(Adds FDA comment, paragraph 11)
By Jonathan Stempel
NEW YORK, July 24 A divided federal appeals
court on Thursday upheld a U.S. Food and Drug Administration
policy allowing the use of various antibiotics in animal feed,
even if such use might endanger the public health.
Reversing a lower court ruling, the 2nd U.S. Circuit Court
of Appeals in New York said the FDA was empowered to reject two
citizen challenges to its policy, which discourages but does not
ban the use of penicillin and some tetracyclines in feed for
chickens, cows and pigs, even if they are not sick.
Critics and some scientists say the prolonged, widespread
use of the feed to promote weight gain in animals can foster
"superbugs," exposing humans who contact or eat the animals to
antibiotic-resistant bacteria. They said the FDA should have
followed through on its 1977 proposal to ban the feed entirely.
The FDA has long since promoted voluntary limits on animal
feed containing the antibiotics. In December it began
implementing a plan to phase out the feed's indiscriminate use,
with an exception for when such use is "medically necessary."
In 2012, U.S. Magistrate Judge Theodore Katz in Manhattan
agreed with the Natural Resources Defense Council (NRDC), Public
Citizen and other groups challenging the FDA policy that the
refusal to consider the citizen petitions, which date from 1999
and 2005, was arbitrary and capricious.
Writing for a 2-1 appeals court majority, however, Circuit
Judge Gerard Lynch said the FDA deserved deference, even if
agency officials had scientific concern about the feed's safety.
"While the agency regards the indiscriminate and extensive
use of such drugs in animal feed as threatening, it does not
necessarily believe that the administration of antibiotics to
animals in their feed is inherently dangerous to human health,"
As a result, he said the FDA was not arbitrary or capricious
in denying the petitions, or in encouraging what the agency has
called "judicious" use of the feed, rather than seeking to
withdraw approval through a "protracted administrative process
and likely litigation."
Chief Judge Robert Katzmann dissented. He said the decision
lets the FDA "openly declare that a particular animal drug is
unsafe, but then refuse to withdraw approval," and "effectively
ignore" challenges to that policy. "I do not believe the
statutory scheme can be read to permit those results."
Jennifer Sorenson, a lawyer for the NRDC, said the decision
"effectively gives the FDA a free pass to ignore the science
when it is politically inconvenient." She said the group will
explore its legal options.
FDA spokeswoman Jennifer Dooren said, "The FDA is currently
reviewing the decision but is pleased with the outcome."
On June 30, the FDA said all 26 drugmakers affected by its
December plan had agreed to "fully engage in" phasing out the
use of the antibiotics in animal feed for food production, and
phasing in veterinarians to oversee the remaining medical uses.
The case is Natural Resources Defense Council Inc et al v.
FDA et al, 2nd U.S. Circuit Court of Appeals, Nos. 12-2106,
(Reporting by Jonathan Stempel in New York; Editing by Jonathan