[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Proposed Rules]
[Pages 86290-86305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25120]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 175, 176, 177, and 178
[Docket No. FDA-2016-F-1253]
Environmental Defense Fund, et al.; Response to Objections and
Requests for a Public Hearing
AGENCY: Food and Drug Administration, HHS.
ACTION: Notification; response to objections and denial of public
hearing requests.
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SUMMARY: The Food and Drug Administration (FDA or we) received
objections and requests for a public hearing submitted by the
Environmental Defense Fund, Learning Disabilities Association of
America, Center for Food Safety, Center for Environmental Health,
Center for Science in the Public Interest, Breast Cancer Prevention
Partners, Defend our Health, and Alaska Community Action on Toxics on
the denial of a food additive petition (FAP
[[Page 86291]]
6B4815) requesting that we revoke specified regulations to no longer
provide for the food contact use of 28 ortho-phthalates. We are
overruling the objections and denying the requests for a public
hearing.
DATES: October 30, 2024.
FOR FURTHER INFORMATION CONTACT: Jessica Urbelis, Office of Food
Chemical Safety, Dietary Supplements, and Innovation, Human Foods
Program, Food and Drug Administration, 5001 Campus Dr., College Park,
MD 20740, 240-402-5187; or Carrol Bascus, Office of Policy, Regulations
and Information, Human Foods Program, Food and Drug Administration,
5001 Campus Dr., College Park, MD 20740, 240-402-2378.
SUPPLEMENTARY INFORMATION:
I. Background
In the Federal Register of May 20, 2016 (81 FR 31877), we announced
the filing of a food additive petition (FAP 6B4815) (petition)
submitted by the Breast Cancer Fund (now Breast Cancer Prevention
Partners), Center for Environmental Health, Center for Food Safety,
Center for Science in the Public Interest, Clean Water Action, Consumer
Federation of America, Earthjustice, Environmental Defense Fund,
Improving Kids' Environment, Learning Disabilities Association of
America, and Natural Resources Defense Council (hereinafter,
petitioners).
The petition, received March 18, 2016, initially requested that we
amend or revoke specified food additive regulations under parts 175,
176, 177, and 178 (21 CFR parts 175, 176, 177, and 178) to no longer
provide for the food contact uses of 30 substances that the petition
identified as ortho-phthalates. Additionally, petitioners requested
that we amend regulations in part 181 (21 CFR part 181) related to
prior-sanctioned uses of five ortho-phthalates and issue a new
regulation in part 189 (21 CFR part 189) prohibiting the use of eight
specific ortho-phthalates in food contact articles. We declined to file
these portions of the submissions as a food additive petition because
those requests were not within the scope of a food additive petition
(81 FR 31877 at 31878).
Following our May 20, 2016, announcement that we had filed the food
additive petition, the petitioners provided supplementary information
on October 8, 2016, and August 24, 2017 (see FAP 6B4815 regarding
ortho-phthalates/Responses to September 1, 2016, request from Tom
Neltner, Breast Cancer Fund, et al., dated October 8, 2016, and August
24, 2017) (Supp., October 8, 2016, and Supp., August 24, 2017,
respectively). In the October 8, 2016, supplement, the petitioners also
requested that FDA remove two substances from the petitioner's original
list of 30 substances, stating that they are not ortho-phthalates
(Supp., October 8, 2016 at 2). Consequently, the subject of the food
additive petition was limited to food additive regulations for 28
ortho-phthalates. In addition, regarding the certain portions of the
submissions that we declined to file as a food additive petition
because those requests were not within the scope of a food additive
petition, on April 19, 2016, the petitioners submitted a citizen
petition containing those requests (see Citizen Petition from Nancy
Buermeyer, Breast Cancer Fund, et al., submitted to the Dockets
Management Staff, Food and Drug Administration, dated April 19, 2016
(Comment ID FDA-2016-P-1171-0001) (citizen petition). Specifically, the
citizen petition requested that we initiate rulemaking to remove the
prior sanctions in part 181 for five ortho-phthalates and that we add a
new section to part 189 prohibiting the use of eight ortho-phthalates
(citizen petition at 1 through 2). On May 12, 2022, we denied the
citizen petition.
The core premise of FAP 6B4815 was that the 28 subject ortho-
phthalates are chemically and pharmacologically related and should
therefore be treated as a class for purposes of evaluating their
safety. The petitioners argued that a single purported acceptable daily
intake (ADI) for one substance should be applied to the purported class
of 28 ortho-phthalates and that the cumulative exposure to all 28
ortho-phthalates significantly exceeded the purported ADI for the one
substance petitioners selected, thereby rendering the entire purported
class unsafe for use as food additives.
In the Federal Register of May 20, 2022 (87 FR 31066), we announced
that we were denying FAP 6B4815. In that Federal Register document
(hereinafter, denial order), we explained that the petition did not
provide sufficient information to support a finding that there is no
longer a reasonable certainty of no harm for the authorized uses of the
proposed class of 28 ortho-phthalates. As an additional matter, based
on the information available to FDA, the denial order stated that we
did not have a basis to conclude that dietary exposure levels from the
authorized ortho-phthalates exceed a safe level (87 FR 31066 at 31075).
The denial order advised that objections and requests for a hearing
were due by June 21, 2022 (87 FR 31066). Subsequently, we received one
submission from a group of eight objectors that raised several
objections and requests for hearing in response to the denial order.
Following receipt of FAP 6B4815 in March 2016, on June 25, 2018, we
received a food additive petition (FAP 8B4820) submitted by the
Flexible Vinyl Alliance (hereinafter, the abandonment petition). The
abandonment petition proposed that we amend our food additive
regulations in parts 175, 176, 177, and 178 to revoke the approvals of
25 plasticizer substances that the petition identified as ortho-
phthalates for various food contact applications because such uses were
permanently abandoned. In response to the abandonment petition, we
issued a final rule on May 20, 2022 (87 FR 31080) amending the food
additive regulations in parts 175, 176, 177, and 178 to revoke the
authorization of the 25 substances that were the subject of the
petition for various food contact applications (the abandonment final
order). FDA issued the abandonment final order concurrently with its
denial order for FAP 6B4815. On May 20, 2022, we also issued a request
for information (RFI) seeking scientific data and information on
current uses, use levels, dietary exposure, and safety data for ortho-
phthalates that remain authorized for use in food contact applications
(87 FR 31090). The objections and requests for hearing we received
refer to the denial order, citizen petition, abandonment final order,
and RFI.
Ortho-phthalates also are included on FDA's list of chemicals in
the food supply that are under review (see https://www.fda.gov/food/food-chemical-safety/list-select-chemicals-food-supply-under-fda-review). We are committed to continuing the evaluation of all relevant
scientific information and data to determine whether additional
regulatory action regarding ortho-phthalates is warranted to ensure the
safety of all authorized food contact uses of ortho-phthalates.
II. Objections and Requests for Hearing
Section 409(f)(1) of the Federal Food, Drug, and Cosmetic Act (FD&C
Act) (21 U.S.C. 348(f)(1)) provides that, within 30 days after
publication of an order denying a food additive petition, any person
adversely affected by such order may file objections, specifying with
particularity the provisions of the order deemed objectionable, stating
reasonable grounds therefor, and requesting a public hearing upon such
objections.
Under our regulations at 21 CFR 171.110, objections and requests
for a hearing relating to food additive regulations are governed by
part 12 (21 CFR part 12). Under Sec. 12.22(a), each
[[Page 86292]]
objection must: (1) be submitted on or before the 30th day after the
date of publication of the final rule; (2) be separately numbered; (3)
specify with particularity the provision of the regulation or proposed
order objected to; (4) specifically state each objection on which a
hearing is requested (failure to request a hearing on an objection
constitutes a waiver of the right to a hearing on that objection); and
(5) include a detailed description and analysis of the factual
information to be presented in support of the objection if a hearing is
requested (failure to include a description and analysis for an
objection constitutes a waiver of the right to a hearing on that
objection).
We received one submission, on June 21, 2022, from the
Environmental Defense Fund, Learning Disabilities Association of
America, Center for Food Safety, Center for Environmental Health,
Center for Science in the Public Interest, Breast Cancer Prevention
Partners, Defend Our Health, and Alaska Community Action on Toxics
(hereinafter, objectors) (see Objections and Request for Evidentiary
Public Hearing Regarding FDA's Denial of Phthalates Food Additive
Petition (FAP 6B4815)), submitted by Katherine K. O' Brien,
Earthjustice, dated June 21, 2022, to the Dockets Management Staff,
Food and Drug Administration (Comment ID FDA-2016-F-1253-0462)
(Objections). The submission raises eight specific objections to the
denial and requests hearings on six objections.
III. Standards for Granting a Hearing
The criteria for granting a hearing are set out in Sec. 12.24(b).
Under that regulation, a hearing will be granted if the material
submitted by an objector shows that: (1) there is a genuine and
substantial factual issue for resolution at a hearing (a hearing will
not be granted on issues of policy or law); (2) the factual issue can
be resolved by available and specifically identified reliable evidence
(a hearing will not be granted on the basis of mere allegations or
denials or general descriptions of positions and contentions); (3) the
data and information submitted, if established at a hearing, would be
adequate to justify resolution of the factual issue in the way sought
by the objector (a hearing will be denied if the data and information
submitted are insufficient to justify the factual determination urged,
even if accurate); (4) resolution of the factual issue in the way
sought by the objector is adequate to justify the action requested (a
hearing will not be granted on factual issues that are not
determinative with respect to the action requested, e.g., if the action
would be the same even if the factual issue were resolved in the way
sought); (5) the action requested is not inconsistent with any
provision in the FD&C Act or any FDA regulation particularizing
statutory standards (the proper procedure in those circumstances is for
the person requesting the hearing to petition for an amendment or
waiver of the regulation involved); and (6) the requirements in other
applicable regulations, e.g., 21 CFR 10.20, 12.21, 12.22, 314.200,
514.200, and 601.7(a), and in the document issuing the final regulation
or the notice of opportunity for a hearing are met.
In general, in an administrative proceeding under section 409(f) of
the FD&C Act, FDA is authorized to issue a decision without holding a
part 12 hearing when a party's objections do not raise a genuine and
material issue of fact that, if proved in that party's favor, would
suffice to warrant the relief requested (see Community Nutrition Inst.
v. Young, 773 F.2d 1356, 1364 (D.C. Cir. 1985), cert. denied, 475 U.S.
1123 (1986); see also Vermont Dep't of Pub. Serv. v. FERC, 817 F.2d
127, 140 (D.C. Cir. 1987)). A party seeking a hearing must meet a
``threshold burden of tendering evidence suggesting the need for a
hearing'' (Costle v. Pacific Legal Foundation, 445 U.S. 198, 214-215
(1980), citing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S.
609, 620-621 (1973)). An allegation that a hearing is necessary to
``sharpen the issues'' or to ``fully develop the facts'' does not meet
this test (Georgia Pacific Corp. v. EPA, 671 F.2d 1235, 1241 (9th Cir.
1982)). If a hearing request fails to identify sufficient factual
evidence that would be the subject of a hearing, there is no reason to
hold one. In judicial proceedings, a court is authorized to issue
summary judgment without an evidentiary hearing whenever it finds that
there are no genuine issues of material fact in dispute, and a party is
entitled to judgement as a matter of law (see Rule 56, Federal Rules of
Civil Procedure). The same principle applies to administrative
proceedings (Sec. 12.24). In reviewing whether an objecting party made
``an adequate proffer of evidence'' to show that an ``actual dispute
exist[s],'' courts consider whether the dispute lies in ``a highly
technical area [within] the agency's expertise'' (see Cerro Wire &
Cable Co. v. FERC, 677 F.2d 124, 129 (D.C. Cir. 1982)).
A hearing request must not only contain evidence, but that evidence
also must raise a material issue of fact ``concerning which a
meaningful hearing might be held'' (Pineapple Growers Ass'n of Haw. v.
