Monday, March 19, 2018
Judge Trevor McFadden (D.D.C.) ruled that two organizations lacked standing to challenge the FDA's failure to act on their petition to regulate hair-straightening products that contain formaldehyde. The ruling dismisses the plaintiffs' challenge.
The case arose when the plaintiff-organizations petitioned the FDA to regulate formaldehyde-containing hair-straighteners. The FDA looked into it, but ultimately declined to issue new regs. So the organizations sued. The FDA argued that they lacked standing, and the court agreed.
The court ruled that the plaintiff-organizations lacked organizational standing, because the only harms they alleged were increased educational expenses (to educate the public about the products) and lobbying expenses. As to the educational expenses, the court said they don't count for standing purposes, because public education is what the organizations do, anyway. As to lobbying expenses, the court said that "injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any issue to take the Government to court."
The court also ruled that the plaintiffs lacked associational standing. That's because they sought only injunctive relief, but only alleged that their members suffered prior harm (so that their remedy wouldn't redress the harm). The court noted that the organizations couldn't really allege likely future harm on behalf of their members, anyway, because they don't know that the harm will happen.
While the court dismissed the case for lack of standing, it also provided a pretty good roadmap under circuit law for pleading a case like this, where an agency fails to take action, based on an organization's increased workload as a result of the inaction, or an organization's inability to obtain information based on agency inaction.