Food Safety Rights of Action | jgersen | August 23, 2017

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Food Safety Rights of Action

by jgersen Show/Hide
  1. 1 Show/Hide More Rogers v. Tyson Foods, Inc.
    Original Creator: jgersen

    Notes:
    <p>1. No private right of action. As the court explained, there is no private right of action in the <span class="caps">PPIA</span>. In In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781, 788 (3d Cir. 1999) holds that there is no private right of action in the <span class="caps">FDCA</span>. As a consequence, ordinary citizens may not bring suit in federal court even if they are harmed by a company's failure to comply with federal food safety requirements. That leaves two possibilities. First, agency agency enforcement. The federal agency with jurisdiction over the given facility that must elect to enforce the statutory requirements. Given the number of facilities already emphasized and the limited resources of the agencies, there is only so much enforcement possible.</p> <p>2. State Law. A second path of enforcement relies on neither federal agency enforcement, nor private rights of action in federal court, bur rather state law claims in state courts. Tyson Foods entails one example. Tyson argued that the <span class="caps">PPIA</span> preempted all state law claims even though the <span class="caps">PPIA</span> (and also the <span class="caps">FDCA</span>) do not provide a private right of action in federal court. The court disagreed, concluding that &#8220;complete preemption&#8221; can only exist when the federal law provides a private right of action. As the court notes at the end of the opinion, this does not mean that Tyson has no preemption defense. Rather, preemption may be asserted as a defense in statute court. There is no basis for federal jurisdiction, however, and no grounds for removal to federal court.</p>
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August 23, 2017

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Jacob Gersen

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