FDA, 673 F.2d 1083, 1085 (9th Cir. 1982)). Where the issues raised in
the objection are, even if true, legally insufficient to alter the
decision, an agency need not grant a hearing (see Dyestuffs and
Chemicals, Inc. v. Flemming, 271 F.2d 281, 286 (8th Cir. 1959), cert.
denied, 362 U.S. 911 (1960)). A hearing is justified only if the
objections are made in good faith and if they raise `` `material'
issues of fact'' (Pineapple Growers Ass'n, 673 F.2d at 1085 (quoting
Pactra Indus., Inc. v. CPSC, 555 F.2d 677, 684 (9th Cir. 1977)). The
issues raised in objections ``must be material to the question
involved; that is, the legality of the order attached'' (Pineapple
Growers Ass'n, 673 F.2d at 1085 (quoting Dyestuffs and Chemicals, 271
F.2d at 286)). A hearing need not be held to resolve questions of law
and policy (see Kourouma v. FERC, 723 F.3d 274, 278 (D.C. Cir. 2013)
(citing Citizens for Allegan County, Inc. v. FPC, 414 F.2d 1125, 1128
(D.C. Cir. 1969)); Sun Oil Co. v. FPC, 256 F.2d 233, 240 (5th Cir.
1958)).
IV. Analysis of Objections and Response to Hearing Requests
The submission from the Environmental Defense Fund et al., contains
eight numbered objections, some with multiple parts, and six requests
for a hearing. We address each objection below, as well as any evidence
and/or information filed in support of each. For each objection that
requests a hearing, we evaluate whether the objection and any evidence
and/or information submitted in support of it satisfies the standards
for granting a hearing in Sec. 12.24(b).
A. Objection 1
In Objection 1, the objectors argue that ``FDA unlawfully placed on
the petitioners the burden of proving that the approved food-additive
uses of phthalates are not safe'' (Objections at 8). The objectors
assert that ``this legal error infected FDA's entire analysis and
requires FDA to withdraw'' its order denying FAP 6B4815 (Objections at
13). Because this objection raises a purely legal dispute, no hearing
is warranted to adjudicate it (Sec. 12.24(b)(1)). Even if a hearing
were available, the objectors did not request one with respect to this
objection and, therefore, waive any right to a hearing (Sec.
12.22(a)(4)). The only remaining issue on this objection, then, is
whether it establishes that FDA's order denying FAP 6B4815 should be
modified or revoked. As described below, we conclude that the objectors
have not established a basis for modifying or revoking the denial
order.
[[Page 86293]]
In Objection 1, the objectors assert that FDA reviewed FAP 6B4815
under an incorrect legal standard. The objectors argue that FDA must
not expect revocation petitions to demonstrate the lack of safety of
the food additives whose approvals the petitions seek to revoke. The
objectors state that ``parties petitioning FDA to revoke approval of a
food additive on safety grounds do not bear the burden of proving that
the additive is unsafe, i.e., that it will cause harm to human health
under the intended conditions of use'' (Objections at 9). Placing such
a burden on the party seeking revocation would, the objectors assert,
``be inconsistent with the Food Act's central premise for food-additive
regulation, namely, that food additives are presumptively unsafe and
may not be used unless the available evidence establishes with
`reasonable certainty' that their use `will be safe' '' (id. (quoting
section 409(c)(3)(A) of the FD&C Act)). (The reference to the ``Food
Act'' is a reference to the FD&C Act.)
The objectors also assert that FDA's basis for denying FAP 6B4815
is inconsistent with our regulations. The objectors point to Sec.
171.130 (21 CFR 171.130), which provides that petitions seeking
amendments or repeals of existing food additive approvals must
``include an assertion of facts, supported by data, showing that new
information exists with respect to the food additive or that new uses
have been developed or old uses abandoned, that new data are available
as to toxicity of the chemical, or that experience with the existing
regulation may justify its amendment or repeal'' (Objections at 10).
The objectors interpret this regulation to mean that repeal petitions
are required only to ``[tender] new information regarding a food
additive's toxicity or otherwise demonstrating that amendment or repeal
of the additive's authorization may be justified'' but do not bear
``the burden of persuasion on the ultimate question of an additive's
safety'' (id.). Therefore, the objectors contend, ``the burden of
persuasion on the ultimate question of safety lies with the party
advocating for continued authorization of the product'' (id. at 11).
The objectors state that FDA applied an incorrect standard to
evaluating FAP 6B4815 because ``FDA did not assess in the Order whether
the petitioners provided `new information' regarding the `toxicity of
the chemical[s]' at issue, as its regulations require, nor whether that
information `establish[es] the existence of safety questions
significant enough to support a finding that there is no longer a
reasonable certainty of no harm from the currently approved uses' ''
(id. at 12 (quoting Sec. 171.130(b) and the denial order at 87 FR
31066 at 31067)).
The objectors state that their position is consistent with League
of United Latin Am. Citizens v. Regan, 996 F.3d 673 (9th Cir. 2021), a
case involving the U.S. Environmental Protection Agency's (EPA's)
regulation of pesticides (Objections at 10-11). The objectors further
state their position is consistent with FDA's statement in a final rule
concerning the food additive olestra (61 FR 3118, January 30, 1996) as
well as the standard FDA applied in revoking food-additive
authorizations for certain long-chain perfluorinated compounds (81 FR
5, January 4, 2016) (Objections at 12).
The crux of these arguments is that ``FDA unlawfully placed the
burden of proof regarding the safety of the phthalate additives on the
petitioners, asserting that FDA need only revoke a food additive
authorization if presented with new evidence that `approved additives
are in fact unsafe' '' (Objections at 12 (emphasis in original)).
Finally, the objectors criticize FDA's approach in denying FAP
6B4815 on the same day that we amended our regulations to no longer
provide for most phthalates to be used in food contact applications
because these uses were abandoned by industry (Objections at 12). The
objectors state that the abandonment action ``significantly altered the
scope of food-additive authorizations for phthalates that remain in
effect, and for which a safety evaluation is still required'' (id.).
The objectors state that our action ``reflects FDA's erroneous position
that it may leave the extant food-additive authorizations in effect
unless and until petitioners prove that they are in fact unsafe'' (id.
at 12-13).
FDA Response: We disagree with the assertion that FDA applied an
incorrect legal standard in evaluating FAP 6B4815. It is fundamental
that a food additive petition--whether requesting an authorization,
modification, or repeal--must provide sufficient support for its
request.
We denied FAP 6B4815 because it failed to provide sufficient
support for its request to revoke the authorization for the 28 ortho-
phthalates that were the subject of the petition. In reviewing FAP
6B4815, we observed that the petition was premised on three distinct
assertions (which, for ease of reference, we referred to as Assertions
A, B, and C). Assertion A claimed that the 28 subject ortho-phthalates
are chemically and pharmacologically related and should therefore be
treated as a class for purposes of evaluating their safety. Under
Assertion B, the petition proposed applying a purported ADI for di(2-
ethylhexyl) phthalate (DEHP) to all 28 ortho-phthalates (i.e., the
petition proposed applying the proposed ADI to the entire purported
class). Assertion C stated that the estimated daily intake (EDI) for
the asserted class of 28 ortho-phthalates significantly exceeded the
proposed ADI, thus rendering the purported class unsafe for their
authorized uses as food contact substances. Our denial order explained
in detail why the petition did not adequately support any of these
three assertions. Consequently, we concluded that the petition did not
contain sufficient data to support a finding that there is no longer a
reasonable certainty of no harm from the approved uses (87 FR 31066 at
31075). As an additional matter, we noted that, based on the
information available to FDA, we did not have a basis to conclude that
dietary exposure levels from authorized ortho-phthalates exceeded a
safe level (id.). We stated that, as new information becomes available
to us, we will continue to examine such data as appropriate to assess
whether there remains a reasonable certainty of no harm (id.).
Objection 1 rests on a flawed interpretation of the FD&C Act's
legal framework governing food additives--in particular, its provisions
concerning the premarket review of food additives. Under this
framework, food additives are deemed unsafe and prohibited except to
the extent FDA authorizes their use (see, e.g., sections 301(a),
301(k), and 409(a) of the FD&C Act (21 U.S.C. 331(a), 331(k), and
348(a))). Section 409 of the FD&C Act sets forth a process under which
a person can submit a petition requesting that FDA issue a regulation
prescribing the conditions under which a food additive may be safely
used (see section 409(b)(1) of the FD&C Act). The statute specifies
that a person must support such a petition by supplying the data
specified in section 409(b)(2) of the FD&C Act. After a person submits
a petition seeking approval of a food additive's use, FDA may issue a
regulation authorizing the use only if the data before us establish
that the proposed use of the food additive will be safe (see section
409(c)(3)(A) of the FD&C Act).
In addition to establishing the procedure for issuing regulations
authorizing food additives, Congress directed FDA to establish a
regulatory procedure prescribing how regulations authorizing food
additives may be amended or repealed (see section 409(i) of the FD&C
Act). Importantly, the
[[Page 86294]]
statute specifies that this regulatory ``procedure shall conform to the
procedure provided in this section for the promulgation of such
regulations'' (id.) (emphasis added) (section 409(i) of the FD&C Act).
FDA's regulation at Sec. 171.130 establishes the procedure by which
interested persons may petition FDA for amending or repealing a food
additive authorization.
FDA's approach to evaluating FAP 6B4815 was fully consistent with
the legal framework described above. The provisions of section 409 of
the FD&C Act make clear that the evidentiary burden to support
authorization of a food additive's use lies with the petitioner seeking
such authorization (see section 409(b) and (c) of the FD&C Act). Given
the FD&C Act's directive that the regulatory procedure for amending or
repealing an authorization ``shall conform'' to the statutory procedure
for granting an authorization, it follows that a person seeking
amendment or repeal likewise must provide a well-supported petition
adequately justifying such action. See section 409(i) of the FD&C Act;
In re Nat. Res. Def. Council, 645 F.3d 400, 403 (D.C. Cir. 2011)
(``When a food additive petition seeks to amend an existing regulation,
the petitioner must include full information on each proposed change'')
(internal quotations and citations omitted). FDA's denial order
thoroughly explained why the petition did not provide adequate evidence
to support its requested postmarket remedy: the repeal of already-
authorized food additive uses. This conclusion did not conflict in any
way with the premarket review framework invoked by the objectors.
Moreover, to the extent the objectors contend that FDA disregarded
any general statutory obligation to remove unsafe products from the
market, we note that we have made no finding that the subject food
additives are unsafe. Indeed, our denial order stated that we did not
have a basis to conclude that dietary exposure levels from authorized
ortho-phthalates exceeded a safe level (87 FR 31066 at 31075).
The objectors' argument that FDA disregarded its own regulations is
also in error. This argument relies on a portion of Sec. 171.130(b)
providing that petitions for amendment or repeal must include an
assertion of facts, supported by data, showing that new information
exists. Citing this excerpt, the objectors maintain that this
regulation ``establishes that petitioners seeking revocation of a food-
additive regulation bear a burden of production--specifically, the
burden of tendering new information regarding a food additive's
toxicity or otherwise demonstrating that amendment or repeal of the
additive's authorization may be justified'' (Objections at 10). To the
extent that the objectors assert that a repeal petition need only point
to the existence of new toxicity data, this argument disregards the
concluding sentence of Sec. 171.130(b).
The concluding sentence provides that new data must be furnished in
the form specified in Sec. 171.1 (21 CFR 171.1) for submitting
petitions. Under Sec. 171.1(c), a petition must include ``full reports
of investigations made with respect to the safety of the food
additive.'' In addition, Sec. 171.1(c) provides that a petition ``may
be regarded as incomplete unless it includes full reports of adequate
tests reasonably applicable to show whether or not the food additive
will be safe for its intended use.'' Further, under Sec. 171.1(c), for
petitions seeking modification of existing regulations issued pursuant
to section 409(c)(1)(A) of the FD&C Act (i.e., a regulation authorizing
the use of a food additive under specified conditions), ``full
information on each proposed change that is to be made in the original
regulation must be submitted.'' Accordingly, petitions seeking
revocation of a food additive regulation must do more than merely
identify the existence of new toxicity studies. See also In re NRDC,
645 F.3d at 403 (considering petition to repeal existing food additive
authorization and citing Sec. 171.1 to conclude that food additive
petitions seeking to amend existing food additive authorizations must
include full information on each proposed change). Thus, FDA's
regulations make clear that repeal petitions such as FAP 6B4815 must
include adequate supporting information. We therefore acted
consistently with our regulations when we evaluated FAP 6B4815 to
determine whether its assertions were supported and whether the
petition contained sufficient data to support a finding that there is
no longer a reasonable certainty of no harm from the currently approved
uses.
