Judge Weighs Fight Over Dietary Guidelines

SAN FRANCISCO (CN) - The Physicians Committee for Responsible Medicine breathed new life into its lawsuit accusing the government of downplaying the risks of high cholesterol from eating eggs, even as a federal magistrate indicated she would toss it.

U.S. Magistrate Judge Laurel Beeler said at a hearing on Thursday that she was prepared to dismiss the complaint against the U.S. Department of Agriculture and the Department of Health and Human Services, but ultimately deferred ruling on the case after Physicians Committee attorney Corey Page presented his argument.

Instead, Beeler issued an order later Thursday saying Page had shifted his argument "subtly but significantly" enough to warrant additional briefing.

"The court realizes that there may ultimately be no important difference here," Beeler said in the order. "Maybe the shift to a procedural theory does not significantly change the standing analysis, but it is important to consider."

Every five years, the two government departments appoint an advisory committee to make dietary recommendations based on independent scientific research. Those recommendations are then adopted into the nation's dietary guidelines and issued to the public.

But the Physicians Committee and three member doctors claim that in 2015, the defendants adopted recommendations based on research funded by the American Egg Board — the Agriculture Department's egg promotion program — as part of a 20-year campaign by the federal government to increase egg consumption in the United States and abroad.

The advisory board concluded that cholesterol is no longer "a nutrient of concern for overconsumption," and the updated guidelines, issued in January 2016, advised the public to drop cholesterol restrictions. Past guidelines advised limiting cholesterol to 300 milligrams a day.

In their complaint and brief, the plaintiffs made a substantive claim that the government violated the Federal Advisory Committee Act by adopting the guidelines. That statute requires federal agencies to implement measures designed to curb the influence of lobbyists on recommendations issued by advisory boards.

But Page abandoned the substantive claim at oral argument on Thursday in favor of a procedural one, alleging that the government instead violated the act by failing to issue the measures it had implemented to deter lobbyists from hijacking its dietary guidelines.

"The inappropriate influence test I'm not asking you to get into it," Page told Beeler. "They have to procedurally take action somehow to say 'look, here's our policy,' and they didn't do it. You don't have to weigh the policy, you have to say they never issued it."

The government agencies had sought to dismiss the case, arguing it is too difficult for courts to weigh special-interest influence.

In her order, Beeler directed the parties to submit additional briefing on whether the court has jurisdiction to consider the procedural claim and whether the plaintiffs have standing to sue under it. The magistrate also asked that they address whether the government was required to issue the measures it put in place to limit lobbyist influence.

If a court finds that the government violated the Federal Advisory Committee Act, the dietary guidelines could be overturned, according to Page.

Hinting at the government's response, Justice Department attorney Bailey Heaps told Beeler that the act doesn't require federal agencies to issue such measures, only to implement them.

"The statute says they need to be appropriate provisions," Heaps said. "We can argue having 15 members on the committee is a provision to guard against inappropriate influence. There's no standard to determine if there are appropriate provisions."

Although Beeler was persuaded to consider Page's refashioned argument, she noted that establishing procedural standing would be difficult.

"We have to think a lot about standing," she told Page.

Page said the Physicians Committee spends a substantial amount of resources campaigning at the federal level, "so we have a procedural stake in this case."

According to the plaintiffs, the American Egg Board and its research arm, the Egg Nutrition Center, have increasingly funded pro-egg research on dietary cholesterol over the last 20 years. In 2013, the egg board funded 92 percent of studies on dietary cholesterol, up 29 percent from 1992, according to a brief opposing the government's motion to dismiss.

The Physicians Committee claims that, although it is illegal to use Egg Board money to fund research that will be incorporated into the government's dietary guidelines, the Egg Nutrition Center nominated seven individuals to the dietary guidance advisory committee, including a Tufts researcher who failed to disclose she had received funds from the Egg Board for "the sole purpose of overturning defendants' recommended limits on dietary cholesterol intake."

Page is with Evans & Page in San Francisco.

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