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Annie Tummino, et al v. Margaret Hamburg

April 4, 2013


The opinion of the court was delivered by: Korman, J.:



Plan B and Plan B One-Step are emergency contraceptives that can be taken to reduce the risk of pregnancy after unprotected intercourse. In 1999, Plan B became the first emergency contraceptive drug approved for prescription-only use in the United States. In 2006, the Food and Drug Administration ("FDA") approved non-prescription access to Plan B for women 18 and older, and with a prescription to adolescents under the age of 18. Subsequently, the FDA was ordered to make it available without a prescription to adolescents aged 17. Tummino v. Torti, 603 F. Supp. 2d 519 (E.D.N.Y. 2009). Even for women 17 and older, Plan B can only be purchased at a pharmacy and requires government-issued proof of age. Plan B One-Step was approved by the FDA in 2009 and is available without a prescription subject to the same restrictions. Though Plan B itself is no longer marketed, generic versions are available.

Both contraceptives contain the same total dose of levonorgestrel, a synthetic hormone similar to the naturally occurring hormone progesterone; Plan B consists of two pills containing 0.75 mg each of levonorgestrel that are to be taken 12 hours apart, while Plan B One-Step consists of one pill containing 1.5 mg of levonorgestrel. Studies have shown that combining the two 0.75 mg doses of the hormone into one pill does not decrease its effectiveness; indeed, the two Plan B pills may be taken simultaneously, fewer than 12 hours apart, or up to 24 hours apart, without any adverse consequences. Both Plan B and Plan B One-Step are most effective when taken immediately after intercourse and preferably no later than 24 hours later, though they may retain some effectiveness if taken within 72 hours. Neither drug has any known serious or long-term side effects, though they may have some mild short-term side effects, such as nausea, fatigue, and headache.

Levonorgestrel-based emergency contraception "interferes with prefertilization events. It reduces the number of sperm cells in the uterine cavity, immobilizes sperm, and impedes further passage of sperm cells into the uterine cavity. In addition, levonorgestrel has the capacity to delay or prevent ovulation from occurring." U.S. Gov't Accountability Office, GAO-06-109, Food and Drug Administration: Decision Process to Deny Initial Application for Over-the-Counter Marketing of the Emergency Contraceptive Drug Plan B Was Unusual at 12 (November 2005), Case No. 05-cv-366, Doc. No. 68-2 (hereinafter "GAO Report").*fn1 These contraceptives "have not been shown to cause a postfertilization event-a change in the uterus that could interfere with implantation of a fertilized egg." Id. at 13. Indeed, Diana Blithe, the biochemist who supervises research on contraception at the National Institutes of Health ("NIH"), opined that the possibility of levonorgestrel-based emergency contraceptives having an effect on implantation of fertilized eggs should "definitely" be taken off the labels for those drugs. Pam

Belluck, Abortion Qualms on Morning-After Pill May Be Unfounded, N.Y. Times, June 6, 2012, at A1. Consistent with this position, the NIH removed statements regarding emergency contraception's possible effect on implantation from its website. Id. Nevertheless, because it would be "unethical and logistically difficult to conduct the necessary research" to conclusively establish that levonorgestrel-based contraceptives do not interfere with implantation, "the possibility of a postfertilization event cannot be ruled out." GAO Report at 13. Presumably for this reason, the FDA-approved label for Plan B and its generic equivalents still suggests, without affirmative evidence, that "Plan B may also work by preventing fertilization of an egg . . . or by preventing attachment (implantation) to the uterus (womb)."

Plaintiffs in this case-organizations and individuals concerned with women's health, as well as minors and their parents-seek to expand the availability of Plan B and all emergency contraceptives. This action was originally brought in January 2005 to challenge the FDA's denial of a Citizen Petition seeking over-the-counter ("OTC") access to Plan B for women of all ages. The complaint asserted that the FDA's denial of the Citizen Petition, which it considered along with a number of proposals regarding over-the-counter access to emergency contraception submitted by Plan B's sponsor,*fn2 was arbitrary and capricious because it was not the result of reasoned and good faith agency decision-making. In a prior opinion, I concluded that the plaintiffs were right. Tummino v. Torti, 603 F. Supp. 2d 519 (E.D.N.Y. 2009).*fn3 In light of the overwhelming evidence of political pressure underlying the agency's actions, I vacated the FDA's denial of the Citizen Petition and remanded for the agency to exercise its discretion without impermissible political intrusion. I also directed the FDA to make Plan B available to 17-year-old women without a prescription, because the same evidence relied on by the agency to support over-the-counter access to the drug by 18-year-olds applied equally to 17-year-olds-a holding which the FDA ultimately conceded was "consistent with the scientific findings [the FDA] made in 2005." FDA Statement, Updated FDA Action on Plan B (levonorgestrel) Tablets (Apr. 22, 2009).

