F.D.A. ordered to move forward with F.S.M.A.

by Monica Watrous
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WASHINGTON — A federal judge has ordered the U.S. Food and Drug Administration to move forward with releasing regulations needed to implement the 2011 Food Safety Modernization Act (F.S.M.A.).

The Center for Food Safety, an advocacy group, in August sued F.D.A. commissioner Margaret Hamburg after the agency failed to issue seven major regulations by the statutory deadline of July 2012. The F.D.A. had argued that rules of “such magnitude and complexity” require time and care to develop.

In an April 22 decision, U.S. District Judge Phyllis J. Hamilton of the Northern District of California said the agency should work with the plaintiffs to establish a new timeline for the release and finalization of the rules by May 20.

“The court agreed with the plaintiffs and ruled that the law is clear on deadlines for the regulations, and that this is a health and safety regulation, so timeliness matters,” said Joe Levitt, a partner with Hogan Lovells and former director of the F.D.A.’s Center for Food Safety and Applied Nutrition. “On the other hand, the judge also agreed with the F.D.A. that getting it right is also really important.”

The F.D.A. in January released two proposals related to risk-based inspection for produce farms and manufacturing plants, but the White House Office of Management and Budget (O.M.B.) had received the drafts for review at the end of 2011.

“It strikes people as unusual that it took O.M.B. so long to review the proposed rules,” Mr. Levitt said. “I suspect that one of the things this lawsuit is about is not just pushing F.D.A. but pushing the entire political process.”

Although the F.D.A. may appeal the decision, the ruling reinforces that the regulations development process under F.S.M.A. should be close-ended, Mr. Levitt said.

“The food industry has been wanting the proposed regulations to be issued, to have a public comment period and to get them done,” Mr. Levitt said. “So long as there’s no rush to judgment, but a considered judgment, and provided F.D.A. seriously considers and responsibly addresses comments, I think the industry will be satisfied.”

In response to the ruling, George Kimbrell, senior attorney for the Center for Food Safety, said, “Every day without the F.S.M.A. regulations is another day where consumers are at unnecessary risk. Because of this decision our food will soon be safer from E. coli and other threats.”
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