The D.C. Circuit Court of Appeals has determined that it lacks jurisdiction to hear the Natural Resources Defense Council’s (NRDC’s) request that the court order the Food and Drug Administration (FDA) to issue a final decision on NRDC’s citizen petition asking the agency to prohibit the use of bisphenol A (BPA) in human food. In re: NRDC, No. 10-1142 (D.C. Cir., decided June 17, 2011). The chemical is used in plastic and metal food containers as well as in thermal paper and carbonless copy paper and has been found in the urine of 95 percent of adults sampled in the United States.
According to the court, because NRDC could not show that jurisdiction over the citizen petition lies exclusively in the court of appeals or that all final FDA action on NRDC’s petition would be directly and exclusively reviewable in the court of appeals, NRDC’s request must be heard by a federal district court. Had NRDC submitted a “food additive” petition and submitted new data to amend or repeal a food additive regulation, the court of appeals would have had jurisdiction. According to the court, NRDC did not do so.
NRDC submitted a citizen petition to FDA in October 2008 asking the agency to “establish a regulation prohibiting the use of BPA … in human food and [to] revoke all regulations permitting the use of a food additive that results in BPA becoming a component of food.” The petition sought a change in the regulations based on new data, citing studies showing that BPA leaches from baby bottles heated with water and that BPA exposure is associated with female and male reproductive toxicity, cancer and diseases such as diabetes, cardiovascular disease and obesity. FDA acknowledged receipt of the petition, and, in response to an NRDC query about it five months later, provided a tentative decision noting that a final decision was not possible because of the “limited availability of resources and other agency priorities.” FDA made no other response to the petition, so NRDC asked the court in June 2010 to establish “an enforceable deadline” by which FDA must respond, either denying the petition or conducting a responsive rulemaking.
Because NRDC denominated its agency request as a citizen petition and did not apparently comply with the more rigorous food additive petition requirements, the court determined that the rules pertaining to court review of FDA action on food additive petitions did not apply.