The plaintiffs argued that the ultimate relief they sought-over-the-counter access regardless of age-should have been granted without a remand because "the agency has acted so improperly and in such bad faith that it cannot be trusted to conduct a fair assessment of the scientific evidence." Pls.' Reply Mem. in Supp. of Mot. for Summ. J. at 9, Case No. 05-cv-366, Doc. No. 257. I rejected this argument, although I agreed with the plaintiffs that the FDA bowed to political pressure emanating from the White House and departed from agency policy. I declined to grant the relief plaintiffs requested for two principal reasons. First, the Commissioner of the FDA had resigned and his replacement, as well as a new Deputy Commissioner, had been nominated by the newly elected President. This change in leadership suggested that the FDA could be "trusted to conduct a fair assessment of the scientific evidence." Id. Second, it was my view that the decision whether to make Plan B available without a prescription regardless of age was one that should be made by the FDA, to which Congress had entrusted the responsibility, and not by a federal district judge.

The FDA did not rule on the remanded Citizen Petition for almost three years. During this time, the agency again considered a proposal-referred to as a supplemental new drug application ("SNDA")-from Plan B's manufacturer; this proposal would have allowed over- the-counter access to Plan B One-Step, the one-pill emergency contraceptive product, for all ages. The FDA agreed to approve this SNDA. FDA Commissioner Margaret Hamburg explained the process by which the FDA had reached its conclusion, with particular emphasis on the scientific evidence:

The Center for Drug Evaluation and Research (CDER) completed its review of the Plan B One-Step application and laid out its scientific determination. CDER carefully considered whether younger females were able to understand how to use Plan B One-Step. Based on the information submitted to the agency, CDER determined that the product was safe and effective in adolescent females, that adolescent females understood the product was not for routine use, and that the product would not protect them against sexually transmitted diseases. Additionally, the data supported a finding that adolescent females could use Plan B One-Step properly without the intervention of a healthcare provider.

It is our responsibility at FDA to approve drugs that are safe and effective for their intended use based on the scientific evidence. The review process used by CDER to analyze the data applied a risk/benefit assessment consistent with its standard drug review process. Our decision-making reflects a body of scientific findings, input from external scientific advisory committees, and data contained in the application that included studies designed specifically to address the regulatory standards for nonprescription drugs. CDER experts, including obstetrician/gynecologists and pediatricians, reviewed the totality of the data and agreed that it met the regulatory standard for a nonprescription drug and that Plan B One-Step should be approved for all females of child-bearing potential.

Statement from FDA Commissioner Margaret Hamburg, M.D., on Plan B One-Step (Dec. 7, 2011), Case No. 05-cv-366, Doc. No. 339-2. Commissioner Hamburg then observed that she had "reviewed and thoughtfully considered the data, clinical information, and analysis provided by CDER," and she expressly agreed that "there is adequate and reasonable, well-supported, and science-based evidence that Plan B One-Step is safe and effective and should be approved for nonprescription use for all females of child-bearing potential." Id.

