In ongoing litigation over the FDA’s approval of AquAdvantage bioengineered salmon, the District Court for the Northern District of California issued an order upholding FDA’s authority to regulate as a new animal drug genetic material that is used to modify an animal (for background on the case, see our prior posting here). Although the Court discussed a number of factors supporting its decision, the Court seemed to have little difficulty concluding that FDA’s authority derives directly from the plain language of the Federal Food, Drug, and Cosmetic Act (FDCA):
The text of the FDCA settles this dispute: AquaBounty’s rDNA construct is a drug under the plain language of the statute. The definition in section 321(g)(1)(C) can be broken down into two elements: (1) an article (other than food) (2) that is intended to affect the structure and function of an animal. The discrete and identifiable rDNA construct is an “article,” which “is just ‘a particular thing.’” The article of genetic material is not “food,” which is defined “as articles used for food or drink for man or other animals,” or “used for components of any such article.” And that article is intended to affect the structure and function of the Atlantic salmon by stimulating faster growth. Therefore, the rDNA construct in this case is a “drug” and (with an added layer of precision) a “new animal drug”—that is, “any drug intended for use for animals other than man.”
(Citations omitted.) The Court also sided with the government in turning aside plaintiffs’ challenge to FDA’s Guidance for Industry 187 (Guidance 187), which sets out the Agency’s view of how the statutory provisions and regulations that govern new animal drug approval apply to animal bioengineering. The Court concluded that Guidance 187 is “best characterized not as a legislative rule (as the plaintiffs insist) but instead as an interpretive rule addressing the drug definition and a policy statement with respect to the new-animal-drug application process.” The court held that neither the interpretive rule nor policy statement aspects of Guidance 187 constitute final agency action subject to judicial review, in that they don’t mark the consummation of the agency’s decisionmaking process and also determine legal rights or obligations.
The Court opted to delay resolution of plaintiffs’ claim that the FDCA precludes approval of a drug that is not safe for the environment. The Court acknowledged that “some aspects of the statutory scheme suggest that the FDA’s substantive decision should turn solely on the safety of the genetically engineered animals and the humans who come into contact with those animals,” and that “the statute could be read to suggest that safety is linked to health rather than some broader conception of harm.” However, the Court noted that “the term ‘safe’ is certainly capacious enough to reach environmental risks, and Congress carved out space for ‘other relevant factors.’ Thus, the FDA might be permitted to treat the environment as a relevant factor so long as there is ‘a rational connection between the facts found and the choice made.’ And perhaps in compelling circumstances, environmental harm would be among the ‘other relevant factors’ the FDA would be required to consider when evaluating a drug’s safety.” Noting that the parties had not adequately briefed the questions raised by the Court, the Court delayed resolution of this issue until the next stage of the case. Also deferred for a later date are plaintiffs’ claims challenging specific aspects of FDA’s approval of AquAdvantage (as opposed to plaintiffs’ broader attack on FDA’s authority over bioengineered animals).