Ninth Circuit Tolls Publication Date for FDA Proposed Rule

While the Ninth Circuit Court of Appeals has granted the Food and Drug Administration’s (FDA’s) motion for expedited consideration of its emergency motion to stay a district court order establishing rulemaking deadlines under the Food Safety Modernization Act, it denied the stay pending appeal. Ctr. for Food Safety v. Hamburg, No. 13-16841 (9th Cir., order entered November 4, 2013). Details about the motion appear in Issue 501 of this Update. The Ninth Circuit has, however, deemed “the period of compliance established by the district court tolled” due to the “government shutdown.” It extended until December 20, 2013, the date on which FDA will be required to publish a notice of proposed rulemaking addressing novel requirements for preventing the intentional adulteration of food.

The Ninth Circuit also granted FDA’s motion to expedite the hearing of its appeal. Thus, the opening brief must be filed by December 23, the answering brief is due January 22, 2014, and the optional reply brief must be filed within 14 days after service of the answering brief. The case will be heard during the week of March 10 in San Francisco.