Nevertheless, she explained that Kathleen Sebelius, the Secretary of Health and Human Services, "invoking her authority under the Federal Food, Drug, and Cosmetic Act to execute its provisions," disagreed with the agency's decision "to allow the marketing of Plan B One-Step nonprescription for all females of child-bearing potential" and ordered Commissioner Hamburg to deny the Plan B One-Step SNDA. Secretary Sebelius explained that she had concluded "that the data submitted for this product do not establish that prescription dispensing requirements should be eliminated for all ages." Memorandum from Kathleen Sebelius, Sec'y Health and Human Servs., to Margaret Hamburg, Comm'r of Food and Drugs (Dec. 7, 2011), Case No. 05-cv-366, Doc. No. 339-1 (hereinafter "Sebelius Mem."). More specifically, she observed:

The label comprehension and actual use studies submitted to FDA do not include data on all ages for which the drug would be approved and available over-the-counter. Yet, it is commonly understood that there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age, which I believe are relevant to making this determination as to non-prescription availability of this product for all ages. Although the average age of the onset of menses for girls in the United States is 12.4 years of age, about ten percent of girls reach menarche by 11.1 years of age. If the application is approved, the product would be available, without a prescription or other point-of-sale restrictions, even to the youngest girls of reproductive age.

Id. (citation omitted). The President endorsed this decision, explaining that "the reason [Secretary Sebelius] made this decision was she could not be confident that a 10-year-old or an 11-year-old go into a drugstore, should be able-alongside bubble gum or batteries-be able to buy a medication that potentially, if not used properly, could end up having an adverse effect." Statement by the President (Dec. 8, 2011), available at The reader will observe that Secretary Sebelius did not say that, "if not used properly," levonorgestrel-based emergency contraception could have an "adverse effect" on the youngest girls of reproductive age, nor did she include within that group girls as young as 10. Indeed, the drug is currently available to the youngest girls of reproductive age with a prescription.

This case is not about the potential misuse of Plan B by 11-year-olds. These emergency contraceptives would be among the safest drugs sold over-the-counter, the number of 11-year- olds using these drugs is likely to be miniscule, the FDA permits drugs that it has found to be unsafe for the pediatric population to be sold over-the-counter subject only to labeling restrictions, and its point-of-sale restriction on this safe drug is likewise inconsistent with its policy and the Food, Drug, and Cosmetic Act as it has been construed. Instead, the invocation of the adverse effect of Plan B on 11-year-olds is an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.

Some of those burdens are detailed in a research letter published in the Journal of the American Medical Association in January 2012, which described the results of a study that investigated the ability of 17-year-old women to access emergency contraception. Tracey A. Wilkinson et al., Research Letter: Access to Emergency Contraception for Adolescents, 307 J. Am. Med. Ass'n 362 (January 25, 2012). In Dr. Wilkinson's study, "female research assistants posing as [17-year-old] adolescents who recently had unprotected intercourse were randomly assigned to call every commercial pharmacy" in five geographically diverse cities and ask about emergency contraception. Id. "The study revealed that approximately 20% of pharmacies did not have emergency contraception available on the same day that the patient called the pharmacy." Wilkinson Decl. ¶ 7, Case No. 12-cv-763, Doc. No. 6. In addition, "in 19% of the calls, the caller was incorrectly told she could not access emergency contraception at all because of her age, despite the fact that the FDA regime allows over-the-counter access by 17-year-olds." Id. ¶ 8. Dr. Wilkinson expressed her shock that "close to 1 in 5 calls made by adolescents resulted in them being told they could not access emergency contraception at all." Id. "[T]he rate of misinformation," Dr. Wilkinson explained, "was statistically significantly worse in low-income neighborhoods." Id. In addition, Dr. Wilkinson's study showed that "of the 943 pharmacies called, only 4.7% of them were open 24 hours." Id. ¶ 9.

All of these barriers, not to speak of the need for adolescents under 17 to find a doctor and obtain a prescription, "are created or exacerbated by the FDA's unusual treatment of emergency contraception [and] can have the cumulative effect of preventing some women from accessing the drug within the short time frame during which it will be effective, thereby exposing them to increased risk of unwanted pregnancy and making the product's limited OTC status useless. Unfortunately, this risk is especially great for young women and low-income women, two groups that could significantly benefit from timely access to and use of the product." Id. ¶ 10.

