Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645 (1973)
Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645 (1973)
645
93 S.Ct. 2488
37 L.Ed.2d 235
Syllabus
Respondent drug marketers filed suit for a declaratory judgment that their
drugs containing pentylenetetrazol are generally recognized as safe and
effective and thus are not 'new drugs' within the meaning of 201(p) of
the Federal Food, Drug and Cosmetic Act of 1938, as amended. They also
sought exemption under 107(c)(4), the grandfather clause, of the 1962
amendments to the Act. The Food and Drug Administration (FDA)
Commissioner, based on NASNRC panel reports, concluded that there
was a lack of substantial evidence that the drugs were effective for their
intended uses and gave notice of his intention to initiate proceedings to
withdraw approval of the new drug applications (NDA's). In light of
FDA's position that withdrawal of approval of an NDA would operate to
remove marketing approval for all drugs of similar composition, known as
'me-too' drugs, whether or not expressly covered by an effective NDA, the
Commissioner invited holders of NDA's for drugs containing
pentylenetetrazol 'and any interested person who might be adversely
affected by their removal from the market' to submit 'adequate and wellcontrolled studies' to establish the effectiveness of the drugs. Only one
NDA holder submitted further evidence, which the Commissioner held
did not satisfy the statutory standard. He gave notice of intent to issue an
order withdrawing approval of the NDA's, and only one NDA holder
requested a hearing but filed no supporting data. The Commissioner issued
orders withdrawing approval of the NDA's and no appeal was taken.
Respondents here all market 'me-too' drugs, none of which was expressly
covered by an effective NDA. The District Court held that FDA should
In this case Bentex and some 20 other firms that market drugs containing
pentylenetetrazol filed this suit for a declaratory judgment that their drugs
containing pentylenetetrazol are generally recognized as safe and effective, and
thus not 'new drugs' within the meaning of 201(p)(1) of the Federal Food,
Drug, and Cosmetic Act of 1938, as amended, 76 Stat. 781, 21 U.S.C. 321(p)
(1). They also sought exemption from the new effectiveness requirements by
reason of 107(c)(4) of the 1962 amendments to the Act, known as the
'grandfather' clause.
The District Court held that although it could determine whether the drugs
were 'new' or 'grandfathered' drugs, its jurisdiction was concurrent with that of
FDA and that FDA should resolve the 'new drug' issue in an administrative
proceeding. It entered an injunction to preserve the status quo and ruled that if
FDA should decline to hold a hearing it would determine the issue. The Court
of Appeals reversed and remanded with directions that the District Court
determine whether the challenged drugs may lawfully be marketed without
approved NDA's. 463 F.2d 363. It held that FDA has no jurisdiction, either
primary or concurrent, to decide in an administrative proceeding what is a 'new
drug' for which an NDA is required. In its view the 1962 Act established two
forums for the regulation of drugs: an administrative one for premarketing
clearances for 'new drugs' or withdrawal of previously approved NDA's, with
the right of appeal; and, second, a judicial one for enforcement of the
requirement that 'new drugs' be cleared as safe and effective before marketing
by providing the Government with judicial remedies of seizure, injunction, and
criminal prosecution available solely in the District Court. Id., at 371372.
FDA, as a result of an NASNRC study and after due notice, faced up to the
problem of proposing withdrawal of drugs found to be lacking in substantial
evidence of effectiveness. One method would be to have 1,000 withdrawal
hearingsperhaps as many as 3,500, each one lasting probably for weeks. The
cost in time and budget would be enormous. Accordingly, FDA issued
regulations,2 already discussed in Weinberger v. Hynson, Westcott & Dunning,
Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207, defining the 'scientific
principles which characterize an adequate and well-controlled clinical
investigation,'3 which elaborates on the statutory 'substantial evidence' test.
And, as we held in Hynson, no basis for a hearing under these regulations
would be laid unless a party seeking a hearing proffered at least some evidence
of that nature and quality.
By May 1972, 102 final orders effecting withdrawal of approval for 452 NDA's
had been issued; and they resulted in the removal from the market of an
additional 1,473 'me-too' drugs. 4 FDA was still troubled because under the
1962 Act no census of the marketplace was authorized. That is why Congress
enacted the Drug Listing Act of 1972, 86 Stat. 559, 21 U.S.C. 331(p),
335(e), 360(e), (f), (c), (d) (1970 ed., Supp. II). That Act requires
manufacturers to submit to FDA a list of all drugs they market, including data
showing their composition, labeling, and advertising.5 The Senate Report
stated:6
'The effective enforcement of the drug provisions of the Act requires the ready
availability of a current inventory of all marketed drugs. The Secretary is just
completing a thorough review of the effectiveness of drugs marketed pursuant
to new drug applications during the period 19381962, as required by the
Drug Amendments of 1962. Application of the results of this important review
to related drugs would be frustrated if a list of all marketed drugs were not
easily obtained.'
