FDA Enforcement and the Constitution: The Validity of FDA Seizures under the Due Process and Just Compensation Clauses

Abstract

This paper explores the way in which enforcement actions by the Food and Drug Administration (FDA) interact with certain constitutional rights, and it queries whether the system does its most to protect those rights while preserving the public interest in safety. The paper is essentially an analysis of the intersection of section 304 of the Food Drug and Cosmetic Act, involving FDA seizures, with the due process and just compensation clauses of the Fifth Amendment to the U.S. Constitution. The due process section of the paper relies heavily on the Supreme Court’s decision in Ewing v. Mytinger & Casselberry. The just compensation section provides a review of select takings cases, including in particular Miller v. Horton and Jarboe-Lackey Feedlots, Inc. v. United States. At the end of each of these sections is a thought section discussing whether the law should be changed. There is also a brief analysis of the relationship of seizure law to the Fourth Amendment. The paper’s conclusion is that the current state of affairs is not a disaster but could be improved.