I pause to add these brief words before I begin the discussion of the legal issues. This case has proven to be particularly controversial because it involves access to emergency contraception for adolescents who should not be engaging in conduct that necessitates the use of such drugs and because of the scientifically unsupported speculation that the drug could interfere with implantation of fertilized eggs. Nevertheless, the issue in this case involves the interpretation of a general statutory and regulatory scheme relating to the approval of drugs for over-the-counter sale. The standards are the same for aspirin and for contraceptives. While the FDA properly recognizes that cognitive and behavioral differences undermine "the ability of adolescents to make reasoned decisions about engaging in sexual intercourse," the standard for determining whether contraceptives or any other drug should be available over-the-counter turns solely on the ability of the consumer to understand how to use the particular drug "safely and effectively." Ex. A-4 to Pls.' 2007 Mot. for Summ. J. at T-31097, Case No. 05-cv-366, Doc. No. 235-5. I decide this case based only on my understanding of the applicable standard.


A.Procedural Posture

Secretary Sebelius's directive to the FDA to reject the Plan B One-Step SNDA forced the agency to ride roughshod over the policies and practices that it has consistently applied in considering applications for switches in drug status to over-the-counter availability. Before reviewing these unexplained and unjustified departures, a brief discussion of the procedural posture of the case is necessary, although I pass over much of its complicated history. The directive of the Secretary did not directly apply to the Citizen Petition, the denial of which I have subject matter jurisdiction to review. Nevertheless, the denial of the Citizen Petition was inevitable after the Secretary ordered the FDA to reject the SNDA for Plan B One-Step because the Secretary concluded that the sponsor's "label comprehension and actual use studies . . . do not include data on all ages for which the drug would be approved and available over-the-counter." Sebelius Mem. This pronouncement made it impossible as a practical matter for the FDA to approve the Citizen Petition, because it likewise did not include such data. Indeed, the Citizen Petition denial came only five days later, although the FDA had sat on the Citizen Petition for three years.

The plaintiffs have moved for a preliminary injunction and summary judgment. In essence, they ask that the Citizen Petition be granted and that FDA be required to make all levonorgestrel-based emergency contraception, including Plan B, available for over-the-counter sales without age or point of sale restrictions. The defendants have cross-moved for summary judgment. While they incorporate, in one sentence, arguments that they made earlier in this proceeding, their motion centers on the argument that the FDA has no set policy of extrapolating data from adults to pediatric populations.

B.Deviations from Policy

In INS v. Yang, 519 U.S. 26 (1996), the Supreme Court held: "Though the agency's decision is unfettered at the outset, if it announces and follows-by rule or by settled course of adjudication-a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as 'arbitrary, capricious, [or] an abuse of discretion' within the meaning of the Administrative Procedure Act." Id. at 32; see also Office of Commc'n of the Church of Christ v. FCC, 560 F.2d 529, 532 (2d Cir. 1977) ("Here the Commission is seeking to change its policy, and . . . such changes in policy must be rationally and explicitly justified in order to assure that the standard is being changed and not ignored, and . . . that (the agency) is faithful and not indifferent to the rule of law. Although an agency must be given flexibility to re-examine and reinterpret its previous holdings, it must clearly indicate and explain its action so as to enable completion of the task of judicial review.") (internal quotation omitted). The denial of the SNDA and the Citizen Petition was accomplished by unexplained departures from a number of established policies and practices followed by the FDA.

1.The Unprecedented Intervention of the Secretary Perhaps the most significant departure from agency practice was the intervention of the Secretary of Health and Human Services. She overruled the FDA in an area which Congress entrusted primarily to the FDA, 21 U.S.C. § 393(d)(2), and which fell within the scope of the authority that the Secretary expressly delegated to the Commissioner. See Delegations of Authority to the Commissioner of Food and Drugs, republished in FDA Staff Manual Guide § 1410.10. In doing so, she failed to take cognizance of a host of FDA policies that the agency would be forced to override in order to comply with her directive.

In my 2009 opinion, I traced the evidence demonstrating that the conduct of the FDA was influenced by the Bush White House, acting through the Office of the Commissioner of the FDA, and I held that this kind of political interference called into serious question the legitimacy of the FDA's decision. In the present circumstances, the political interference came directly from the Secretary of Health and Human Services, a member of the President's Cabinet. Of course, the Secretary herself is the best source of information on her state of mind, and she has not seen fit to file an affidavit in this case, even though her motives are in issue. See, e.g., First Am. Supp. Compl. ¶ 38, Case No. 12-cv-763, Doc. No. 14; cf. Campbell v. United States, 365 U.S. 85, 96 (1961) ("[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.")

