Appeals Court Backs the FDA's Passive Approach to Farm Antibiotics

Most of the antibiotics used in the U.S. are fed to farm animals, not people. And the animals usually aren’t sick—low levels of antibiotics are used continuously because it promotes growth and prevents disease.

Back in 1977, the Food and Drug Administration concluded that this could be a bad thing. Routinely feeding medically important drugs such as penicillin and tetracycline to animals can spawn superbugs—which, in turn, can infect people. For decades the FDA didn’t do much with its findings and never held hearings on the issue. Petitions were submitted to the agency demanding action, and in 2011 the Natural Resources Defense Council and several other advocacy groups filed a lawsuit against the FDA.

A federal appellate court sided with the FDA on Thursday, overturning two district court rulings and ordering the lower court to dismiss the case. ”Our survey of the text, the context, the regulations, and the background legal principles leave us firmly persuaded that Congress has not required the FDA to hold hearings when FDA officials have scientific concerns about the safety of animal drug usage,” the Second Circuit Court of Appeals wrote.

In a dissenting opinion, Judge Robert Katzmann wrote: “Today’s decision allowed the FDA to openly declare that a particular animal drug is unsafe, but then refuse to withdraw approval of that drug. It also gives the agency discretion to effectively ignore a public petition asking it to withdraw approval for an unsafe drug. I do not believe the statutory scheme can be read to permit those results.”

In the years since the FDA concluded that routinely giving livestock antibiotics may not be safe, institutions from the World Health Organization to the Centers for Disease Control have reached a similar conclusion. Yet it remains unclear how much antibiotic-resistant bacteria from farms contributes to human illness.

Last December the FDA addressed the issue, issuing voluntary guidelines that sought to eliminate the use of medically important antibiotics in animal feed solely to promote the growth of farm animals.

The NRDC and others have criticized the guidelines as tepid because they allow livestock producers to continue to use antibiotics on healthy animals to prevent disease. As Avinash Kar, an NRDC attorney said in a statement, “Adding antibiotics to farm animals’ feed, day after day, is not what the doctor ordered and should not be allowed.”

Jennifer Corbett Dooren, an FDA spokeswoman, said in an e-mail: “The FDA is currently reviewing the decision but is pleased with the outcome.”

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