FDA also realized that it is impossible to apply the 1962 amendments to overthe-counter (OTC) drugs on a case-by-case basis. There are between 100,000
and 500,000 of these products, few of which were previously approved by
FDA. In May 1972 FDA adopted a procedure for determining whether
particular OTC products, not covered by NDA's are safe products, not
ineffective, and not misbranded. 37 Fed.Reg. 9464. The procedure involves the
establishment of independent expert panels for different categories of OTC
drugs (e.g., antacids, laxatives, analgesic) which would review all available
This case, like the cross-petition in the Hynson case (No. 72 414) raises the
question whether FDA has authority to decide in an administrative hearing
whether a drug satisfies the new effectiveness requirements of the Act. As
noted, the Commissioner ordered that three NDA's for the drugs in question be
withdrawn. Review of the order was not sought in the Court of Appeals as
provided in 505(h), 21 U.S.C. 355(h). Rather, the aggrieved manufacturers
of 'me-too' drugs filed suit in the District Court, with the results we have
already detailed. The narrow question is whether the FDA may decide whether
a drug is a 'new drug' on referral from a district court.
10
11
That court, in holding that FDA has no jurisdiction to determine the 'new drug'
status of a drug, stated that the question of 'new drug' status is never presented
when an application of a manufacturer for approval is filed. Parties, of course,
cannot confer jurisdiction; only Congress can do so. The line sought to be
drawn by the Court of Appeals is FDA action on NDA's pursuant to 505(d)
and 505(e), on the one hand, and the question of 'new drug' determination on
the other. We can discern no such jurisdictional line under the Act. The FDA,
as already stated, may deny an NDA where there is a lack of 'substantial
evidence' of the drug's effectiveness, based, as we have outlined, on clinical
We think that it is implicit in the regulatory scheme, not spelled out in haec
verba, that FDA has jurisdiction to decide with administrative finality, subject
to the types of judicial review provided, the 'new drug' status of individual
drugs or classes of drugs. The deluge of litigation that would follow if 'me-too'
drugs and OTC drugs had to receive de novo hearings in the courts would inure
to the interests of manufacturers and merchants in drugs, but not to the interests
of the public that Congress was anxious to protect by the 1962 amendments, as
well as OTC drugs and drugs covered by the 1972 Act. We are told that FDA is
incapable of handling a caseload of more than perhaps 10 or 15 de novo judicial
proceedings in a year. Clearly, if FDA were required to litigate, on a case-bycase basis, the 'new drug' status of each drug now marketed, the regulatory
scheme of the Act would be severely undermined, if not totally destroyed.
Moreover, a case-by-case approach is inherently unfair because it requires
compliance by one manufacturer while his competitors marketing similar drugs
remain free to violate the Act. In a case much more clouded with doubts than
this one, we held that we would not 'in the absence of compelling evidence that
such was Congress' intention . . . prohibit administrative action imperative for
the achievement of an agency's ultimate purposes.' Permian Basin Area Rate
Cases, 390 U.S. 747, 780, 88 S.Ct. 1344, 1367, 20 L.Ed.2d 312. And see Ricci
v. Chicago Mercantile Exchange, 409 U.S. 289, 304306, 93 S.Ct. 573, 581
583, 34 L.Ed.2d 525.
13
We conclude that the District Court's referral of the 'new drug' and the
'grandfather' issues to FDA was appropriate, as these are the kinds of issues
peculiarly suited to initial determination by the FDA. As the District Court said:
'Evaluation of conflicting reports as to the reputation of drugs among experts in
the field is not a matter well left to a court without chemical or medical
background.' The determination whether a drug is generally recognized as safe
and effective within the meaning of 201(p)(1) necessarily implicates complex
chemical and pharmacological considerations. Threshold questions within the
peculiar expertise of an administrative agency are appropriately routed to the
agency, while the court stays its hand. As we stated in Far Eastern Conference
v. United States, 342 U.S. 570, 574575, 72 S.Ct. 492, 494, 96 L.Ed. 576:
'(I)n cases raising issues of fact not within the conventional experience of
judges or cases requiring the exercise of administrative discretion, agencies
created by Congress for regulating the subject matter should not be passed
over. This is so even though the facts after they have been appraised by
specialized competence serve as a premise for legal consequences to be
judicially defined. Uniformity and consistency in the regulation of business
entrusted to a particular agency are secured, and the limited functions of review
by the judiciary are more rationally exercised, by preliminary resort for
ascertaining and interpreting the circumstances underlying legal issues to
agencies that are better equipped than courts by specialization, by insight
gained through experience, and by more flexible procedure.' And see Port of
Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S.
62, 68, 91 S.Ct. 203, 208, 27 L.Ed.2d 203; Ricci v. Chicago Mercantile
Exchange, supra, 409 U.S. at 304306, 93 S.Ct. at 581583.
14
Reversed.
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16