The Food and Drug Administration (FDA) and the Natural Resources Defense Council (NRDC) have agreed to a timeline for the production of material NRDC requested under the Freedom of Information Act (FOIA) involving bisphenol A (BPA) in food packaging and food contact materials. NRDC v. FDA, No. 11-8662 (S.D.N.Y., stipulation and order filed February 21, 2012). Additional information about the litigation appears in Issue 420 of this Update.

The agreement narrows the request, limits the FDA offices required to
conduct searches for responsive records and specifies the format in which
the records will be produced. It also creates a timeline for FDA to produce
internal material, material involving other agencies and a list of withheld
documents. Any further proceedings in the litigation NRDC filed to force the
agency to respond to its FOIA request are stayed until further order of the
court on or after August 22, 2012. NRDC is obligated to notify the court and
defense counsel by that date if it intends to challenge any withholdings or
the adequacy of FDA’s search. In that event, a summary judgment briefing
schedule will be provided to the court.

NRDC has been seeking since 2008 to prohibit the use of BPA in food packaging, and, in an agreement reached in a separate lawsuit, the agency has committed to issuing a decision on NRDC’s petition by March 31.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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