FDA identified three areas where its input and further consideration might be necessary: selection of ingredients for review, composition of the program's expert panel, and publication of final reports. At these two meetings, CTFA plainly appears as proponent of a plan and FDA as critic recommending appropriate revisions.
Based on the record, the Court finds that CTFA was not advising the FDA about the cosmetic ingredient testing program. CTFA was presenting a voluntary, industry-sponsored proposal and seeking the FDA's comments and advice. For a variety of reasons including budget limitations, statutory authority, and other important priorities, the FDA had been unable either to develop or to require a cosmetic testing program. Under these circumstances CTFA took the initiative. This is the converse of Food Chemical News, supra, where the agency, acting under clear regulatory authority, solicited industry and consumer viewpoints on amendments which the agency itself was preparing. Granting that FDA had frequently expressed its concern for cosmetic ingredient testing, the Court finds that planning had evolved beyond agency control. CTFA in its own discretion was ultimately to decide whether or not to initiate a testing program. Such a relationship of agency and group does not rise to the level of a FACA "advisory" relationship. Wolfe v. Weinberger, 403 F. Supp. 238 (D.D.C. 1975)
For essentially the same reasons, the FDA-CTFA contacts here cannot comport with the Act's directive that the agency and not the advisory committee determine "action to be taken and policy to be expressed." 5 U.S.C. App. I § 9(b); see also id. § 2(b)(6). Congress intended that federal decisionmakers, not their advisers or delegatees, execute federal policy.
In the present matter FDA was not undertaking a regulatory program. Indeed, there are serious questions as to whether FDA had the authority to sponsor an ingredient testing program. See note 5, supra. At issue were not agency policy matters which FDA could consider and resolve, with assistance from an advisory group. Rather, FDA had before it a voluntary plan drafted by CTFA, to be amended by CTFA, and eventually to be implemented or rejected by CTFA. In the final analysis, the action to be taken and the decisions to be made were unilateral. The Court concludes that FDA was not obtaining advice or recommendations from CTFA at the meetings and that the parties were therefore not bound by the provisions of the Federal Advisory Committee Act. Neither chartering of CTFA nor public access to FDA - CTFA meetings is required.
Accordingly, upon consideration of Federal Defendants' and Intervenor's Motions to Dismiss or, in the Alternative, for Summary Judgment, Plaintiff's Cross Motion for Summary Judgment, the memoranda of points and authorities in support thereof and in opposition thereto, oral argument of counsel having been heard, and for the reasons set forth in the accompanying Memorandum, it is by the Court this 12th day of March, 1975
ORDERED that Federal Defendants' and Intervenor's Motions for Summary Judgment be, and the same hereby are, granted; and it is further
ORDERED that plaintiff's Cross Motion for Summary Judgment be, and the same hereby is, denied.
John Lewis Smith, Jr. / United States District Judge