Nevertheless, we have been cautioned that, as judges, we "cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men [and women]." Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879) (No. 6546); see also Watts v. Indiana, 338 U.S. 49, 52 (1949) (Frankfurter, J.) ("[T]here comes a point where this Court should not be ignorant as judges of what we know as men [and women]."). The motivation for the Secretary's action was obviously political. "It was the first time a cabinet member had ever publicly countermanded a determination by the F.D.A., the agency charged with ensuring the safety of foods and medicines." Gardiner Harris, White House and the FDA Often at Odds, N.Y. Times, Apr. 3, 2012 at A1. And it was an election-year decision that "many public health experts saw as a politically motivated effort to avoid riling religious groups and others opposed to making birth control available to girls." Id. Thus, three distinguished scientists, including the Editor-in-Chief of the New England Journal of Medicine, wrote:

In our opinion, the secretary's decision to retain behind-the-counter status for Plan B One-Step was based on politics rather than science. It cannot be based on issues of safety, since a 12-year-old can purchase a lethal dose of acetaminophen in any pharmacy for about $11, no questions asked. The only documented adverse effects of a $50 dose of levonorgestrel are nausea and delay of menses by several days. Any objective review makes it clear that Plan B is more dangerous to politicians than to adolescent girls.

The Politics of Emergency Contraception, 366 New Eng. J. Med. 101, 102 (Jan 12, 2012).

Nevertheless, even with eyes shut to the motivation for the Secretary's decision, the reasons she provided are so unpersuasive as to call into question her good faith. While the Secretary has strung together three factual statements in her memorandum to Commissioner Hamburg, she has failed to offer a coherent justification for denying the over-the-counter sale of levonorgestrel-based emergency contraceptives to the overwhelming majority of women of all ages who may have need for those drugs and who are capable of understanding their correct use. I proceed to deconstruct her explanation sentence by sentence.

a. The First Sentence

The Secretary says that "[t]he label comprehension and actual use studies submitted to FDA do not include data on all ages for which the drug would be approved and available over-the-counter." Sebelius Mem. This statement ignores the fact that the FDA waived the requirement that included a minimum number of enrollees between the ages of 11 and 13 in the drug sponsor's studies. Defs.' Resp. to Mar. 4, 2013 Order at 2, Case No. 12-cv-763, Doc. No. 79; see also Tina R. Raine et al., An Over-the-Counter Simulation Study of a Single-Tablet Emergency Contraceptive in Young Females, 119 Obstetrics & Gynecology 772, 775 (2012), Case No. 12-cv-762, Doc. No. 26-1. In effect, the Secretary ordered the FDA to deny the application of the Plan B One-Step sponsor because it lacked data that the FDA itself had told the sponsor it did not have to provide. This the Secretary does not deny. The excuse offered by the minyan of attorneys representing her is that the Secretary was "not present" at the meeting where the FDA agreed to waive this data and that she disagreed. Defs.' Resp. to March 4, 2013 Order at 2, Case No. 12-cv-763, Doc. No. 79. They are careful to avoid saying she did not have knowledge of the waiver. Moreover, as discussed below, the Secretary may not issue administrative edicts simply because she disagrees with the decisions of the FDA.

b. The Second Sentence

The Secretary also observed that there are "significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age," which she believes "are relevant to making this determination as to non-prescription availability of this product for all ages." Sebelius Mem. She fails to explain why. The issue of the cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age to which the Secretary alluded was raised in the FDA's review of the first SNDA for Plan B. In response, Dr. John Jenkins, Director of the Office of New Drugs at the FDA, explained that such concerns are beyond the scope of the FDA's review because they are "more applicable to the ability of adolescents to make reasoned decisions about engaging in sexual intercourse, not their ability to understand how to use Plan B safely and effectively as an emergency contraceptive should they engage in unprotected sexual intercourse." Ex. A-4 to Pls.' 2007 Mot. for Summ. J. at T-31097, Case No. 05-cv-366, Doc. No. 235-5. While recognizing that "OTC access to Plan B for adolescents may be controversial from a societal perspective," Dr. Jenkins could not "think of any age group where the benefit of preventing unplanned pregnancies and abortion is more important and more compelling." Id. at T-31098. Indeed, slightly over half of teenage mothers obtain a high school diploma by age 22, compared to 89 percent of women who didn't have a teen birth. The National Campaign to Prevent Teen and Unplanned Pregnancy, Why it Matters:

