Advocacy Groups Seek to Compel FDA Ruling on Food Additive Petition

Eight advocacy groups have filed a joint petition for a writ of mandamus to compel the U.S. Food and Drug Administration (FDA) to rule on a 2016 citizen petition seeking recission of approval for several artificial flavorings used in food that have been linked to cancer. Breast Cancer Prevention v. FDA, No. 18-71260 (9th Cir., filed May 2, 2018). The groups, including Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Environmental Working Group and Natural Resources Defense Council, allege that FDA failed to issue a decision by the deadline of August 8, 2016, and request an order mandating FDA to issue a decision within 30 days.

The groups allege that after FDA approved the seven chemicals at issue—including benzophenone, ethyl acrylate and styrene—multiple U.S. and international agencies established that each of the chemicals induces cancer in humans or animals. Under the Food, Drug and Cosmetic Act, the groups assert, carcinogenic chemicals cannot lawfully be used to flavor foods. “Congress clearly told FDA that known carcinogens cannot be used as food additives. What more does FDA need? It is time for FDA to take seriously its responsibility to keep cancer-causing chemicals out of food,” an attorney for the groups said in a press release. “Consumers cannot identify every ingredient in processed food and they shouldn’t have to; we need FDA to do its job and protect our health and welfare.”