Next, the objectors maintain that FDA's approach in evaluating FAP
6B4815 was inconsistent with the following: (1) the League of United
Latin Am. Citizens v. Regan, 996 F.3d 673 (9th Cir. 2021), a case
involving EPA's regulation of pesticides; (2) an FDA statement in a
food additive proceeding involving olestra; and (3) FDA's action on
three specific perfluoroalkyl ethyl-containing food-contact substances.
We address each of these in turn.
First: The League of United Latin Am. Citizens (LULAC) case cited
by the objectors is not germane because its holding was based on a
distinct statutory scheme applicable to pesticides under section 408 of
the FD&C Act (21 U.S.C. 346a) and factual circumstances different from
the facts underlying this proceeding. In that case, EPA had received a
petition asking the agency to prohibit foods that contained any residue
of the insecticide, chlorpyrifos (996 F.3d at 673). EPA argued that the
agency could leave in effect tolerances for the pesticide while the
agency continued to evaluate the science (id. at 688). The LULAC court
held that EPA has a continuing obligation under section 408 of the FD&C
Act to ensure the safety of established pesticide tolerances that were
previously found to be safe (id. at 691) (finding that EPA ``has its
own continuing duty under [section 408 of the FD&C Act] to determine
whether a tolerance that was once thought to be safe still is''). The
court's conclusion regarding EPA's continuing obligation was based on
statutory language in section 408 of the FD&C Act that is materially
different from the language in section 409 of the FD&C Act at issue in
this proceeding.
Under section 408(b)(2)(A)(i) of the FD&C Act, EPA ``may establish
or leave in effect a tolerance for a pesticide chemical residue in or
on a food only if the Administrator determines that the tolerance is
safe'' (emphasis added). In contrast, section 409 of the FD&C Act does
not contain anything comparable to the ``leave in effect a tolerance .
. . only if the Administrator determines that the [substance] is safe''
language in section 408, which was the linchpin for the LULAC court's
conclusion that EPA had ``a continuous duty'' to determine whether a
tolerance for a pesticide chemical reside is safe (id. at 692
(``[Section 408 of the FD&C Act] imposes a continuous duty upon the EPA
by permitting it to `leave in effect' a tolerance `only' if it finds it
is safe. To `leave' something in effect means `to cause or allow [it]
to be or remain in a specified condition. Denying the 2007 Petition
caused the chlorpyrifos tolerances to remain in place . . . . But in so
doing, the EPA did not `[determine] that the tolerance is safe.' ''))
(Compare Sec. 409 of the FD&C Act).
Further, unlike section 408 of the FD&C Act, section 409 of the
FD&C Act directs FDA to establish procedures for repealing food
additive authorizations that ``shall conform'' to the statutory
procedure for promulgating authorizations, under which the evidentiary
burden to support authorization of a food additive's use
[[Page 86295]]
lies with the petitioner seeking such authorization (see section 409(c)
and (i) of the FD&C Act). Given the statutory framework established in
section 409 of the FD&C Act and the ways in which it differs from the
framework established in section 408 of the FD&C Act, it was entirely
reasonable that FDA assessed the information in the objectors' repeal
petition to determine whether there was sufficient data to establish
the existence of safety questions significant enough to support a
finding that there is no longer a reasonable certainty of no harm from
the approved ortho-phthalates' uses. Furthermore, the factual
circumstances are distinct. In LULAC, the record showed that EPA
``repeatedly determined'' that the pesticide at issue was unsafe under
the approved tolerance levels. Here, however, FDA has never determined
the ortho-phthalates at issue in this proceeding to be unsafe. Instead,
our denial order explained that FDA did not have a basis to conclude
that dietary exposure levels from approved ortho-phthalates exceed a
safe level (87 FR 31066 at 31075).
Second: The objectors cite as support for their argument the
following statement in the Federal Register document announcing FDA's
decision to approve olestra: ``It is important to recognize that to
institute a proceeding to limit or revoke the approval of olestra, FDA
would not be required to show that olestra is unsafe. Rather, the
agency would only need to show that based upon new evidence, FDA is no
longer able to conclude that the approved use of olestra is safe, i.e.,
that there is no longer a reasonable certainty of no harm from the use
of the additive'' (Objections at 11 (quoting 61 FR 3118 at 3169)). The
objectors also refer to a statement in the olestra proceeding where FDA
stated that ``in any proceeding to [withdraw] or limit the approval of
olestra, Procter and Gamble would have the burden to establish the
safety of the additive'' (Objections at 11, n. 39 (quoting 61 FR 3118
at 3169); see also Sec. 12.87(c)). The objectors cite these excerpts
from the olestra proceeding as support for the following proposition:
``FDA has stated plainly that when FDA is in the position of raising
concerns about the safety of a food additive or other product that it
has previously authorized, the agency bears only an initial burden of
producing new information that calls into question its previous safety
finding; the burden of persuasion on the ultimate question of safety
lies with the party advocating for continued authorization of the
product'' (Objections at 11). However, contrary to the objectors'
suggestion, FDA did not say or imply that we would initiate revocation
proceedings based merely on new information that might ``[call] into
question its previous safety finding,'' nor did FDA say or imply that
we would be required to initiate such a proceeding upon being presented
with such information. Instead, FDA stated that, to initiate the
withdrawal process, we would ``need to show that based upon new
evidence, FDA is no longer able to conclude that the approved use of
olestra is safe, i.e., that there is no longer a reasonable certainty
of no harm from the use of the additive'' (61 FR 3118 at 3169).
Subsequently, in a hearing regarding the withdrawal of olestra, we
stated that the sponsor, Procter and Gamble, would then have the burden
of establishing safety (id. (citing Sec. 12.87(c)). Our review of FAP
6B4815 was entirely consistent with the statements from the olestra
proceeding cited by the objectors as to the evidence necessary to
initiate the process of repealing a food additive authorization. In
reviewing FAP 6B4815, we concluded that its assertions were not
adequately supported, and therefore, the petition did not contain
sufficient data to support a finding that there is no longer a
reasonable certainty of no harm from the currently approved uses of the
subject ortho-phthalate food additives (87 FR 31066 at 31075).
Accordingly, we did not grant the petition's request that we institute
proceedings to repeal the authorizations that were the subject of FAP
6B4815.
Third: Regarding FDA's action to revoke the authorizations for the
food additive uses of three specific perfluoroalkyl-ethyl-containing
food-contact substances (see 81 FR 5), the objectors state that FDA did
so ``based on data raising `significant questions as to the safety of
the authorized uses' '' (Objections at 9). However, the objectors'
characterization of what FDA's perfluoroalkyl ethyl action was ``based
on'' misunderstands the basis for that action. FDA stated in the
perfluoroalkyl ethyl order that ``we conclude that there is no longer a
reasonable certainty of no harm for the food contact use of these
[substances]'' and that we were, therefore, taking the revocation
action (81 FR 5 at 7).
FDA did not state that the perfluoroalkyl ethyl revocation action
was being instituted based on a finding of ``significant questions'' in
isolation. Instead, FDA stated that ``[i]n order for FDA to grant a
petition that seeks an amendment to a food additive regulation based
upon new data concerning the toxicity of the food additive, such data
must be adequate for FDA to conclude that there is no longer a
reasonable certainty of no harm for the intended use of the substance''
(81 FR 5 at 7) (FDA's statements in the ortho-phthalates denial order
were consistent, see 87 FR 31066 at 31067).
Finally, the objectors criticize FDA's approach in denying FAP
6B4815 on the same day that we amended our regulations to no longer
provide for 25 ortho-phthalates to be used in food contact applications
because these uses were abandoned by industry (i.e., the abandonment
final order). We issued the abandonment final order in response to a
separate food additive petition that was based on abandonment, not
safety (see 87 FR 31080). While the objectors assert that our decision
to take action based on abandonment ``reflects FDA's erroneous position
that it may leave the extant food-additive authorizations in effect
unless and until petitioners prove that they are in fact unsafe,'' this
assertion is unsupported.
We did not deny FAP 6B4815 for the reason that the petition failed
to prove that the ortho-phthalates are in fact unsafe (i.e., they cause
harm under their intended conditions of use); that was not the
necessary showing. Instead, we denied FAP 6B4815 because the assertions
in the petition were not adequately supported and the petition did not
contain sufficient data to support a finding that there is no longer a
reasonable certainty of no harm from the approved uses (i.e., FAP
6B4815 did not contain sufficient data to support a finding that there
is no longer a reasonable certainty in the minds of competent
scientists that the substances are not harmful under the conditions of
their intended use, see Sec. 170.3(i) (21 CFR 170.3(i)). Our denial
order (87 FR 31066) correctly stated that a petition that seeks to
amend or repeal existing regulations based on safety must contain
sufficient data to establish the existence of safety questions
significant enough to support a finding that there is no longer a
reasonable certainty of no harm from the currently approved uses (see
87 FR 31066 at 31067 (citing section 409(c) of the FD&C Act)
(describing the data requirements); Sec. Sec. 171.1 through 171.130
(prescribing food additive petition regulations)).
For all these reasons, we disagree with the objectors' assertion
that we committed any legal error that justifies modifying or revoking
our denial order.
B. Objection 2
In Objection 2, the objectors state that ``FDA unlawfully failed to
evaluate the safety of the food-additive uses of phthalates that remain
authorized'' (Objections at 13). The objectors refer to the fact that
FDA issued the denial order
[[Page 86296]]
on the same day that we issued the abandonment final order, which
amended our regulations to remove food additive authorizations for the
use of 25, but not all, authorized ortho-phthalates that were the
subject of FAP 6B4815 (see 87 FR 31080). FDA took this action based on
evidence that the authorized food additive uses of most, but not all,
of those ortho-phthalates were abandoned (id. at 31086). We did not
receive evidence showing abandonment for the following five ortho-
phthalates that remain authorized as food additives for specified uses:
diisononyl phthalate (DINP) (CAS No. 28553-12-0), diisodecyl phthalate
(DIDP) (CAS No. 26761-40-0), di(2-ethylhexyl) phthalate (DEHP) (CAS No.
117-81-7), dicyclohexyl phthalate (DCHP) (CAS No. 84-61-7), and diallyl
phthalate (DAP) (CAS No. 131-17-9, for use as a monomer). Therefore,
the food additive authorizations for these five ortho-phthalates remain
in place.
The objectors assert that FDA failed to meet its obligation to
oversee the safety of the food supply by not conducting a new safety
analysis for these five ortho-phthalates that remain authorized as food
additives (Objections at 13). The objectors assert that FDA failed to
satisfy its obligations to evaluate whether FAP 6B4815 contained ``
`new data . . . that would justify amendment' of the applicable
authorizations'' by assessing both ``the data and information in the
petition and other available relevant material.' '' (id. at 14 (quoting
81 FR 7, FDA's revocation of certain perfluoroalkyl ethyl-containing
food-contact substances)). The objectors also state that FDA's separate
RFI (87 FR 31090) regarding the still-authorized ortho-phthalates
constituted an ``attempt to kick the proverbial can down the road''
that discredits FDA's assertion in its response to FAP 6B4815 that it
had adequately assessed currently available research regarding
phthalates, and that ``unlawfully . . . defer[red]'' consideration of
an ``[issue] that FDA was required to address--years ago--in response
to [FAP 6B4815]'' (id. at 15-16).
The objectors do not request a hearing. Therefore, the objectors
waive their right to a hearing on this objection (Sec. 12.22(a)(4)).
The only remaining issue on Objection 2, then, is whether it
establishes that FDA's order denying FAP 6B4815 should be modified or
revoked. As described below, we conclude that the objectors have not
established a basis for modifying or revoking the denial order.
