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Hi-Tech Pharmaceuticals, Inc., et al. v. Food and Drug Administration, et al.

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 17-13376 · judgment August 30, 2019


Certiorari denied · October 19, 2020
Pre-decision estimate: 5% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for an Eleventh Circuit decision below, a petition citing three to ten dissents, and a business petitioner.

Question presented

To increase the dietary supplements available to the public, the Dietary Supplement Health and Education Act of 1994 (“DSHEA”), 21 U.S.C. §321(ff), amended the Federal Food, Drug, and Cosmetic Act. DSHEA’s amendments allow manufacturers to sell supplements, without first obtaining FDA approval, if their ingredients are, among other things, “constituent[s]” of “herb[s] or other botanical[s].” 21 U.S.C. §321(ff)(1)(C) & (F). The dietary supplements at issue in this case contain an ingredient known as DMAA, which studies have shown occurs in geranium plants. The courts below held that, even if these studies are accurate, DMAA is not, as a matter of law, a “constituent” of a “botanical”—and thus is not presumptively marketable as an ingredient in dietary supplements under DSHEA—because these studies show that DMAA appears in geraniums only in trace quantities, and DMAA has no prior history of being directly extracted from the plant for medicinal, cosmetic, or dietary use. The question presented is as follows: Did the Eleventh Circuit err in holding that a substance that naturally occurs in a plant is not a “constituent” of an “herb or other botanical”— and therefore cannot be included in presumptively marketable dietary supplements under the Dietary Supplement Health and Education Act—if the substance naturally occurs in the plant only in trace quantities and has no prior history of being extracted from the plant for medicinal, cosmetic, or dietary use?

Counsel of record

For petitioner
John Cowles Neiman Jr.
Maynard Nexsen PC

For respondent
Jeffrey B. Wall
Sullivan & Cromwell LLP

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Order
Order list, October 19, 2020 · Certiorari denied

Proceedings

  1. Oct 19 2020
    Petition DENIED.
  2. Sep 30 2020
    DISTRIBUTED for Conference of 10/16/2020.
  3. Sep 25 2020
    Waiver of right of respondents Food and Drug Administration, et al. to respond filed.
  4. Sep 01 2020
    Petition for a writ of certiorari filed. (Response due October 8, 2020)