93 L. Ed. 2d 757, 107 S. Ct. 750 (1987) (quoting § 10 Of the Administrative Procedure Act, 5 U.S.C. § 702).
Under the APA, a plaintiff must meet two requirements. First, the person claiming the right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). When review is sought under the general review provisions of the APA, the challenged "agency action" must be "final agency action". Id. (quoting 5 U.S.C. § 704). The Court finds that the disputed regulations, promulgated after an announcement of a proposed rule and consideration of comments by interested parties, are clearly definitive and represent "final agency action."
Under the second requirement of § 702, a plaintiff must show that he has suffered legal wrong because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). The plaintiff must establish that the injury he complains of falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. Id. The essential inquiry is whether Congress intended for a particular class of plaintiffs to be relied upon to challenge agency disregard of the law. Clarke v. Securities Industry Ass'n, 479 U.S. 388, 399, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987). In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit suit. Id. The "zone of interest" inquiry seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives. Id. at 397, fn. 12. Congress clearly crafted § 343(q)(4) for the benefit of people who shop for produce and fish at grocery stores throughout this nation.
Plaintiff Arent, a frequent purchaser of produce and fish, falls into this category and Plaintiff Center for Science in the Public Interest and Plaintiff Public Citizen represent members who want access to nutrition information when they purchase produce and fish. (Pls.' Compl. at 2-3) Given their direct interest in the resolution of the issue before the Court, it is beyond doubt that Congress intended for this class of plaintiffs to challenge any agency disregard of § 343(q)(4).
The Court holds, therefore, that the Plaintiffs have standing to bring this suit and the Defendant's Motion to Dismiss on this ground is denied.
B. Action Committed to Agency Discretion Under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2).
Under § 701(a)(2) of the Administrative Procedure Act, an agency action is not subject to judicial review if such action "is committed to agency discretion by law." When deciding whether Congress has committed a particular action to agency discretion by law, the Court must remember that the Supreme Court has read the APA as embodying a basic presumption of judicial review. Lincoln v. Vigil, 124 L. Ed. 2d 101, 113 S. Ct. 2024, 2030 (1993) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967)). Yet, review is not appropriate in those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. Id. at 2030-31. (quoting Heckler v. Chaney, 470 U.S. 821, 830, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985)). In such a case the statute can be taken to have committed the decisionmaking to the agency's judgment absolutely. Id. at 2031.
With regard to this issue, the Defendant's reliance on Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985), is misplaced. Nothing in the APA or in the holding or policy of Heckler, precludes review of a proper plaintiff's timely challenge of an agency's announcement of its interpretation of a statute. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Brock, 251 U.S. App. D.C. 239, 783 F.2d 237, 245 (D.C. Cir. 1986). Though Courts are not qualified to assess enforcement strategies, they are uniquely qualified to decide a legal challenge to an agency's substantive statutory interpretation. Id. The Plaintiffs are not challenging the manner in which the Defendant chooses to enforce its interpretation of the NLEA. The Plaintiffs are challenging the interpretation itself and its implementing regulations. This is not the type of discretionary judgment concerning the allocation of enforcement resources that Heckler shields from judicial review. See, Edison Electric Institute v. U.S. EPA, 302 U.S. App. D.C. 60, 996 F.2d 326, 333 (D.C. Cir. 1993). In addition, the Court does not find that the terms "substantial compliance" and "significant number of retailers" are so broad that the Court has no meaningful standard to apply. Though the boundaries of agency discretion are broad under 343(q)(4), those boundaries exist nonetheless. If, for example, ninety percent of surveyed stores provided no nutrition information that would be a significant number of retailers out of compliance. Yet, the Defendant presumably would argue that she could find "substantial compliance" without a court disturbing her decision. The Court does not believe that Congress intended to create such a scheme.
The Court, therefore, denies the Defendant's Motion to Dismiss on this ground.
C. Review of the Regulations Under the "Arbitrary and Capricious" Standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)
On the merits, the Plaintiffs ask the Court to invalidate the regulations promulgated by the FDA which define "substantial compliance" as that term is used in 21 U.S.C. § 343(q)(4)(B)(ii). The Supreme Court opinion in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), provides the analytical framework which the Court must use to review an agency's construction of a statute. In Chevron, the Supreme Court described a court's initial inquiry:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.