FDA Response: We do not agree with the objectors' assertions that
FDA's response to FAP 6B4815 was unlawful because FDA did not conduct a
new safety analysis of DINP, DIDP, DEHP, DCHP, and DAP; i.e., the five
ortho-phthalates that were the subject of their petition that still
have food additive authorizations in effect. When we originally
authorized the use of these five additives, we concluded that the use
of the food additives satisfied the statutory safety standard.
FAP 6B4815 did not identify deficiencies with our original approval
of phthalates for food contact use. Instead, FAP 6B4815 proposed a
class-based grouping approach for evaluating the safety of the subject
ortho-phthalates. In FAP 6B4815, the petitioners proposed that the
authorizations should be revoked because, according to the petition:
the subject ortho-phthalates share common chemical and pharmacological
characteristics that justify grouping them as a class; a single ADI
value from one ortho-phthalate should be applied to all members of the
proposed class collectively; and both the EDI value for select
phthalates as well as the cumulative estimated daily intake for the
proposed class significantly exceeds the purported ADI value for the
proposed class. In Objection 2, the objectors turn their attention to
the phthalates that remain authorized as food additives. Regarding
these ortho-phthalates that remain authorized, we conducted additional
analysis by evaluating, in a supplementary memorandum, whether the core
premise of FAP 6B4815 (i.e., the assertion that the subject ortho-
phthalates should be grouped as a class for purposes of a safety
assessment) could be applied to the five still-authorized ortho-
phthalates. Our review used the information contained in the petition
as well as other available information, including assessments from
other regulatory bodies (Ref. 1). In that memorandum, which we made
publicly available on the docket, we explained why the information
before us did not support the grouping of these five substances for
purposes of a safety assessment (id.). We based this conclusion on the
structural variations and the differences in metabolites, metabolism,
and toxicological endpoints across the substances. We described these
differences and the scientific literature we reviewed in the memorandum
(id.).
Objection 2 urges us to disregard the very approach for analyzing
food additive safety that the petitioners proposed in FAP 6B4815.
Specifically, Objection 2 asserts that FDA committed legal error by not
conducting a new safety assessment for the five still-authorized ortho-
phthalates even though FDA analyzed these substances in accordance with
the class-grouping approach proposed by FAP 6B4815. Therefore,
Objection 2 ignores the fact that we assessed the appropriateness of
class grouping the five still-authorized ortho-phthalates (Ref. 1).
Objection 2 largely recasts the arguments made in Objection 1 but with
respect to the five still-authorized ortho-phthalates. It does this by
citing FDA's statement in the Federal Register document in which we
authorized olestra, where we referred to ``the agency's continuing
obligation to oversee the safety of the food supply'' (61 FR 3118 at
3168; see also Objections at 13-14 and 16).
Our responses to Objection 1's assertions apply with equal force to
Objection 2's assertions that we are required to conduct a new safety
assessment with respect to the five still-authorized ortho-phthalates;
as explained earlier, a petition that seeks to amend or repeal existing
regulations based on safety must contain sufficient data to establish
the existence of safety questions significant enough to support a
finding that there is no longer a reasonable certainty of no harm from
the currently approved uses. This standard for review is consistent
with FDA's actions in the olestra proceeding. Moreover, the
administrative record makes it clear that we satisfied our duties in
reviewing FAP 6B4815. We reviewed the assertions in FAP 6B4815 in
detail. In a separate memorandum, we evaluated the five still-
authorized ortho-phthalates, using the same core premise of class
grouping proposed in FAP 6B4815 (Ref. 1).
Objection 2 also accuses FDA of publishing its RFI (87 FR 31090) to
``unlawfully . . . defer its evaluation of whether the agency's current
authorizations for food-contact uses of phthalates are in fact safe''
(Objections at 15). However, our publication of the RFI, which sought
scientific data and information on current uses, use levels, dietary
exposure, and safety data of certain ortho-phthalates, was intended to
seek any data that we do not possess, which ``may add to our knowledge
of ortho-phthalates that remain authorized for use'' (see 87 FR 31090-
31091). The fact that we sought data from the public to inform our
oversight of authorized ortho-phthalates does not reflect any
deficiency in our evaluation of the specific assertions in FAP 6B4815
based on the information that was in the record.
Objection 2 also takes issue with FDA's response to a comment to
the docket concerning FAP 6B4815, in which we stated that ``FDA is
aware of
[[Page 86297]]
the research that has been conducted with respect to phthalates and
that FDA considered `the research in its evaluation of the petition' ''
(Objections at 14 (quoting 87 FR 31066 at 31076)). The objectors
criticize FDA for not disclosing how we considered ``the research that
has been conducted with respect to phthalates'' (Objections at 14). The
objectors also assert that FDA's statement about having considered the
research related to phthalates ``cannot be credited'' given that we
issued the RFI on the same day that we denied FAP 6B4815. The
statements that the objectors excerpt in Objection 2 were made in
response to comments that referred to literature describing phthalates
as hormone disrupting chemicals that are linked to certain adverse
health outcomes (see 87 FR 31066 at 31076). We responded to the
comments by stating that we are generally aware of the research on
phthalates and considered the research cited in the comments (id.).
The denial order, as well as the memoranda we made publicly
available when we published the denial order (specifically, the
chemistry memorandum, the toxicology memorandum, and the memorandum
evaluating the five still-authorized ortho-phthalates), demonstrate
that we considered the numerous research studies in the administrative
record, including the research cited in the comments (Refs. 1, 3, and
4). While we are generally aware of updated toxicological and use
information that is publicly available, we published the RFI so that we
could obtain a more complete picture of the data relevant to the
general safety, dietary exposure, and usage of ortho-phthalates, which
may include data that stakeholders have not made public (see 87 FR
31090).
Objection 2 also includes certain other arguments. In the last
paragraph of Objection 2, the objectors repeat arguments they made in
Objection 1 regarding the type of evidence that FAP 6B4815 was required
to proffer (Objections at 16). Because we address these arguments in
response to Objection 1, we do not repeat our evaluation of these
arguments here. A footnote in Objection 2 also refers to the premarket
review requirements for food additives (Objections at 14, n.48).
However, as explained in response to Objection 1, FAP 6B4815 is a
request for postmarket action, and our response to the petition did not
conflict with the premarket review framework invoked by the objectors.
Additionally, Objection 2 asserts that FDA should have evaluated FAP
6B4815 to determine whether it presented new data (Objections at 16).
As explained in our response to Objection 1 regarding the olestra
proceeding, repeal petitions must do more than merely point to the
existence of new data.
For these reasons, we disagree with the objectors' assertion that
we committed any legal error that justifies modifying or revoking our
denial order.
C. Objection 3
In Objection 3, the objectors argue that FDA's denial order ``fails
to address new toxicity information that raises significant questions
about the safety of the approved food-additive uses of phthalates''
(Objections at 17). In particular, the objectors state that new
information became available since petitioners last supplemented the
record for FAP 6B4815 in 2017. The objectors point to numerous studies
and declarations concerning the health effects of ortho-phthalates.
Most of these studies and declarations were submitted to the docket
dedicated to their citizen petition addressing ortho-phthalates. In
light of these studies and declarations, the objectors state that FDA
should not have allowed DAP, DCHP, DEHP, DINP, and DIDP to remain
authorized for food-contact use ``without addressing the substantial
body of relevant toxicity information'' (Objections at 17).
The information that the objectors identify in Objection 3 includes
studies that they describe as linking DEHP exposure to developmental
toxicity, developmental neurotoxicity, adult neurotoxicity,
reproductive toxicity, endocrine disruption, hepatoxicity, metabolic
toxicity, immunotoxicity, and epigenetic alterations (id. at 17-18).
The objectors describe these studies as ``provid[ing] evidence for a
number of DEHP-related adverse health outcomes, including altered adult
sex behavior, delayed puberty, insulin sensitivity, obesity,
hypothyroidism, cognitive impairment, and even depressive-link
behaviors'' (Objections at 18). The objectors further assert that
animal studies have linked DINP exposure to hepatoxicity and
exacerbated nerve cell damages and decline in learning and memory, as
well as elevated cholesterol (id.). In addition, the objectors assert
that two studies ``found that phthalate mixtures induced reproductive
tract malformations in male rats'' and point to epidemiological studies
they describe as ``providing relevant toxicity information'' with
respect to associations between DEHP and multiple adverse health
outcomes (id. at 18). The objectors reference studies they describe as
linking DINP and/or DEHP to insulin resistance, delayed puberty onset
in boys, preterm birth, and neurodevelopmental harm (id. at 19). The
objectors further point to certain publications by federal and European
agencies (id.). Finally, the objectors point to the declarations they
submitted to FDA that assert that phthalate exposure causes harm (id.
at 20). The objectors request a hearing on Objection 3. They state that
the hearing would address ``whether the many years' worth of data and
information regarding the human health hazards of phthalates found in
the diet presented in support of the Petition and Objections raise
significant questions regarding the safety of the authorized food-
additive uses of DAP, DCHP, DEHP, DINP, and DIDP'' (Objections at 21).
FDA Response: To justify a hearing on this objection, it is not
enough for the objectors to simply name health effects linked to the
still-authorized ortho-phthalates or to list publications and
declarations that address the topic of ortho-phthalates generally. The
objectors cite numerous recent studies and publications but do not
provide meaningful analysis or explanation for why these materials
support a finding that there are significant questions about the safety
of the still-authorized ortho-phthalates for their currently authorized
conditions of use. The objectors' mere citation of these studies and
declarations is not adequate to justify resolution in the objectors'
favor of the factual question about safety of the still-authorized food
additive uses of ortho-phthalates; the existence of toxicity findings,
alone, is insufficient to establish significant questions about whether
there is no longer a reasonable certainty of no harm for an authorized
use and is, therefore, insufficient to justify resolution of the
factual question of safety (Sec. 12.24(b)(3)).
All substances exhibit toxic effects at high enough exposure
levels, and most substances exhibit an exposure threshold below which
they do not exhibit a toxic effect. To support an assertion that the
authorized use of a substance is unsafe or presents significant safety
questions, it is not sufficient to cite studies that indicate that a
substance is associated with a toxic effect; rather, that effect must
be placed in the context of exposure. For this reason, when evaluating
the safety of a substance, scientists will often determine the ``dose-
response'' relationship of substance exposure and toxic effect.
To establish with reasonable certainty whether a food additive is
harmful under its intended conditions of use, FDA considers the
projected human dietary exposure to the food additive, the additive's
toxicological data, and
[[Page 86298]]
other available relevant information (such as published literature). To
determine safety, one approach we may use is to compare the estimated
dietary intake of the food additive to an ADI level established by
appropriate toxicological data. An ADI is the amount of a substance
that is considered safe to consume each day over the course of a
person's lifetime (Ref. 2). The ADI is typically based on an evaluation
of toxicological studies to determine the highest appropriate
experimental exposure dose level in animal studies that was shown to
cause no adverse effect (also known as the no-observed-adverse-effect
level, or NOAEL), divided by an appropriate safety factor (id.). A
calculated dietary exposure to the food additive (i.e., the EDI) at or
below the ADI is considered consistent with a reasonable certainty of
no harm (id.).
The objectors list publications of various animal and in vitro
studies in Objection 3, yet they do not attempt to address whether the
publications are relevant to assessing an appropriate ADI, calculating
an EDI, or whether the dietary exposure could result in a toxic effect
(i.e., the estimated daily exposure exceeds an appropriate ADI). The
petitioners proposed an ADI in their underlying food additive petition,
but our denial order explained why the proposed ADI was not supported
and Objection 3 does not address or otherwise engage with FDA's
identified concerns. Furthermore, the ADI that FAP 6B4815 proposed in
the underlying petition was not based on any of the studies cited in
Objection 3.