Teen Childbearing, Education, and Economic Well-being at 1 (July 2012). "Another study found that less than two percent of young teen mothers attain a college degree by age 30 . . . . Between 2009 and 2010, roughly 48 percent of all mothers age 15 to 19 lived below the poverty line . . . . As their children grow older, their likelihood of living in poverty increases." *fn4 Id. at 1-3.

On the other hand, as seems clear from the Secretary's explanation, if the "cognitive differences" to which she referred affected the ability of the youngest adolescents to understand the label and use the drug appropriately, then it would be impossible for any drug to be approved for over-the-counter sales without a prescription. This would thwart the intent of Congress to "relieve retail pharmacists and the public from burdensome and unnecessary restrictions on the dispensing of drugs that are safe for use without the supervision of a physician." S. Rep. No. 82-946 (1951), reprinted in 1951 U.S.C.C.A.N. 2454, 2454.

Specifically, census statistics demonstrate that there are fewer than two million 11-year-old girls in the United States. U.S. Census Bureau, Age and Sex Composition in the United States: 2011, available at As the Secretary noted, "about ten percent of girls reach menarche by 11.1 years of age"; thus, there are fewer than 200,000 11-year-old girls of reproductive age in the country. Moreover, fewer than 3% of girls under the age of 13 are sexually active. Tina R. Raine et al., An Over-the-Counter Simulation Study of a Single-Tablet Emergency Contraceptive in Young Females, 119 Obstetrics & Gynecology 772, 779 (2012), Case No. 12-cv-762, Doc. No. 26-1. Thus, the potential population about whom the Secretary is concerned is infinitesimal, even if all of these young adolescents are unable to read a relatively simple emergency contraception label and use the drug appropriately. By contrast, 12% of the total population of the United States over the age of 16 are deemed to have "below basic" document literacy, a term defined by the National Center for Education Statistics as "the knowledge and skills . . . needed to search, comprehend, and use information from noncontinuous texts in various formats, such as . . . prescription labels." National Center for Education Statistics, Fast Facts: Adult Literacy, available at Obviously, if consumers cannot read and understand a drug label, they are likely to use the drug incorrectly without medical supervision, yet the Secretary has never demanded "data . . . [that] conclusively establish" that 100% of the potential users of a drug can understand the label.*fn5 Nor has she or the FDA precluded the over-the-counter sale of drugs for that reason.

c. The Third Sentence

The Secretary finally observed that, if the SNDA were granted, Plan B One-Step would be available "without a prescription or other point-of-sale restrictions, even to the youngest girls of reproductive age," including the ten percent of girls who "reach menarche by 11.1 years of age." Sebelius Mem. Nevertheless, the Secretary does not define any harm that could result from the use of levonorgestrel-based emergency contraceptives by this population. Again, levonorgestrel-based contraceptives would be probably among the safest drugs approved for over-the-counter sale for the pediatric population. Indeed, the FDA approves drugs for over-the-counter sale which have either not been shown to be safe for use by the pediatric population or have been shown to be unsafe for such use. The policy of the FDA is to rely on labeling. As Dr. Jenkins testified, age-based labeling restrictions have "been [the FDA's] long-standing way of [] instructing consumers whether they should or should not use a product in a young age group, and [the Plan B marketing regime is] a substantial deviation from that practice." Jenkins Dep. at 113:7-16, Case No. 05-cv-366, Doc. No. 235-9. Indeed, as Dr. Andrea Leonard-Segal, Director of the FDA's Division of Nonprescription Clinical Evaluation, wrote, "[r]eliance upon the product label to result in appropriate use is consistent with the tenet that the Agency has applied in the past and continues to apply when determining whether or not a product can be over-the-counter. It is an approach consistent with the regulations." Summary Review for Regulatory Action at 28 (Nov. 30, 2011), Case No. 12-cv-763, Doc. No. 83-1 (hereinafter "Summary Review").

