DC District Court Holds that Dietary Guidelines Are Not Subject to Judicial Review Under the Administrative Procedure Act

By Riëtte van Laack –

In a December 12, 2011 decision, Judge R. Leon of the District Court for the District of Columbia granted Defendants’ Motion to Dismiss an action by Physicians Committee for Responsible Medicine (Plaintiff) requiring that Defendants FDA and USDA withdraw the “MyPyramid” food diagram and dietary guidelines, and adopt Plaintiff’s proposed “Power Plate” food diagram and dietary guidelines instead.  Plaintiff alleged that certain portions of the Dietary Guidelines do not reflect the preponderance of current and scientific medical knowledge because, among others, they only identify foods that should be eaten more frequently and do not identify which foods should be eaten less frequently.

Judge Leon dismissed the case on the grounds that Plaintiff failed to demonstrate that it had standing because it did not present evidence that it (or its members) had suffered an actual or imminent concrete and particularized injury.  As required by the National Nutrition Monitoring & Related Research Act (“Nutrition Act”), Defendants published a report of nutritional and dietary information and the Dietary Guidelines.  Plaintiff failed to present evidence as to how these Dietary Guidelines affected or interfered Plaintiff’s efforts to improve the health and well-being of Americans.  In addition, Defendants’ report and Dietary Guidelines, published every five years as required by the Nutrition Act, does not constitute an agency action.  In fact, the Nutrition Act specifically states that the Dietary Guidelines do not constitute a rule or regulation issued by a Federal agency.  Thus, they are not subject to judicial review under the APA and Plaintiff failed to state a claim upon which relief could be granted.