Pearson v. Shalala, s. 98-5043

• Decision Date: 02 April 1999
• Docket Number: 98-5084,Nos. 98-5043,s. 98-5043
• Citation: 172 F.3d 72
• Parties: Durk PEARSON and Sandy Shaw, American Preventive Medical Association and Citizens for Health, Appellants, v. Donna E. SHALALA, Secretary, United States Department of Health and Human Services, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 72

172 F.3d 72

335 U.S.App.D.C. 254

Durk PEARSON and Sandy Shaw, American Preventive Medical Association and Citizens for Health, Appellants, v. Donna E. SHALALA, Secretary, United States Department of Health and Human Services, et al., Appellees.

Nos. 98-5043, 98-5084.

United States Court of Appeals District of Columbia Circuit.

April 2, 1999.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, and GARLAND, Circuit Judges.

O R D E R

Per Curiam:

Upon consideration of appellees' suggestion for rehearing en banc, and the absence of a request by any member of the court for a vote, it is

ORDERED that the suggestion be denied.

A statement by Circuit Judge SILBERMAN is attached.

SILBERMAN, Circuit Judge, concurring in the denial of rehearing en banc:

The government, in its petition for rehearing and suggestion for rehearing en banc, advances an argument that it did not present at any stage in this appeal--the government candidly concedes as much. We are told that the panel's decision is anomalous in light of the regime that governed the sale and labeling of dietary supplements prior to Congress' enactment of the Nutrition Labeling and Education Act of 1990, 104 Stat. 2353. This Act created a safe harbor from drug status (and the rigorous testing attendant thereto) for certain dietary supplements whose labels include health claims. Under the prior regime, putting a health claim on a dietary supplement transformed the dietary supplement into a "drug," thereby triggering the rigorous drug approval process. The government asserts that neither employing a health claim as a trigger to the drug approval process (which was never tested in litigation), nor subjecting "drugs" to the drug approval process, raises a First Amendment concern. From this premise, the government now reasons that the FDA's present approach of exempting from drug status only those health-claim bearing dietary supplements whose claims attain "significant scientific agreement" easily passes muster because the greater power to subject a health-claim bearing dietary supplement to the drug approval process must include the lesser power to refuse to exempt some health claim-bearing dietary supplements from the drug approval process. (The government also seems to suggest that the statutory provisions governing the labeling of drugs, which applied to all health claim-bearing dietary supplements prior to 1990, survive First Amendment scrutiny, and hence that today's statutory and regulatory provisions governing the labeling of dietary supplements should be upheld.)

While I am dubious of the force of such "greater includes the lesser" logic in the commercial speech context, see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 510-13, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (plurality), I do not think it appropriate for us to formally consider and decide this argument. The government, like any other litigant, cannot be heard to advance a major nonjurisdictional argument for the first time at the rehearing stage. That would be palpably unfair to appellants and would jeopardize our own ability to process cases efficiently. See, e.g., Benavides v. DEA, 976 F.2d 751, 753 (D.C.Cir.1992); Keating v. FERC, 927 F.2d 616, 625 (D.C.Cir.1991); Schooler v. Schooler, 173 F.2d 299, 303 (D.C.Cir.1948). Indeed, we even refuse to consider arguments an appellant asserts for the first time in...