The parties to a lawsuit seeking to force the Food and Drug Administration (FDA) to regulate anti-bacterial chemicals used in soap apparently argued whether the Natural Resources Defense Council (NRDC) had standing to pursue the litigation during a May 14, 2012, hearing before the Second Circuit Court of Appeals. NRDC v. FDA, No. 11-422 (2d Cir.). Additional information about the case appears in the February 3, 2011, issue of this Report. According to NRDC’s appeal brief, the lower court, which dismissed the matter for lack of standing, assumed “that exposure was not ‘unavoidable’ because members could carry around personal supplies of soap.”
While the NRDC members who submitted affidavits evidently indicated that they are involuntarily exposed to the chemicals “each time they wash their hands at the clinics where they work,” they also expressed concerned about the “health effects of antibiotic resistance resulting from the widespread use of triclosan and triclocarban.” NRDC argued that its members could use their own soap “instead of using free soap supplied by their clinics,” but would then incur a different injury, i.e., modifying their behavior and incurring a financial cost. NRDC also argued that its members’ fears about “the consequences of widespread use of both triclosan and triclocarban by the general populace, which fosters the development of antibiotic-resistant strains of bacteria that may threaten their health, … provides an independent and sufficient injury in fact for purposes of standing.”
FDA’s counsel reportedly countered that “no actual risk has been established.” See Law360, May 14, 2012.