First Fishery – Score for the Importer!

By Dara Katcher Levy –

On December 23, 2009, FDA filed a Motion To Dismiss the First Fishery import matter that we previously blogged about back in late October.  In short, First Fishery had filed suit seeking declaratory judgment and injunctive relief with regard to its product’s placement on Import Alert 99-08 – Detention Without Physical Examination of Processed Foods for Pesticides.  First Fishery alleged that a finding of pesticide in its product was subject to an exemption under the Federal Food, Drug, and Cosmetic Act, and that there had been no final determination by FDA that the sampled product was violative before placing the product on Import Alert..

In its Motion to Dismiss, FDA acknowledges that in November, after correspondence with First Fishery and with the EPA (and after the First Fishery lawsuit was filed), FDA voluntarily released the detained entry and on December 3, 2009, removed the product from Import Alert.  Because of these actions, FDA asserts there is no remaining case or controversy and moves to dismiss.

This case is a prime example that, although FDA may have broad discretion over imports, an appropriate legal challenge in the correct circumstance may force FDA to rein itself in.