This month we discuss Natural Resources Defense Council v. U.S. Food and Drug Administration,1 in which the U.S. Court of Appeals for the Second Circuit vacated and remanded the district court’s decision granting summary judgment to the Food and Drug Administration (FDA). The Natural Resources Defense Council (NRDC) sought to compel the FDA to finalize its regulation of two chemicals found in many hand soaps. In its decision, written by Judge Rosemary S. Pooler and joined by Judge Gerard E. Lynch and Judge Brian M. Cogan,2 the court concluded that the NRDC had Article III standing to bring an action to compel the FDA to finalize its regulation of triclosan, but not of triclocarban.
The court held that the NRDC presented sufficient evidence to withstand summary judgment as to triclosan of a member’s direct exposure to a potentially dangerous product, but that the NRDC did not satisfy the injury-in-fact element as to triclocarban. The court further held that an individual’s ability to avoid the injury does not negate standing.
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