The information provided in Objection 3 consists largely of studies
that link some phthalates to certain identified health effects. Some
studies are useful for hazard identification to determine additional
hypotheses for future research, but these studies are not designed to
provide information to show at which threshold level of dietary
exposure these effects may occur. Such hazard identification is the
first step in a risk assessment, but the existence of a possible effect
does not necessarily mean that the effect is the appropriate endpoint
to use for a risk assessment, that the effect will occur at the level
of the substance in the diet, or that the substance is in fact unsafe
for its intended use. As the hazard identification studies do not
examine a dose-response relationship, these data are not adequate for
identifying a NOAEL to perform a risk assessment for the food contact
uses of the still-authorized phthalates. The data from such hazard
identification studies are, therefore, not adequate to establish
significant questions about whether there is no longer a reasonable
certainty of no harm from the authorized uses and are insufficient to
justify resolution of the factual question of safety.
The other information the objectors cite in Objection 3 includes
epidemiological studies. While epidemiological studies may suggest a
possibility of occurrence of an effect, they are generally not useful
for risk assessment due to a lack of control of confounders such as
dietary, medical, and lifestyle factors, socioeconomic status, and
characterization of past exposures. Some studies may also include self-
reported data by the test subjects which increases the potential for
biases and inaccuracies, making it challenging to establish a
consistent and reliable relationship between the cause and effect.
Therefore, although epidemiological studies may be considered
supplementary to the available toxicological data for conducting a
safety evaluation, in general, they are not suitable to provide primary
or sufficient basis for performing a risk assessment.
The objection also cites the two declarations that were also
submitted to the docket for the ortho-phthalates citizen petition. The
declarations cite numerous epidemiological studies and a few animal
studies that provide information on potential hazard identification.
The declarations do not provide any dietary exposure estimates for the
remaining five phthalates from their authorized food additive uses or
additional supporting information for assessing the safety of the uses
of the phthalates studied as food contact substances.
The Federal and European publications cited in Objection 3 are the
``Toxicological Profile for DEHP'' released by the Agency for Toxic
Substances and Disease Registry (``ATSDR'') (Ref. 5), the ``Technical
Report on the Toxicology and Carcinogenesis Studies of Di(2-
etyhylhexyl) Phthalate'' (Ref. 6) released by the National Toxicology
Program (NTP), and an updated risk assessment of DEHP, DBP, BBP, DINP,
and DIDP (Ref. 7) for use in food-contact materials released by the
European Food Safety Authority (EFSA). Objection 3 states that these
studies ``provide novel insights and weight of evidence analyses that
are relevant to the safety reevaluations that FDA must conduct''
(Objections at 19). However, the objection does not provide any
explanation for how these studies would be adequate to assess the
safety of the substances' authorized food additive uses and, therefore,
the objection does not establish that these studies create significant
questions about whether there is no longer a reasonable certainty of no
harm such that they would resolve the factual question of safety.
The objection also cites two dose-response studies to state that
``examining the cumulative effects of several phthalates (including
DCHP and DEHP) found that phthalate mixtures induced reproductive tract
malformations in male rats at doses well below those associated with
harm from individual chemicals'' (Objections at 18). However, the
objection fails to mention that, while the study referenced (Conley, et
al. 2021) (Ref. 8) did include two of the five phthalates that still
have food additive uses in the United States (DEHP and DCHP), the study
examined effects using a mixture of nine phthalates and five non-
phthalate pesticides cumulatively, which cannot separate adverse
effects caused by either a single phthalate, group of phthalates, or
the non-phthalate pesticides. Similarly, the other study referenced
(Conley, et al. 2018) (Ref. 12) dosed the rats using a mixture of 18
chemicals, which included 9 phthalates (including DEHP and DCHP) and
nine non-phthalate pesticides or drugs. Therefore, the two dose-
response studies cited in Objection 3 do not directly address the
safety of the food contact uses of the five still-authorized ortho-
phthalate food additives.
For these reasons, the objectors failed to demonstrate how the
cited studies, publications, declarations, and facts asserted would be
sufficient to justify resolution of the safety question in the
objectors' favor. The objectors did not justify why the studies cited
in Objection 3 would establish questions significant enough to support
a finding that there is no longer reasonable certainty of no harm or
that there are ``significant questions regarding the safety of the
authorized food-additive uses of DAP, DCHP, DEHP, DINP, and DIDP.'' In
other words, the objectors did not establish that the information in
the record is adequate to justify their factual assertion regarding
safety. Accordingly, Sec. 12.24(b)(3) supports denial of the request
for the hearing. A hearing will not be granted when the information
cited is not sufficient to support the factual assertion (Sec.
12.24(b)(3)).
Furthermore, a hearing will not be held unless resolution of the
factual issue in the way sought by the objector is adequate to justify
the action requested (Sec. 12.24(b)(4)). In Objection 3, the objectors
alter the action requested from what they originally sought in FAP
[[Page 86299]]
6B4815, which was the revocation of food additive approvals for 28
ortho-phthalates. They now seek a hearing ``regarding the safety of . .
. DAP, DCHP, DEHP, DINP, and DIDP'' (Objections at 21)--the five ortho-
phthalates that remain authorized for use as food additives. This
objection does not demonstrate how the outcome of the proceeding would
be different if the factual issues addressed in this objection were
resolved in the way sought, because this objection does not address the
underlying requested action.
The underlying requested action was that FDA revoke the food
additive authorizations for the 28 subject ortho-phthalates based on
their grouping as a class. The basis for the underlying requested
action was that FDA should: (1) consider the 28 subject ortho-
phthalates to be a single class of chemically and pharmacologically
related substances for safety evaluation; (2) apply FAP 6B4815's
proposed ADI to the purported class; and (3) determine that the EDI for
the class exceeds that ADI. However, Objection 3 focuses only on five
of the 28 ortho-phthalates and asks that we take action with respect to
these five. Thus, we are denying the request for a hearing in Objection
3 because a hearing will not be granted on factual issues that are not
determinative of the action requested in the proceeding (Sec.
12.24(b)(4)).
It is important to note that the objectors claim that our denial
order was deficient because it did not address questions they failed to
ask, and to take actions they failed to request, in the petition that
is the subject of this proceeding.\1\ Such matters are outside the
scope of the process set forth in section 409(f)(1) of the FD&C Act,
which requires objections to ``[to specify] . . . the provisions of the
[denial] order deemed objectionable.'' Because this objection and the
corresponding request for a hearing seek determinations regarding
issues that are outside the scope of the provisions of FDA's denial
order, the objection and hearing request are improper. The assertions
and information cited in Objection 3 regarding the health effects of
the five still-authorized ortho-phthalate food additives would not
change our conclusion that the requested action in FAP 6B4815 to remove
the food contact authorizations for a purported class of 28 ortho-
phthalates was not adequately supported. A hearing will not be granted
unless resolution of a factual issue in the way sought by the objector
is adequate to justify the action requested (Sec. 12.24(b)(4)). This
conclusion does not change the fact that FDA may, in the future,
consider a subset of ortho-phthalates that remain authorized for use in
food contact applications to be a single class of chemically and
pharmacologically related substances for purposes of a safety
evaluation.
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\1\ While FDA is denying this request for a hearing, we again
note that, in the Federal Register of May 20, 2022, we issued an RFI
seeking scientific data and information on current uses, use levels,
dietary exposure, and safety data for ortho-phthalates that remain
authorized for use in food contact applications (87 FR 31090). Any
future evaluation may be informed by, among other things,
appropriate scientific data and information submitted in response to
the RFI.
---------------------------------------------------------------------------
D. Objection 4
In Objection 4, the objectors take the position that we misapplied
section 409(c)(5)(B) of the FD&C Act, which provides that, in
determining whether a food additive is safe under section 409 of the
FD&C Act, FDA is to ``consider among other relevant factors'' the
cumulative effect of such additive in the diet of man or animals,
taking into account any chemically or pharmacologically related
substance or substances in such diet. The objectors assert that to
``conduct the safety evaluations the Food Act demands, FDA must
withdraw the Order and properly apply the statutory standard for
chemically or pharmacologically related substances to account for the
cumulative effects of all related phthalates in the diet'' (Objections
at 26). Because this objection raises a purely legal dispute, no
hearing is warranted to adjudicate it (Sec. 12.24(b)(1)). Even if a
hearing were available, the objectors did not request one with respect
to this objection and therefore waive any right to a hearing (Sec.
12.22(a)(4)). The only remaining issue on Objection 4, then, is whether
the objection establishes that FDA's order denying FAP 6B4815 should be
modified or revoked. As described below, we conclude that the objectors
have not established a basis for modifying or revoking of the denial
order.
The objectors assert that while the denial order ``does not
articulate FDA's interpretation of what constitutes a `related'
substance,'' FDA nevertheless ``applied an erroneous interpretation of
`chemically or pharmacologically related' substances for which the Food
Act mandates a cumulative effects analysis'' (Objections at 22). In
describing our review of FAP 6B4815, the objectors assert that FDA
``appeared to interpret'' this provision of the FD&C Act as only
applying if substances that are known to share all of the following
three factors: ``(1) well-defined similarities in chemical structure,
and (2) a common defined toxicological endpoint, and (3) a common
mechanism of action associated with that common endpoint'' (internal
quotations omitted) (Objections at 23). The objectors disagree with
this purported requirement and state that ``FDA's regulations make the
focus on common effects, as opposed to a common mechanism of action''
(citing Sec. 170.18(a)) (Objections at 24). The objectors assert the
proper focus is on common health effects (id.). The objectors state,
``it would be irrational and contrary to the Food Act's safety mandate
to ignore the cumulative effects of substances in the diet that are
known to contribute to the same adverse health effect because the
mechanism of action is not known to be the same for both substances or
is not known at all'' (id.). Finally, the objectors assert in Objection
4 that we ``erred in asserting that it is only required to consider the
cumulative effects of substances that would be suitable for grouping
into a single category for risk assessment'' (internal quotations
omitted) (id.).
FDA Response: Objection 4 questions FDA's evaluation of the claim
made in FAP 6B4815 that the 28 subject ortho-phthalates are chemically
and pharmacologically related and should therefore be treated as a
class for purposes of evaluating their safety. In describing FDA's
evaluation of this claim, the objectors assert that FDA required all of
the following three factors to be satisfied: ``(1) well-defined
similarities in chemical structure, and (2) a common defined
toxicological endpoint, and (3) a common mechanism of action associated
with that common endpoint'' (Objections at 23). As support for the
proposition that FDA imposed such a requirement, Objection 4 cites to
both the denial order and FDA's toxicology memorandum supporting the
denial order (Ref. 4).
There is no place in the denial order where we imposed such a
requirement. In the denial order, we noted that other regulatory and
scientific bodies have grouped phthalates based on these three
considerations (87 FR 31066 at 31071). We also noted in our denial
order that FAP 6B4815's approach to class grouping was not consistent
with the approach taken by other regulatory and scientific bodies,
given that FAP 6B4815 identified the work of those other bodies as a
basis for the requested action (id.).
To support their claim in Objection 4 that FDA required FAP 6B4815
to satisfy the three factors that the objectors identify, the objectors
cite page 10 of our toxicology memorandum for FAP 6B4815 (Ref. 4). The
toxicology memorandum, however, did not suggest that FDA required the
three factors as a
[[Page 86300]]
condition for grouping. Rather, this portion of the toxicology
memorandum addressed the claim in FAP 6B4815 that the 28 subject ortho-
phthalates have similar health effects. In doing so, the toxicology
memorandum noted that while FAP 6B4815 asserted that all ortho-
phthalates must be assumed to have ``reproductive/developmental, and
endocrine health effects,'' the terms ``reproductive, developmental,
and endocrine effects are broad terms that cover a wide range of
toxicological effects that are not necessarily similar and can be
caused by a variety of mechanisms.''
The toxicology memorandum also noted that the endocrine system is a
generic term which encompasses multiple organs and multiple hormonal
pathways, and disruption of different hormonal pathways may not result
in common health outcomes (i.e., are not related). The toxicology
memorandum further stated that the proposed grouping of phthalates
based on these broad terms was not consistent with the types of
grouping undertaken by other scientific bodies. As with the denial
order, the toxicology memorandum discussed the considerations
underlying the groupings undertaken by these other scientific bodies
because FAP 6B4815 pointed to the evaluations by these bodies as
support for the requested action--not because FDA was presenting or
imposing the three factors that the objectors identify. Thus, Objection
4 is incorrect in asserting that FDA required the three factors the
objectors identify.
