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« Fecal Microbiota Transplantation: FDA Announces Limited Enforcement Discretion | Main | Getting to the Bottom of the Bottomley Case? »

July 23, 2013


Jim O'Reilly

Kurt, I think "apodictically" belongs in a spelling bee or a Mensa competition. Doug's outgoing law clerk probably smiled as he/she slipped it into the opinion. But I'm glad of the timing as I'll now have time to rewrite the "discretion" portion of the enforcement chapter in the new 4th edition of West's Food & Drug Administration treatise. This looms large as a hit against the deliberate desuetude (take that, pedants!) of FDA in the face of statutory language. The Heckler discretion angle failed, making FDA more vulnerable to challengers in future cases of inactivity...an interesting twist indeed. -- Prof. Jim O'Reilly

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