Judge Rosemary Pooler
Triclosan and triclocarbon"drugs" under the Federal Food, Drug and Cosmetics Actare common ingredients in over-the-counter antiseptic antimicrobial soap. District court granted the Food and Drug Administration (FDA) summary judgment in the Natural Resources Defense Council’s (NRDC) bid to compel FDA’s finalization of its regulation of triclosan and triclocarbon by using a final monograph regulating topical antiseptic antimicrobial products. Second circuit vacated and remanded, finding that NRDC presented sufficient evidence of Article III standing to withstand judgment as to triclosan’s regulation, but not as to the regulation of triclocarbon. With respect to triclosan, standing may be based on exposure to a potentially dangerous product. NRDC’s evidence showed triclosan to be potentially dangerous, and that at least one of its membersveterinary technician Owenswas frequently exposed to soap containing triclosan. However, as to triclocarbon, NRDC’s reliance on evidence that triclocarbon’s proliferation may contribute to the development of antibiotic-resistant bacteria was insufficient to support the injury-in-fact requirement for Article III standing.