Likewise, the objectors mischaracterize FDA's denial order by
stating that, in assessing whether the subject ortho-phthalates are
pharmacologically related, we erred in assessing whether the 28 ortho-
phthalates exhibit a common mechanism of action; the objectors state
that the more appropriate focus is whether there are common health
effects (Objections at 24). According to Objection 4, ``it would be
irrational and contrary to the Food Act's safety mandate to ignore the
cumulative effects of substances in the diet that are known to
contribute to the same adverse health effect because the mechanism of
action is not known to be the same for both substances or is not known
at all'' (id.). In fact, we did evaluate the claim in FAP 6B4815
regarding common health effects, and our denial order explained why
this claim was lacking. Specifically, our denial order explained that
the generalized assertion in FAP 6B4815 that all the cited effects are
pharmacologically related because they ``result from the effects of
ortho-phthalates on the endocrine system'' does not acknowledge that
the endocrine system is a generic term that encompasses multiple organs
and multiple hormonal pathways (87 FR 31066 at 31070). A substance that
exhibits activity in one hormonal pathway may not have any effect on a
different hormonal pathway, and disruption of different hormonal
pathways may not result in common health outcomes (id.).
Our denial order also explained that the claim in FAP 6B4815 that
all studied ortho-phthalates demonstrate similar effects on the
endocrine system was directly contradicted by data cited in the
petition (id.). We explained that one of the most commonly studied
pharmacological effects for phthalates is antiandrogenicity and that
the data cited in the petitioners' literature search indicates that,
among the 12 phthalates with available toxicological information, seven
phthalates exhibit antiandrogenic effects, but four phthalates have
been shown to not exhibit antiandrogenic effects (id. at 31070 through
31071). Thus, FDA's evaluation of FAP 6B4815 did, in fact, evaluate
whether the 28 ortho-phthalates have common health effects. Objection
4, therefore, errs in suggesting that FDA's evaluation was ``irrational
and contrary to the Food Act'' by virtue of disregarding evidence that
the 28 ortho-phthalates cause common health effects.
Finally, Objection 4 is misplaced in asserting that FDA's denial
order maintained that FDA ``is only required to consider the cumulative
effects of substances that would be suitable for grouping into a single
`category for risk assessment' '' (Objections at 24). FDA's denial
document made no such statement. The internal quotation appears to
refer to the following sentence in our denial order: ``the common
functional group rationale should be supported with a discussion of any
structural variations within that common functional group definition
and an explanation of why the chemical-structural differences between
members would not impact the suitability of the category for risk
assessment'' (87 FR 31066 at 31069) (emphasis added). Contrary to the
claim in Objection 4, this sentence does not announce any legal
interpretation regarding when FDA may consider the cumulative effects
of different food additives. Rather, it addresses one of the rationales
offered by FAP 6B4815 for grouping the 28 ortho-phthalates: that the
substances share a common functional group. In the sentence that
petitioners quote from in Objection 4, we explain the type of
scientific evidence that is recommended to support an assertion of a
common functional group, as outlined in the Organization for Economic
Co-operation and Development (OECD) guidance that the original petition
cites as support of its assertion that the 28 ortho-phthalates share a
common functional group (Ref. 9).
For these reasons, we disagree with the assertion in Objection 4
that FDA committed legal error that justifies modifying or revoking our
denial order. We also note that, even if there was a legal error with
FDA's application of section 409(c)(5)(B) of the FD&C Act, our
resolution of FAP 6B4815 would have been the same. Our denial order did
not rest solely on the question of whether the 28 ortho-phthalates
should be considered a class for purposes of safety evaluation. Our
denial order also rested on our conclusion that petitioners did not
adequately support the other key assertions in FAP 6B4815 (i.e., the
assertion proposing a purported ADI for DEHP, the assertion that the
purported ADI should be applied to all 28 phthalates, and the assertion
that the EDI for the asserted class of ortho-phthalates significantly
exceeds the proposed ADI). Thus, even if FAP 6B4815 had established
that there was sufficient evidence to support treating the 28 subject
ortho-phthalates as a class, FDA would have denied the petition because
it failed to establish the two subsequent assertions supporting the
petition's request to revoke the authorizations of such substances.
E. Objection 5, 5-A, 5-B, and 5-C
In Objection 5, the objectors argue that ``FDA acted arbitrarily
and unlawfully'' by not considering the relatedness of smaller groups
of ortho-phthalates (Objections at 26). The objection contends that the
relatedness of different groups of ortho-phthalates would mean that
``FDA must consider their cumulative effects'' (id. at 26). The premise
of this objection is that FDA's denial order erred in analyzing the
relatedness of all the 28 ortho-phthalates that were the subject of FAP
6B4815, because on the same day that FDA issued the denial order we
also issued the abandonment order. In Objection 5, the objectors assert
that FDA's analysis of the relatedness of the 28 ortho-phthalates was
``irrational on its face'' (id.). The objectors separate Objection 5
into three separate sub-objections. In each sub-objection, the
objectors propose that FDA grant a public hearing to determine that the
proposed groupings of phthalates show that the phthalates are
chemically or pharmacologically ``related.'' The
[[Page 86301]]
specific groupings proposed in Objection 5 are:
(A) A group of nine ortho-phthalates, consisting of the five ortho-
phthalates that remain approved as food additives following FDA's
abandonment order combined with four ortho-phthalates that are
authorized for use as food-contact substances because they were
sanctioned prior to the food additive amendments to the FD&C Act (i.e.,
they are prior sanctioned). A ``prior sanction'' is ``an explicit
approval granted with respect to use of a substance in food prior to
September 6, 1958,'' by the FDA or the United States Department of
Agriculture, pursuant to the FD&C Act, the Poultry Products Inspection
Act, or the Meat Inspection Act (Sec. 170.3(l)). The term ``prior
sanction'' derives from section 201(s)(4) of the FD&C Act (21 U.S.C.
321(s)(4)), which excepts from the definition of a ``food additive''
any substance ``used in accordance with a sanction or approval granted
prior to'' September 6, 1958, the date of enactment of the Food
Additives Amendment to the FD&C Act. Before that date, FDA had approved
specific uses of various food-contact materials or food ingredients by
issuing letters and other statements that stated that in FDA's view
these substances were ``not considered unsafe,'' that they did ``not
present a hazard,'' or that FDA ``did not object to their use.''
The nine ortho-phthalates that are at issue in this sub-objection
are Di(2-ethylhexyl) phthalate (DEHP), Dicyclohexyl phthalate (DCHP),
Diisononyl phthalate (DINP), Diisodecyl phthalate (DIDP), Dialyl
phthalate (DAP), Diethyl phthalate (DEP), Butyl phthalyl butyl
glycolate (BPBG), Diisooctyl phthalate (DIOP), and Ethyl phthalyl ethyl
glycolate (EPEG). The objectors assert that these nine ortho-phthalates
should be grouped because they are ``chemically related'' and grouping
them due to a common functional group would be consistent with the
Organization for Economic Co-operation and Development (OECD) Guidance
on Grouping Chemicals (Objections at 28).
(B) A group of seven ortho-phthalates, which consist of a subgroup
of the nine ortho-phthalates that remain either approved in our food
additive regulations or authorized because they are prior sanctioned.
These ortho-phthalates are DCHP, DEHP, DINP, DAP, DEP, DIDP, and DIOP.
The objectors state that these ortho-phthalates are ``pharmacologically
related substances on account of their common effect on developmental
toxicity'' (Objections at 31).
(C) A group of four ortho-phthalates, which consist of a subgroup
of the nine ortho-phthalates that remain approved in our food additive
regulations or authorized because they are prior sanctioned. These
ortho-phthalates are DCHP, DEHP, DINP, and DIOP. The objectors state
that these ortho-phthalates should be considered cumulatively ``based
on their structural similarity and common antiandrogenic effects
associated with the mechanism of action of reduced fetal testosterone
production'' (Objections at 35).
FDA Response: Even if the objectors' statements regarding the
asserted relatedness of these different groups of ortho-phthalates were
shown to be correct, the outcome of FDA's denial order would not be
altered. FAP 6B4815 did not seek to establish the relatedness of these
different groups of ortho-phthalates, consisting of both food additives
and prior sanctioned substances, for purposes of safety assessment.
Rather, FAP 6B4815 proposed that FDA take a different approach.
Specifically, FAP 6B4815 requested that we treat 28 ortho-phthalates
authorized for food contact use in our food additive regulations as a
class, apply a single ADI to the purported class, and then compare
exposure estimates for the 28-member class to the proposed ADI. FAP
6B4815 did not ask us to consider these proposed groups of nine, seven,
and four ortho-phthalates. As Objection 5 does not demonstrate how the
outcome of this proceeding would be different based on the new
assertions of the new proposed groupings, we deny the request for a
hearing. A hearing will not be granted unless resolution of a factual
issue in the way sought by the objector is adequate to justify the
action requested (Sec. 12.24(b)(4)). As courts have recognized, the
issues raised in objections ``must be material to the question
involved; that is, the legality of the order attached'' (Pineapple
Growers Ass'n of Haw., 673 F.2d at 1085).
The objectors claim that our denial order was deficient because it
did not address questions they failed to ask, and to take actions they
failed to request, in the petition that is the subject of this
proceeding. Such matters are outside the scope of the process set forth
in section 409(f)(1) of the FD&C Act, which requires objections to
``[to specify] . . . the provisions of the [denial] order deemed
objectionable.'' The type of information necessary to consider for
grouping chemicals for safety assessment is complex and proposing new
groupings at the objection phase--when those groupings were not within
the scope of the denial order--does not allow for full consideration of
the complex scientific issues involved (see e.g., Ref. 1). Because
Objection 5 and the corresponding request for a hearing seek
determinations regarding issues that are outside the scope of the
provisions of FDA's denial order, the objection and hearing request are
improper.
Separately, the objectors claim that FDA's review of FAP 6B4815
failed to account for our abandonment order (Objections at 26). We
disagree. On the same day that we issued our denial order, we published
a detailed memorandum in which we addressed the purported relatedness
of the five ortho-phthalates that remained approved as food additives
following FDA's action on the abandonment petition (Ref. 1). FDA
evaluated whether the five still-approved ortho-phthalates should be
treated as a class for purposes of safety assessment and concluded that
the five substances should not be grouped together for safety
assessment. We based this conclusion on the structural variations and
the differences in metabolites, metabolism, and toxicological endpoints
across the substances. We described these differences in the memorandum
that is in the docket (id.).
F. Objection 6
In Objection 6, the objectors assert that FDA should have treated a
group of eight ortho-phthalates as a class because the eight ortho-
phthalates, are ``antiandrogenic and are likely present in the diet''
(Objections at 38). The eight ortho-phthalates that Objection 6
identifies for treatment as a class are Di(2-ethylhexyl) phthalate
(DEHP), Dicyclohexyl phthalate (DCHP), Diisononyl phthalate (DINP),
Diisooctyl phthalate (DIOP), Butyl benzyl phthalate (BBP), Dibutyl
phthalate (DBP), Diisobutyl phthalate (DiBP), and Dihexyl phthalate
(DnHexP). The eight ortho-phthalates are a subset of the 28 ortho-
phthalates that were the subject of FAP 6B4815. This proposed class
consists of a subgroup of the ortho-phthalates that remain approved for
food-contact use under our food additive regulations (DCHP, DEHP, and
DINP), one that is prior sanctioned (DIOP), and four that are no longer
authorized for food-contact use due to our abandonment order (DiBP,
DBP, BBP, and DnHexP). The objection contends that the relatedness of
these eight ortho-phthalates triggers FDA's obligation to take into
account their cumulative effect, and the fact that FDA's denial order
did not identify them as a class means that FDA acted ``contrary to the
Food Act and its regulations by failing to account for the
[[Page 86302]]
cumulative effects of dietary exposure'' to this proposed group (id.).
