NRDC Seeks Rehearing in FDA Livestock Antibiotic Litigation

The Natural Resources Defense Council (NRDC) and other groups have requested that the Second Circuit Court of Appeals reconsider its decision that the U.S. Food and Drug Administration (FDA) is not required to begin proceedings to withdraw approval of certain antibiotics in livestock feed. NRDC Inc. v. FDA, No. 12-2106 (2d Cir., petition filed September 8, 2014). Additional details about the Second Circuit’s split ruling appear in Issue 531 of this Update. According to a news source, the petitioners contend that the panel majority overlooked FDA’s initial findings that the use of antibiotics in animal feed is unsafe and “writes the withdrawal provision out of the Food and Drug Act.” FDA considered the safety of penicillin and tetracyclines in animal feed in 1977, but never conducted adversarial hearings with industry as purportedly required under the law, opting instead to seek the voluntary withdrawal of animal feed with antibiotics from the market. See Law360, September 10, 2014.

Issue 537