Court rejects bid to spur U.S. regulation of BPA

A federal appeals court today ruled against the Natural Resources Defense Council's effort to force the Food and Drug Administration to limit bisphenol A (BPA) in food additives.

The three-judge U.S. Circuit Court of Appeals for the District of Columbia panel ruled unanimously on jurisdictional grounds, arguing that the case belongs in district court.

The ruling is a blow to NRDC's efforts for stricter regulations on BPA. The case is part of a broader legislative and legal effort by green groups to crack down on the substance, which has been linked to developmental and hormonal health problems.

The case revolves around an NRDC citizen petition submitted to FDA on Oct. 21, 2008. The petition asked FDA to revoke all regulations permitting the use of BPA as a food additive, citing new scientific data showing its detrimental health effects.

When FDA did not respond to the petition, NRDC filed a case with the appeals court in June 2010, seeking to have the court establish "an enforceable deadline" for FDA to either deny the petition or begin a new rulemaking.

FDA argued that citizen petitions under the Food, Drug and Cosmetic Act are regularly heard in district court. The agency also said NRDC could have sought an Administrative Procedure Act claim against FDA for unreasonable delay in the district court.

The court agreed. Judge Judith Rogers wrote on behalf of Judges Karen LeCraft Henderson and Brett Kavanaugh that NRDC failed to prove its petition belonged in the appeals court.

"Because the NRDC cannot show that jurisdiction over its citizen petition lies exclusively in this court, or that all final FDA action on its petition would be directly and exclusively reviewable in this court," she wrote, "we dismiss the petition for lack of jurisdiction."

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