The objectors request a hearing on Objection 6. They state that the
hearing would address ``whether FDA unlawfully failed to consider the
cumulative effects of phthalates in the diet that are chemically or
pharmacologically related to phthalates that remain approved for food-
additive use'' (internal quotations omitted) (Objections at 39 through
40). The objectors state that at a hearing they would ``offer expert
testimony regarding the presence of BBP, DBP, DIBP, and DnHP in the
diet; the chemical and pharmacological relationship among these
substances and DEHP, DINP, DCHP, and DIOP; and the approach or
approaches FDA could take to appropriately account for the cumulative
effects of these substances'' (id. at 40).
FDA Response: Even if the objectors' asserted statements regarding
the chemical and pharmacological relatedness of this group of eight
ortho-phthalates were shown to be correct, the outcome of FDA's denial
order would not be altered. The underlying proceeding did not address
the relatedness of this smaller group of ortho-phthalates for purposes
of safety assessment. FAP 6B4815 proposed that FDA take a different
course of action. Specifically, as stated earlier, FAP 6B4815 requested
that we group together 28 ortho-phthalates approved for food contact
use in our food additive regulations, apply a single ADI to the
purported class, and then compare exposure estimates for the 28-member
class to the proposed ADI. FAP 6B4815 did not ask us to consider this
new proposed group of eight ortho-phthalates.
As Objection 6 does not demonstrate how the outcome of this
proceeding would be different if the assertions regarding the new
proposed grouping in Objection 6 were shown to be correct, we deny the
request for the hearing. A hearing request will not be granted unless
resolution of a factual issue in the way sought by the objector is
adequate to justify the action requested (Sec. 12.24(b)(4)). As courts
have recognized, the issues raised in objections ``must be material to
the question involved; that is, the legality of the order attached''
(see Pineapple Growers Ass'n of Hawaii, 673 F.2d at 1085). With this
Objection, petitioners would have us address a question that was not
involved in the underlying proceeding. As noted earlier, the objectors
claim that our denial order was deficient because it did not address
questions they failed to ask, and to take actions they failed to
request, in the petition that is the subject of this proceeding.
However, such matters are outside the scope of the process set forth in
section 409(f)(1) of the FD&C Act, which requires objections to ``[to
specify] . . . the provisions of the [denial] order deemed
objectionable.'' Because Objection 6 and the corresponding request for
a hearing seek determinations regarding issues that are outside the
scope of the provisions of FDA's denial order, the objection and
hearing request are improper.
Additionally, FDA did consider the relatedness of the 28 ortho-
phthalates that were the subject of FAP 6B4815 as well as the five
ortho-phthalates that remain approved for food-contact use in our food
additive regulations and did not find that the substances should be
grouped as a class for purposes of safety assessment (87 FR 31066 at
31075 and Ref. 1).
G. Objection 7
In Objection 7, the objectors argue that ``FDA erred insofar as it
required the petitioners to prove that current dietary exposure to the
approved phthalates exceeds a safe level'' (Objections at 40). The
objectors assert that FDA's evaluation of the information in FAP 6B4815
related to exposure ``is contrary to the applicable statutory and
regulatory provisions, the proper burden of proof, and FDA's past
practice'' (Objections at 42). Because this objection raises a purely
legal dispute, no hearing is warranted to adjudicate it (Sec.
12.24(b)(1)). Even if a hearing were available, the objectors did not
request one with respect to this objection and therefore waive any
right to a hearing (Sec. 12.22(a)(4)). The only remaining issue on
Objection 7, then, is whether this objection establishes that FDA's
order denying FAP 6B4815 should be modified or revoked. As described
below, we conclude that the objectors have not established a basis for
modifying or revoking the denial order.
In Objection 7, the objectors assert that, while FDA is to consider
exposure data when approving new food additives, ``FDA's regulation
governing petitions to amend or repeal food additive regulations does
not require the petitioners to tender exposure data'' (Objections at
40). The objectors contend that, rather than requiring repeal petitions
to provide exposure data, FDA's regulations provide that repeal
petitions ``may be based solely on `new data as to the toxicity of the
chemical' or other `new information' showing `that experience with the
existing regulation may justify its amendment or repeal' '' (quoting
Sec. 171.130(b)) (id.). The objectors acknowledge that Sec.
171.130(b) provides for new data to be furnished in the form specified
in Sec. 171.1 but argue that ``[t]o the extent that the substantive
requirements of section 171.1 are applicable to petitions seeking
revocation or repeal of food additive regulations, that provision also
does not require exposure data'' (Objections at 41). The objectors
further state that ``to the extent that FDA interprets [Sec. 171.1] to
require exposure information, it must apply that requirement in a
manner that comports with the burden of production the Food Act places
on petitioners seeking revocation of food additive authorizations based
on safety concerns,'' such that ``FDA cannot lawfully require such
petitioners to tender data proving that existing exposure to the
additives at issue and related substances is unsafe'' (id. at 41). The
objectors assert that FDA's action on certain long-chain perfluorinated
compounds (81 FR 5) was consistent with this interpretation (id. at 41
through 42).
FDA Response: We disagree with the assertion that we applied an
incorrect legal standard in evaluating FAP 6B4815. We reviewed the
exposure information provided in FAP 6B4815 based on the petition's
specific assertions. FAP 6B4815 asserted that the estimated dietary
exposure for the asserted class of ortho-phthalates significantly
exceeded the proposed ADI for the purported class, and the petition
included dietary exposure estimates for select phthalates. In our
denial order, we evaluated the proposed dietary exposure values and
explained why they were not adequately supported. Specifically, we
observed that FAP 6B4815 did not account for: (1) The imprecision of
relying on exposures estimates derived from biomonitoring studies to
assess dietary exposure; (2) the diverse parameters used in the cited
dietary exposure analyses to determine which analysis, if any, most
accurately reflects true U.S. dietary exposure; and (3) the
contradiction in reported dietary exposure values between those
analyses (87 FR 31066 at 31075; see also Ref. 3). Under our food
additive regulations, petitioners must do more than request changes to
FDA's food additive regulations. Petitioners must provide support for
the requested changes. Food additive petitions seeking amendments to
existing authorizations ``must include full information on each
proposed change'' (In re Natural Resources Defense Council, 645 F.3d
400, 403 (D.C. Cir. 2011) (internal quotations and citations omitted)).
Here, FAP 6B4815
[[Page 86303]]
included dietary exposure estimates, and our denial order evaluated
those estimates and explained why they were lacking. In doing so, we
did not advance any new standards for the type of information that must
be included in repeal petitions.
Further, our denial order was not inconsistent with our action on
long-chain perfluorinated compounds. In that action, we evaluated
available exposure information and explained why we were not able to
determine migration of the relevant food contact substances (FCSs) into
food as a result of their approved food-contact use. For this reason,
FDA was unable to calculate consumer exposure to the substances in a
manner which would allow a quantitative assessment of the safety of
that exposure. However, FDA's review noted that available data
demonstrate that long-chain perfluorocarboxylic acids and fluorotelomer
alcohols biopersist in animals and that this biopersistence also occurs
in humans. Although available migration information did not allow a
quantitative assessment of the safety of exposure to these FCSs, the
reproductive and development toxicity of the three food contact
substances could be qualitatively assessed in the context of
biopersistence and the expectation that chronic dietary exposure to
these substances would result in a systemic exposure to the substances
or their metabolic by-products at levels higher than their daily
dietary exposure (81 FR 5 at 7). There is not comparable evidence in
the administrative record for FAP 6B4815 to allow FDA to conclude that
there is no longer a reasonable certainty of no harm regarding the
subject ortho-phthalates for their intended use in the absence of
adequate exposure information. While FDA had a basis for qualitatively
assessing exposure in the action on long-chained perfluorinated
compounds, the record here does not support that approach.
For these reasons, we disagree with the objectors' assertion that
FDA committed any legal error that justifies modifying or revoking our
denial order.
H. Objection 8
The final objection argues that ``contrary to FDA's conclusion, the
available exposure information raises serious safety questions
regarding the approved food additive uses of phthalates'' (Objections
at 43). The objectors request a hearing on Objection 8 and state that
the hearing would address whether biomonitoring data from the National
Health and Nutrition Examination Survey (NHANES) ``and other available
exposure information together establish significant questions
concerning the safety of the food additive uses of phthalates that
remain approved'' (Objections at 49). The objectors state that ``FDA
did not address this issue in the order. Instead, it dismissed the
NHANES biomonitoring data provided with the Petition based on arguments
that are legally and factually unsupported, and it did not evaluate the
most recent NHANES data in conjunction with ATSDR's MRL for DEHP'' (id.
at 49).
FDA Response: A hearing will not be granted on factual issues that
are not determinative with respect to the action requested (Sec.
12.24(b)(4)). In this objection, the objectors challenge our evaluation
of the information they provided in FAP 6B4815 related to exposure.
However, our denial order made clear that our evaluation of exposure
data was not the sole reason we denied FAP 6B4815. Instead, we based
our denial on the lack of adequate support for each of the three
assertions made in FAP 6B4815: (1) that the 28 ortho-phthalates should
be treated as a class for purposes of evaluating their safety; (2) that
a purported ADI for DEHP should be applied to all 28 ortho-phthalates
that were the subject of the petition; and (3) that the EDI for the
asserted class of ortho-phthalates significantly exceeded the proposed
ADI, thus rendering the purported class unsafe for their use as food
contact substances. Our denial order explained in detail why the
petition did not adequately support any of these three assertions.
Because we found that the petition was not adequately supported, we
concluded that the petition did not contain sufficient data to support
a finding that there is no longer a reasonable certainty of no harm
from the approved uses (87 FR 31066 at 31075).
To the extent that Objection 8 is based on the premise that FDA's
evaluation of the exposure data was determinative to how we evaluated
FAP 6B4815, that premise is incorrect. Even if FDA were to have found,
as Objection 8 urges, that the data in the record show that the
exposure to certain ortho-phthalates significantly exceeds the ADI
proposed by FAP 6B4815 for the reference ortho-phthalate selected
(DEHP), such a finding would not have answered the antecedent questions
of whether the 28 ortho-phthalates should be treated as a class or
whether the proposed ADI for the selected ortho-phthalate should be
applied to the purported class of 28 ortho-phthalates. Because FDA's
conclusion regarding exposure data in the record was not determinative
with respect to the repeal action requested in FAP 6B4815, the
objectors' request for a hearing on this subject is denied.
In addition, we are denying the request for a hearing on this
objection because the data and information identified by the objectors
in support of the objection, even if established at a hearing, would
not be adequate to justify the factual determination about unsafe
exposure urged by the objectors (see Sec. 12.24(b)(3)). This is for
two distinct reasons.
First, Objection 8 claims that ``diet is a major, if not primary,
source of exposure to the phthalates at issue'' (Objections at 43). The
objection points to the 2014 report from the Chronic Hazard Advisory
Panel on Phthalates and Phthalate Alternatives (CHAP report), two
declarations that cite the CHAP report as support, and a statement in
ATSDR's 2022 toxicological profile of DEHP that ``the principal route
of human exposure to DEHP is oral,'' and that the ingestion of food
accounts for the majority of total oral exposure to DEHP (Objections at
45) (Ref. 10). The objectors state that FDA's denial order ``does not
dispute the CHAP's conclusions regarding the primacy of diet as an
exposure source for multiple approved phthalates and related
substances'' and that FDA ``must qualitatively consider'' conclusions
by CHAP or ATSDR that diet is a ``critically important source of
exposure to DEHP and other phthalates at issue'' (id. at 45). This
criticism is misplaced. Even if FDA were to reach the general
conclusion that the diet is a major source of exposure to approved
ortho-phthalates, that would not answer the question of whether or not
a specific approved food additive use is safe. Regarding the CHAP
report, it did not answer the question of whether specific food
additive uses of ortho-phthalates are safe. To the extent that this
objection asserts that FDA did not evaluate the CHAP report in
responding to FAP 6B4815, that is not the case. The denial order and
FDA's supporting memoranda discussed the CHAP report at length (Refs. 3
and 4). Regarding ATSDR's report on DEHP, this report states that the
intake approximations calculated for DEHP indicate that the general
population is exposed to DEHP at levels that are 3-4 orders of
magnitude lower than those observed to cause adverse health effects in
animal studies. Accordingly, the ATSDR report does not justify
resolution of the factual question about unsafe exposure in the
objectors' favor.