Thus, a diet drug, Alli, "was approved [for over-the-counter sales] for weight loss in 2007 only for adults 18 and older," although it could be purchased by teenagers-a group that may still be "in an active growth phase with continued bone and other organ, maturation and where nutritional requirements are different from those of adults." Defs.' Mem. in Support of Mot. for Summ. J. at 5, Case No. 12-cv-763, Doc. No. 71 (quoting NDA 21-887, Office Director's Decisional Memorandum at 3-4 (Feb. 6, 2007)). The FDA observed that "the balance between active weight loss, while still continuing to have adequate nutritional requirements, would best be achieved [] with active health care provider interaction." Id. Consequently, the FDA decided to make the drug available for over-the-counter sales with a warning that it was not intended for use by the pediatric population. The Secretary's edict to the FDA simply reflects the fact of her lack of familiarity with, or her willingness to ignore, the policy of the FDA in dealing with these concerns.

Moreover, the likelihood of unsafe use or misuse with respect to levonorgestrel-based emergency contraceptives is extremely low, and much lower than the dangers of misuse of common over-the-counter medications that are known to be abused by minors and adults, even though these drugs cause hundreds of deaths every year in the United States. In an internal FDA memorandum regarding the first Plan B SNDA in 2004, Dr. Curtis Rosebraugh, FDA Deputy Director of the Division of OTC Drugs, explained the significant inconsistency between the agency's proposed treatment of Plan B and its treatment of other over-the-counter drugs: "A decision by the Agency to withhold OTC marketing of Plan B for reasons of theoretical abuse by a very small segment of the population despite the great benefit that could be derived from easier access could have ramifications for how we regulate other OTC drugs . . . a natural progression of this line of regulatory reasoning would require that the Agency remove OTC marketing status for many drugs with known abuses including dextromethorphan because of reports of adolescent abuse, laxatives because of abuse by people suffering from bulimia, analgesics because of abuse with subsequent health ramifications, or acetaminophen because of its use in suicides." Ex. A to Pls.' 2007 Mot. for Summ. J. at T-30757-58, Case No. 05-cv-366, Doc No. 235-3 (emphasis added). Dextromethorphan, to which Dr. Rosebraugh referred, is a cough suppressant contained in cold medicines that are widely abused by teenagers and sold over-the-counter. An overdose of dextromethorphan can cause "inebriation . . . [a]n altered state of consciousness [and] [m]ind and body dissociation or an 'out-of-body' experience," as well as "blurred vision, body itching, rash, sweating, fever, hypertension, shallow respiration, diarrhea, toxic psychosis, [and] coma." National Drug Intelligence Center, Intelligence Bulletin: DXM (Dextromethorphan), October 2004, available at Dextromethorphan abusers "can obtain the drug at almost any pharmacy or supermarket" for only a few dollars. Id.

2.The Failure to Make Plan B Available to Older Adolescents The Secretary did not question the adequacy of the evidence regarding the ability of older adolescents, between the ages of 13 and 16, to understand Plan B One-Step's label and use the drug correctly. Indeed, despite the ample evidence that this age group was able to do so, the Secretary never explained why Plan B One-Step should not be made available to them, nor was the Assistant U.S. Attorney representing the FDA willing to answer the specific question that I posed to him at an early stage in this proceeding of "whether the actual use and labeling comprehension studies conducted by Teva with respect to Plan B One-Step are inadequate with respect to all women under the age of 17 or whether they are inadequate only with respect to those under the age of twelve." Dec. 13, 2011 Order, Case No. 05-cv-366. "[T]he Commissioner of the FDA isn't in a position to be able to answer the question," he said, because the decision to deny the SNDA was made by Secretary Sebelius, not the Commissioner. Dec. 13, 2011 Hr'g Tr. at 5:1-8, Case No. 05-cv-366, Doc. No. 342. The Secretary's lawyers have now come up with the excuse that the Plan B One-Step SNDA "did not seek OTC availability for a specific subset of younger women." Defs.' Resp. to Mar. 4, 2013 Order at 3, Case No. 12-cv-763, Doc. No. 79. Instead, it sought to eliminate all point-of-sale and age restrictions.

