How Courts Reviewed FDA Action Before Chevron and May Again After Loper Bright

DANIEL E. ORR, JONATHAN TRINH & EVA F. YIN

ABSTRACT

The U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chevron had required federal courts to defer to agencies’ reasonable interpretations of the statutes they administered for over 40 years. This Article examines the potential impact of Loper Bright on the U.S. Food and Drug Administration (FDA) and how courts reviewed the agency’s actions before and after Chevron. It finds that FDA’s “win-rate” was unchanged but that courts came to rely heavily on Chevron as a key basis for their decisions. We identify some possible explanations for these findings and predictions for what litigation against FDA will look like in the future.