Supreme Court Ruling will help us STOP the FDA

Have you ever wondered how FDA gets away with allowing pet food to violate law? The FDA uses a Supreme Court decision called ‘Chevron deference’. But the good news is, Chevron deference is how we’re going to stop them!

Congress writes statutes (laws) and federal agencies are charged with enforcing those statutes. Trouble is, many laws are written in a manner that is open to interpretation by the federal agency enforcing them. That ‘interpretation’ aspect of law by federal agencies was challenged in 1984 by Chevron Oil Company (Chevron U.S.A. v. Natural Resources Defense Council) and the case went all the way to the Supreme Court. The Supreme Court decided the court would ‘defer’ (give deference) to the federal agency’s interpretation of law (yield to the federal agency’s interpretation of law). But – significantly – the Supreme Court (bold added) “set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers.”

The Supreme Court ruling – determining if a government agency is properly interpreting law – is termed Chevron deference. From Cornell University law school:

“One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable.”

Justia.com law blog states (bold added): “Under Chevron, even if a court finds that another interpretation is reasonable, or even better than the agency’s interpretation, it must defer to the agency’s reasonable interpretation.”

The key to this issue is “reasonable interpretation” of law. What is ‘reasonable interpretation’? Justia.com explains (bold added)…

“Reasonableness in part turns on whether the statute unambiguously addresses the issue. If it does, then the unambiguous meaning controls.”

To translate in non-legal language…the Supreme Court decided if the law is unambiguous – not open to more than one interpretation – then the law itself should be enforced. In other words, the court would not allow a government agency (FDA in our case) interpretation of law if the law was written clearly and precisely.

Below is the legal definition of food (source Federal Food, Drug and Cosmetic Act). Is this definition unambiguous (not open to more than one interpretation)?

Law states: “The term “food” means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.”

Seems very clear; food includes the ‘articles’ that animals (and humans) consume.

Below is part of the legal definition of an adulterated food (source Federal Food, Drug and Cosmetic Act). Is this definition unambiguous (not open to more than one interpretation)?

“A food shall be deemed to be adulterated- (5) if it is, in whole or in part, the product of a diseased animal or of an animal which has died otherwise than by slaughter;”.

Again, it seems very clear; a food (what humans and animals consume) would be considered adulterated (illegal) if it contained any part of a diseased animal or any non-slaughtered animal.

But…

The FDA interprets the above laws very differently. The FDA interprets the above laws by stating the agency believes the law does not intend to hold animal food/pet food to the same standard as human food; “the Center for Veterinary Medicine does not believe that Congress intended the Act to preclude application of different standards to human and animal foods”.

Ok…for argument’s sake, let’s say the FDA does believe there are multiple interpretations to the laws quoted above (FDA believes the laws are ambiguous); the Supreme Court ruled on this possibility too. This part is the significant part for us to stop FDA. Justia.com law blog states (bold added)…

“If the statute is ambiguous, then the court asks whether the agency’s interpretation of the ambiguous provision is based on a permissible construction of the statute. A permissible construction is one that is not “arbitrary, capricious, or manifestly contrary to the statute.” In other words, it is a very low threshold of deference.”

Translation in non-legal language…If the law is open to multiple interpretations, the Supreme Court ruled the government agency can use their own interpretation of the law AS LONG AS IT IS NOT OBVIOUSLY or EVIDENTLY CONTRARY TO THE ORIGINAL LAW (“manifestly contrary”). And the federal agency’s interpretation of law cannot be based on agency whim (arbitrary) and/or cannot be an unaccountable change (capricious) of the law.

Not “arbitrary, capricious, or manifestly contrary to the statute.”

Below again is the legal definition of an adulterated food…

“A food shall be deemed to be adulterated- (5) if it is, in whole or in part, the product of a diseased animal or of an animal which has died otherwise than by slaughter;”.

Now…below is a FDA Compliance Policy regarding pet food (a Compliance Policy would be FDA’s interpretation of law – guidance issued to FDA representatives based on the agency’s interpretation of law). Is the following interpretation of law evidently (manifestly) contrary to the above legal definition of adulterated food?

“Policy: Pet food consisting of material from diseased animals or animals which have died otherwise than by slaughter, which is in violation of 402(a)(5) will not ordinarily be actionable, if it is not otherwise in violation of the law. It will be considered fit for animal consumption.”

The FDA interpretation of law is definitely “manifestly contrary” to the original law; in fact, the above FDA interpretation of federal law is completely opposite of the original law. The FDA has ignored the Supreme Court’s guidelines for Chevron deference.

In reference to ‘arbitrary or capricious’…earlier this year (before I was aware of Chevron deference) TruthaboutPetFood.com filed a Freedom of Information Act request asking the FDA for the scientific foundation the agency bases the Compliance Policy (stated above) on. The FDA responded “After searching our files, we did not find the requested records.” Without science to validate the FDA decision