harms – a position that has “alarmed scientists” at the Environmental Protection Agency (EPA), according to the Post. If approved by the White House, the FDA’s recommendation would reverse the government’s current policy – advice issued jointly by the FDA and EPA warning that mercury can cause irreversible damage to the developing nervous system.

The argument for encouraging fish intake is that the nutrients in fish, including omega-3 fatty acids, selenium, and other minerals, are beneficial to neurological development. But the mercury that contaminates many fish species has long been known to be a potent neurotoxin. The developing fetus, infants, and children are particularly sensitive to mercury’s adverse neurological effects.

The FDA’s reversal of course is troubling in several respects.

First, it is a real question whether the FDA’s new position is supported by the science. Scientists within the EPA have criticized the FDA’s recommendation as “scientifically flawed and inadequate” and have questioned the “scientific rigor” behind the FDA’s move. Kathleen Mahaffey, who was the EPA’s top mercury scientist until she left the agency several months ago to join the faculty at George Washington University School of Public Health, observed that the FDA had employed an “oversimplified approach” in its assessment. One does not have to be too much of a cynic to wonder whether the FDA’s change of course is of a piece with the numerous other instances in which the Bush Administration has reinterpreted science that calls for greater – not lesser – protection of human health and the environment.

Second, the FDA has framed the public health question in terms of “balancing” the “risks” and “benefits” of fish consumption, given mercury contamination. In fact, fishing industry representatives such as the National Fisheries Institute have long worked to craft the debate in just this manner. But mercury contamination ought not be considered a given. By framing the problem in this way, the FDA buys into the notion that there is nothing to be done about the underlying problem of mercury pollution. In fact, much could be done – but the Bush Administration, in particular, has thwarted efforts to address mercury pollution at virtually every turn. Its “Clean Air Mercury Rule” is a case in point. Instead of requiring coal-fired utilities to reduce their mercury emissions by roughly 90 percent before 2008, as authorized by the Clean Air Act, the EPA worked to diminish and delay any required emissions reductions from these sources. It set up an emissions trading program that would theoretically require a 70-percent reduction in mercury emissions by 2018 (EPA’s own models show that the promised 70-percent reduction wouldn’t actually be realized until as late as 2030). Indeed, EPA went to great lengths to give this reprieve to the utilities, enlisting a novel interpretation of the Clean Air Act – one that the D.C. Circuit roundly rejected. If our environmental agencies did their job, women and children wouldn’t be faced with having to “balance” the risks and benefits of eating fish. As I have said elsewhere, tuna shouldn’t come with a side of mercury.

Catherine A. O’Neill is an Associate Professor of Law at Seattle University School of Law and a Member Scholar with the Center for Progressive Reform.