Compassion Over Killing v. U.S. Food & Drug Administration
2017 U.S. App. LEXIS 3484
| 9th Cir. | 2017Background
- Compassion Over Killing, Animal Legal Defense Fund, and six consumers petitioned FDA, FTC, AMS, and FSIS to require egg cartons to disclose hen housing ("Free-Range," "Cage-Free," or "Eggs from Caged Hens").
- Petitioners argued consumers are misled by imagery/phrases (e.g., "all natural") and that eggs from caged hens are nutritionally inferior and have higher Salmonella risk.
- Each agency denied the petition: FSIS and AMS said they lacked statutory authority; FTC found insufficient evidence that deceptive practices were "prevalent" and preferred case-by-case enforcement; FDA found no showing that housing is a materially omitted fact and prioritized other rulemakings.
- Petitioners sued under the APA alleging agencies acted arbitrarily and capriciously; district court granted summary judgment to defendants.
- Ninth Circuit reviewed de novo, applying highly deferential review to agencies' refusals to institute rulemaking, and affirmed summary judgment for all agencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FSIS authority to regulate shell-egg labeling | EPIA authorizes FSIS to require housing disclosures on egg cartons | EPIA limits FSIS authority to "egg products," not shell eggs | FSIS lacks authority; denial upheld |
| AMS authority to promulgate mandatory shell-egg labeling | AMA authorizes AMS to set standards that include mandatory labels | AMA authorizes voluntary standards and recommendations, not mandatory nationwide labels | AMS lacks authority for mandatory requirements; denial upheld |
| FTC rulemaking for deceptive labeling | Egg labels and imagery are deceptive and widespread; rulemaking required | FTCA allows rulemaking only for "prevalent" practices; petition lacked widespread evidence; agency may enforce individually | FTC reasonably found lack of prevalence and rationally preferred individual enforcement; denial upheld |
| FDA rulemaking for misbranding or omissions | Labels affirmatively misrepresent housing and omissions are material because of health/nutrition risks | FDA found petition’s scientific evidence unreliable and held housing not established as a material omitted fact; enforcement and priorities justify denial | FDA’s factual and resource-allocation judgments were reasonable and denial met minimal APA explanation requirement; denial upheld |
Key Cases Cited
- Massachusetts v. EPA, 549 U.S. 497 (agency refusal to act reviewed with deference; must give reasonable explanation)
- SEC v. Chenery Corp., 332 U.S. 194 (agency may choose rulemaking or ad hoc enforcement)
- Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (courts should be most deferential on agency scientific judgments)
- N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067 (deference to agency technical/scientific determinations)
- In re Barr Labs., 930 F.2d 72 (courts should not second-guess agency priority-setting)
- WWHT, Inc. v. F.C.C., 656 F.2d 807 (agency denials of rulemaking are reviewable under APA)