Community Nutrition Institute v. Novitch, Civ. A. No. 83-3846.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtJames S. Turner, Swankin & Turner, Washington, D.C., for plaintiffs
Citation583 F. Supp. 294
Docket NumberCiv. A. No. 83-3846.
Decision Date22 March 1984
PartiesCOMMUNITY NUTRITION INSTITUTE, et al., Plaintiffs, v. Dr. Mark NOVITCH, Acting Commissioner Food and Drug Administration, Defendant.

583 F. Supp. 294

COMMUNITY NUTRITION INSTITUTE, et al., Plaintiffs,
v.
Dr. Mark NOVITCH, Acting Commissioner Food and Drug Administration, Defendant.

Civ. A. No. 83-3846.

United States District Court, District of Columbia.

March 22, 1984.


James S. Turner, Swankin & Turner, Washington, D.C., for plaintiffs.

David Levitt, U.S. Dept. of Justice, Civ. Div., Washington, D.C., Irene M. Solet, Associate Counsel for Enforcement Food and Drug Admin., Rockville, Md., for defendant.

MEMORANDUM ORDER OF DISMISSAL

BARRINGTON D. PARKER, District Judge:

On December 23, 1983, plaintiffs1 filed the present complaint, requesting that the Court enter an order directing the Food and Drug Administration (FDA) to conduct public hearings to determine the safety of using the food additive aspartame—a sugar substitute—in carbonated beverages.

583 F. Supp. 295
The complaint also sought an order staying the FDA's regulation permitting the addition of aspartame to carbonated beverages until such time as the FDA would convene and conclude the requested public hearings. The plaintiffs had previously filed with the FDA on August 8, 1983, similar requests for a hearing and a stay, along with objections on the merits to the approval of aspartame's use in carbonated beverages

On January 24, 1984, plaintiffs filed in this Court a motion for a temporary restraining order seeking relief on an emergency basis, but broadening their request for a temporary stay to bar the addition of aspartame not only to carbonated beverages, but to all "food products." The Court denied plaintiffs' motion for a temporary restraining order and in an Order entered on January 27, 1984, noted that the affidavits in support of the motion were for the large part anecdotal, the conclusions advanced were unsubstantiated by direct scientific evidence and most of the factual assertions relied upon were in actuality inadmissible hearsay. The Court also noted in the order that the government had represented at the argument on the motion for a temporary restraining order that an FDA ruling on plaintiffs' request for a public hearing was imminent—by mid-February.

On February 15, 1984, the plaintiffs filed a second motion for a temporary restraining order. Two days later, on February 17, the FDA entered a final ruling on plaintiffs' request for an oral hearing and denied the hearings sought by the plaintiffs. In response to the plaintiffs' second motion for temporary injunctive relief, the FDA filed a motion to dismiss, asserting that this Court lacked jurisdiction and that judicial review was appropriate only in the court of appeals, and not before a district court.

The Court has considered the legal memoranda, the oral argument of counsel for the parties, and determines that the motion to dismiss should be granted and that the plaintiffs' present motion for a temporary restraining order should be denied. The reasons in support of that ruling are set out below.

A.

Regulations regarding the use of food additives are governed by the Food, Drug and Cosmetic Act ("Act"), 21 U.S.C. § 301, et seq. The FDA approved the use of aspartame in two separate regulatory proceedings, approving certain "dry uses" of aspartame on July 24, 1981, and then approving its use in carbonated beverages on July 8, 1983.

G.D. Searle & Co. discovered and developed aspartame. In March 1973, it filed a petition with the FDA for the approval of dry uses of aspartame. On July 24, 1981, after extensive administrative proceedings in which...

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4 practice notes
  • Community Nutrition Institute v. Young, Nos. 84-1153
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • September 24, 1985
    ...later, on February 17, 1984, the FDA denied the objectors' request for a hearing. Thereafter, on March 22, 1984, the District Court, 583 F.Supp. 294, denied the second motion for a temporary restraining order and granted FDA's motion to dismiss the complaint on the ground that jurisdiction ......
  • O'Brien v. U.S., No. CIV. 2:97-CV-145-WCO.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • February 13, 1998
    ...Review of an FDA decision denying a petition lies exclusively within the federal court of appeals. Community Nutrition Inst. v. Novitch, 583 F.Supp. 294, 296 (D.D.C.1984), aff'd, 773 F.2d 1356 (D.C.Cir.1985). The Food, Drug, and Cosmetic Act states that "any person who will be adversel......
  • In re Natural Res. Def. Council, No. 10–1142.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 2011
    ...Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099–1100 (D.C.Cir.2003). Community Nutrition Institute v. Novitch, 583 F.Supp. 294 (D.D.C.1984), upon which the NRDC relies, is not to the contrary; there the district court ruled this court had jurisdiction “because the FDA ......
  • United States v. McHugh, Cr. No. 83-045 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • March 22, 1984
    ..."writing" will prevent subsequent debate relative to the precise extent of the reserved appellate issue: this is an imperative 583 F. Supp. 294 for finality of the plea bargaining process; it will minimize argument that there was a misunderstanding when the plea was entered and th......
4 cases
  • Community Nutrition Institute v. Young, Nos. 84-1153
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • September 24, 1985
    ...later, on February 17, 1984, the FDA denied the objectors' request for a hearing. Thereafter, on March 22, 1984, the District Court, 583 F.Supp. 294, denied the second motion for a temporary restraining order and granted FDA's motion to dismiss the complaint on the ground that jurisdiction ......
  • O'Brien v. U.S., No. CIV. 2:97-CV-145-WCO.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • February 13, 1998
    ...Review of an FDA decision denying a petition lies exclusively within the federal court of appeals. Community Nutrition Inst. v. Novitch, 583 F.Supp. 294, 296 (D.D.C.1984), aff'd, 773 F.2d 1356 (D.C.Cir.1985). The Food, Drug, and Cosmetic Act states that "any person who will be adversel......
  • In re Natural Res. Def. Council, No. 10–1142.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 2011
    ...Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099–1100 (D.C.Cir.2003). Community Nutrition Institute v. Novitch, 583 F.Supp. 294 (D.D.C.1984), upon which the NRDC relies, is not to the contrary; there the district court ruled this court had jurisdiction “because the FDA ......
  • United States v. McHugh, Cr. No. 83-045 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • March 22, 1984
    ..."writing" will prevent subsequent debate relative to the precise extent of the reserved appellate issue: this is an imperative 583 F. Supp. 294 for finality of the plea bargaining process; it will minimize argument that there was a misunderstanding when the plea was entered and th......

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