The Food, Drug, and Cosmetic Act ("FDCA") does not preclude the Secretary or the Commissioner from granting relief less extensive than that sought by an applicant. Nor does it preclude the Commissioner of the FDA, who clearly had the authority, from doing so. Indeed,

21 C.F.R. § 310.200(b) expressly provides that the Commissioner may initiate, sua sponte, a proposal to exempt a drug from prescription-dispensing requirements "when the Commissioner finds such requirements are not necessary for the protection of the public health." Thus, when it became clear in the earlier Plan B process that the FDA would not allow over-the-counter sales without age restriction, the FDA invited the Plan B sponsor to submit a revised SNDA seeking over-the-counter access only for women over 18. Ex. 2 to Defs.' 2007 Mot. to Dismiss at T-11094-95, Case No. 05-cv-366, Doc. No. 248-4. Moreover, in response to my 2009 order in which the FDA acquiesced, it similarly invited the Plan B sponsor to submit a new application revising the age limit downwards to 17, although such relief had not been requested in the Citizen Petition or by the Plan B sponsor. Thus, it is clear that the FDA's options in responding to over-the-counter switch applications are not as limited as they represent.

The Secretary's failure to limit the scope of her decision to girls under the age of 13 suffers from the same defect as the FDA's original order approving over-the-counter access to Plan B for women over the age of 18, notwithstanding the fact that the same evidence that supported over-the-counter access for 18-year-olds applied equally to 17-year-olds. Nevertheless, I make this point only to highlight the arbitrariness of the Secretary's action and not to suggest that a comparable remedy, which would lower the age of availability to adolescents 14 and over, is a viable or appropriate one. The obstructions in the path of those adolescents in obtaining levonorgestrel-based emergency contraceptives under the current behind-the-counter regime have the practical effect of making the contraceptives unavailable without a doctor's prescription. The basic fact is that most younger adolescents, including "many poor or disadvantaged women," "will be denied access because they do not have a driver's license, passport, or other form of identification with which to verify their age." The Politics of Emergency Contraception, 366 New Eng. J. Med. 101-02 (Jan. 12, 2012).


Extrapolation is the use of studies in one age group to support approval of a drug in another age group. The FDA's failure to extrapolate involves the next and perhaps the most significant unexplained deviation from FDA practice ordered by the Secretary. Adopting the strategy that the best defense is a good offense, the defendants have cross-moved for summary judgment focusing on this issue. The problem is that their offense is not very good. The defendants have not submitted any affidavits or other competent evidence regarding the policy of the FDA in support of their motion for summary judgment. Instead, they rely solely on a 2011 article in which they claim "FDA scientists reviewed the use of extrapolation in 166 drug products submitted for pediatric approval between 1998 and 2008. The authors concluded that FDA did not extrapolate efficacy data for 29 products (17.5%), partially extrapolated for 113 products (68%), and fully extrapolated for 24 products (14.5%)." Defs.' Mot. for Summ. J. at 3, Case No.12-cv-763, Doc. No. 71; Julia Dunne et al., Extrapolation of Adult Data and Other Data in Pediatric Drug-Development Programs, 128 Pediatrics e1242, e1245 tbl. 1 (Nov. 1, 2011).

The foregoing study addressed only the issue of extrapolation as it related to the efficacy of a particular drug. "Efficacy" within the meaning of the FDCA is established when an applicant proves that a particular drug "will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested." 21 U.S.C. ยง 355(d). There is no dispute in this case related to the efficacy or safety of levonorgestrel-based emergency contraceptives. See Apr. 27, 2012 Hr'g Tr. at 84:24-85:2, Case No. 12-cv-763, Doc. No. 84. Indeed, the FDA observed in its Citizen Petition Denial Letter that Plan B "is already approved as a prescription product, and thus the safety and efficacy in the pediatric population have been established." Letter from Janet Woodcock, Center for Drug Evaluation and Research, FDA, to Bonnie Scott Jones, Center for Reproductive Rights at 9 (Dec. 12, 2011), Case No. 05-cv-366, Doc. No. 341-1 (hereinafter "Citizen Petition Denial Letter"). Moreover, as the authors of the extrapolation study explained, "[e]xtrapolation of efficacy from adult ...

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