The second reason the data and information identified by the
objectors in support of the objection, even if established at a
hearing, would not be
[[Page 86304]]
adequate to justify resolution of the factual question about unsafe
exposure relates to FDA's evaluation of biomonitoring studies.
Objection 8 asserts that ``FDA irrationally dismissed the relevance of
biomonitoring data from the CDC's NHANES, which tracks metabolites of
DEHP, DCHP, DEP, and DINP, among other phthalates, in human urine''
(Objections at 45). The objectors assert that FDA's denial order was
mistaken in stating that petitioners relied on biomonitoring data
``alone'' as information presented in the petition established the
primacy of diet as a source of exposure to multiple phthalates
(Objections at 46). The objectors state that ``the NHANES biomonitoring
data must be evaluated in light of evidence that most human exposures
to these phthalates come from the diet'' (id.). Here, the objectors
make several claims that are not supported. We did not, in fact,
dismiss the potential relevance of biomonitoring evidence presented in
the petition. Rather, our denial order specifically noted that human
biomonitoring studies can be ``part of an appropriate postmarket
approach to determine dietary exposure for a substance that is already
authorized for use as a food contact substance'' (87 FR 31066 at
31074). However, we also explained that ``many factors should be
addressed to determine the suitability of any given dataset for
determining dietary exposure'' (id.). We explained that the approach of
directly comparing biomonitoring-based exposure values to a proposed
ADI for the purpose of assessing the safety of a food additive is not
scientifically appropriate (id.). Relying on biomonitoring data alone
does not differentiate the amount of exposure that results from the
diet compared to environmental and other sources (id.). Because FAP
6B4815 did not account for these limitations by addressing how the
biomonitoring data accounts for dietary exposure, we concluded that the
petition's direct comparison of biomonitoring-based exposure values to
the purported ADI was scientifically flawed. Our evaluation did not
amount to a summary dismissal. We considered the information provided
in the petition and found it lacking. The objectors' claim that we
stated that FAP 6B4815 relied on biomonitoring data ``alone'' is also
wrong. In our denial order, we discussed other evidence in FAP 6B4815
that was related to exposure (and identified shortcomings with the
petition's evaluation of that data) (id.). Thus, the record shows that
we considered all relevant exposure-related data included in the
petition.
The objectors' claims regarding the primacy of the diet and FDA's
dismissal of biomonitoring data, even if established at a hearing,
would not be sufficient to justify resolution of the factual conclusion
urged by the objectors (Sec. 12.24(b)(3)). These claims were intended
to support a conclusion that the available exposure information raises
serious safety questions regarding the approved food-additive uses of
phthalates. The information presented to support these claims do not
provide a factual basis for determining that any ortho-phthalates have
unsafe dietary exposure levels or that there are significant safety
questions regarding the dietary exposure levels because these claims do
not proffer evidence of unsafe dietary exposure levels for any ortho-
phthalates with authorized uses. These arguments do not provide a basis
for a hearing.
A separate argument that objectors put forth in Objection 8
purports to provide more direct data regarding exposure. The objectors
described a new exposure analysis and provided a supporting memorandum
(Objections at 48, n. 174) that calculated EDIs for 10 phthalates
(DEHP, BBP, DBP, DIBP, DCHP, DEP, DIDP, DINP, DMP, and DnOP) using
urinary metabolite concentrations from the most recent NHANES
biomonitoring data (collection occurred from 2015 to 2016). The
objectors state that the EDI estimate for DEHP (at the 90th and 95th
percentiles) is above the 0.10 micrograms per kilogram body weight per
day intermediate minimal risk level (MRL) for oral exposure established
for DEHP by ATSDR in 2022 (id. at 48). The objectors state that this
``indicate[s] unsafe exposure levels across the U.S. population''
(id.). As explained in our denial order and above, relying on
biomonitoring data alone to calculate an exposure estimate does not
differentiate the amount of exposure that results from the diet
compared to other sources. Neither the objectors nor the supporting
memorandum accounts for these limitations by addressing how the
biomonitoring data is representative of an estimate to dietary exposure
only. Furthermore, the MRL for DEHP cited by the objectors was
determined based on a single study that used only one dose level and
only a limited number of animals. Due to the use of a single dose and
limited animals, there is not enough supporting information to rely on
this value for the purposes of a safety assessment for DEHP or to apply
it as a value for risk assessments of the other substances cited by the
objectors.
The objectors also assert that certain studies involving mixtures
of ortho-phthalates ``underscore the need for FDA to consider the
available exposure information in response to these objections, and the
importance of cumulative effects analysis to that assessment''
(Objections at 49). The objectors state that ``EPA scientists [who]
have documented the magnitude of the cumulative effect of mixtures of
anti-androgenic ortho-phthalates, and mixtures of anti-androgenic
ortho-phthalates and other substances with similar anti-androgenic
effects. Collectively, these studies found that ortho-phthalates in
mixtures with structurally and pharmacologically related substances
induced anti-androgenic effects at doses that were orders of magnitude
lower than those associated with anti-androgenic effects of individual
phthalates'' (id. at 48). However, the objectors do not provide any
dietary exposures to the proposed related anti-androgenic substances in
the diet, nor do they identify what those related anti-androgenic
substances are. While the Howdeshell (2017) (Ref. 11) and Conley et
al., (2018 and 2021) (Refs. 8 and 12) studies demonstrate some additive
effects of mixtures of anti-androgenic substances, the Conley et al.,
(2018 and 2021) studies also report a level of exposure of these
phthalate and non-phthalate mixtures where no antiandrogenic effects
were detected. Likewise, beyond the MRL for DEHP, the objectors do not
provide a suitable safe level or a risk assessment value to compare
that cumulative dietary exposure level for the purposes of conducting a
safety assessment. The objectors do not demonstrate how determining
that anti-androgenic effects from multiple substances may be additive
would demonstrate Objection 8's assertion that the available exposure
information raises serious safety questions regarding the approved
food-additive uses of phthalates.
Separately, the objectors contend that FDA committed legal error in
evaluating the exposure information included in FAP 6B4815. The
objectors assert that FDA evaluated their petition ``as if diet were
the sole source of exposure to the approved phthalates,'' which
Objection 8 describes as being in tension with the ``among other
relevant factors'' text in section 409(c)(5) of the FD&C Act
(Objections at 46). The applicability of the ``among other relevant
factors'' text in section 409(c)(5) of the FD&C Act is a legal issue,
and a hearing will not be granted on issues of law (Sec. 12.24(b)(1)).
We note that, in determining whether a food additive is safe under
section
[[Page 86305]]
409(c)(5) of the FD&C Act, FDA is to ``consider among other relevant
factors'' the following: (1) probable consumption of the additive; (2)
cumulative effect of such additive ``in the diet of man or animals,
taking into account any chemically or pharmacologically related
substance or substances in such diet;'' and (3) safety factors
``generally recognized'' by qualified experts ``as appropriate for the
use of animal experimentation data.''
Section 409(c)(5) of the FD&C Act does not impose a ``legal
obligation'' for FDA to consider exposure from non-dietary sources in
determining safety. Rather, section 409(c)(5) of the FD&C Act makes
clear that FDA has discretion to review a number of factors to
determine whether a food additive is safe. Besides the factors
enumerated in subparagraphs (A), (B), and (C), section 409(c)(5) of the
FD&C Act gives us discretion to decide, in our scientific expertise,
whether there are other factors that are ``relevant'' to the safety of
a food additive in the context of a particular petition. Moreover, the
text of subparagraphs (A) and (B), which contemplate FDA considering
food-related uses in assessing safety, provides additional support that
it is not required for FDA to consider exposure from non-dietary
sources as a relevant factor. Specifically, subparagraph (A) states
that in determining safety, the Secretary shall consider ``the probable
consumption of the additive and of any substance formed in or on food
because of the use of the additive,'' and subparagraph (B) refers to
the diet of man or animals'' (emphasis added). Subparagraph
409(c)(5)(C) of the FD&C Act, which directs FDA to consider safety
factors that ``are generally recognized as appropriate for the use of
animal experimentation data,'' does not suggest that FDA must consider
exposure from non-dietary sources. Therefore, the objectors' argument
that non-dietary exposure must be part of the safety analysis under
section 409(c)(5) of the FD&C Act is incorrect. While the objectors
state that other federal agencies ``frequently consider background
exposures when evaluating and regulating harmful chemicals,'' we
administer the FD&C Act and not authorities that are applicable to
other Federal agencies.
V. Summary and Conclusions
After evaluating the objections, we conclude that the submission
does not provide a basis to support modifying or revoking the denial of
FAP 6B4815. Therefore, we are overruling the objections and denying the
requests for a public hearing.
VI. References
The following references marked with an asterisk (*) are on display
at the Dockets Management Staff, (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-
402-7500 and are available for viewing by interested persons between 9
a.m. and 4 p.m., Monday through Friday; they also are available
electronically at https://www.regulations.gov. References without
asterisks are not on public display at https://www.regulations.gov
because they have copyright restriction. Some may be available at the
website address, if listed. References without asterisks are available
for viewing only at the Dockets Management Staff. Although FDA verified
the website addresses in this document, please note that websites are
subject to change over time.
1. * FDA Memorandum from J. Urbelis to Administrative File for Food
Additive Petition (FAP) 6B4815, May 11, 2022.
2. * FDA, Guidance for Industry, ``Toxicological Principles for the
Safety Assessment of Food Ingredients: Redbook 2000,'' July 2007
(available at https://www.fda.gov/media/79074/download).
3. * FDA Chemistry Memorandum from R. Brinas to J. Urbelis, May 11,
2022.
4. * FDA Toxicology Memorandum from T-F. Cheng to J. Urbelis, May
11, 2022.
5. * Agency for Toxic Substances and Disease Registry (ATSDR)
``Toxicological Profile for Di(2-ethylhexyl) Phthalate (DEHP),''
January 2022.
6. * ``NTP Technical Report on the Toxicology and Carcinogenesis
Studies of Di(2-ethylhexyl) Phthalate Administered in Feed to
Sprague Dawley Rats,'' December 2021.
7. European Food Safety Authority Panel on Food Contact Materials,
Enzymes and Processing Aids, ``Update of the Risk Assessment of Di-
Butylphthalate (DBP), Butyl-Benzyl-Phthalate (BBP), Bis(2-
ethylhexyl)Phthalate (DEHP), Di-Isononylphthalate (DINP) and Di-
Isodecylphthalate (DIDP) for Use in Food Contact Materials,''
European Food Safety Authority Journal, 17(12):5838, 2019.
8. Conley, J., C.S. Lambright, N. Evans, et. al., ``A Mixture of 15
Phthalates and Pesticides Below Individual Chemical No Observed
Adverse Effects Levels (NOAELs) Produces Reproductive Tract
Malformations in the Male Rat,'' Environment International,
156:106615, 2021.
9. ** 2014 Organization for Economic Cooperation and Development
(OECD) Guidance on Grouping of Chemicals.
10. ** 2014 Chronic Hazard Advisory Panel (CHAP) on Phthalates and
Phthalate Alternatives Final Report.
11. Howdeshell, K., A.K. Hotchkiss, L.E. Gray Jr., et al.,
``Cumulative Effects of Antiandrogenic Chemical Mixtures and Their
Relevance to Human Health Risk Assessment,'' International Journal
of Hygiene and Environmental Health 220 (2Pt A):179, 2017.
12. Conley, J., C.S. Lambright, N. Evans, et. al., ``Mixed
Antiandrogenic Chemicals at Low Individual Doses Produce
Reproductive Tract Malformations in the Male Rat,'' Toxicological
Sciences 164(1):166, 2018.
Dated: October 22, 2024.
Kimberlee Trzeciak,
Deputy Commissioner for Policy, Legislation, and International Affairs.
[FR Doc. 2024-25120 Filed 10-29-24; 8:45 am]
BILLING CODE 4164-01-P