## Facts

- Consumers Union of United States, Inc., a consumer-advocacy organization, sought access to meetings between Food and Drug Administration (FDA) officials and the Cosmetic, Toiletry and Fragrance Association, Inc. (CTFA), a cosmetic-industry trade association.
- FDA and industry had a long history of interaction regarding cosmetic safety, labeling, and testing, including voluntary FDA programs concerning establishment registration and ingredient filing.
- CTFA developed a voluntary cosmetic ingredient review proposal and requested meetings with FDA officials to obtain agency comments and discuss the proposal.
- Two meetings occurred on April 9 and September 17, 1975, between FDA officials and CTFA representatives concerning CTFA’s ingredient review program.
- Consumers Union requested to attend these meetings; FDA denied access on the ground that they were private meetings initiated by CTFA, not advisory committee meetings.
- Consumers Union sued HEW/FDA under the Federal Advisory Committee Act (FACA), claiming the meetings were advisory committee meetings that had to be chartered and open to the public.

## Issues

1. Whether the April 9 and September 17, 1975 meetings between FDA officials and CTFA representatives constituted “advisory committee” meetings under FACA.
2. If the meetings were advisory committee meetings, whether FACA required that they be formally chartered and open to the public.

## Decision

- The court held the meetings were not “advisory committee” meetings within the meaning of FACA.
- The court granted defendants’ motion for summary judgment and denied Consumers Union’s cross-motion for summary judgment.
- Because FACA did not apply, Consumers Union had no statutory right to attend, and the agency’s decision to hold the meetings privately did not violate FACA.

## Legal Principles

- FACA’s open-meeting and chartering requirements apply only when an agency obtains advice or recommendations through a committee or similar group “established or utilized” by the agency within the statute’s meaning.
- Ordinary consultations between agencies and private stakeholders, including trade associations and consumer groups, do not become FACA advisory committees solely because they involve discussion of regulatory matters.
- Where an existing private association initiates meetings to discuss a voluntary program and the agency neither creates the group nor confers an official advisory role, the meetings may fall outside FACA.

## Conclusion

The court concluded that FDA’s closed meetings with CTFA about a voluntary cosmetic ingredient review proposal were private agency–stakeholder consultations, not advisory committee meetings under FACA, so the statute did not require chartering or public access.


Consumers Union of U.S., Inc. v. Dep’t of Health, Educ. & Welfare, 409 F. Supp. 473 (D.D.C. 1976)