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Tozzi Litigation Over NTP's
CRE Advisory Board Member Jim Tozzi is suing the government over its proposed "known human carcinogen" listing of dioxin in the forthcoming 9th Report on Carcinogens ("RoC"). Along with a number of other plaintiffs, Mr. Tozzi is seeking a federal court injunction against the Department of Health and Human Services, Secretary Donna Shalala, NTP Director Ken Olden, and NIEHS Director of Toxicology, George Lucier. The other plaintiffs include two restaurants, a major restaurant association, and a medical device manufacturer that uses polyvinyl chloride ("PVC") in its operations. Mr. Tozzi's lawsuit claims that HHS and NTP disregarded their own criteria for "known human carcinogen" listings by improperly basing the dioxin listing on animal, mechanistic, and in vitro data. The agency's published criteria state that known carcinogen listings may be based only on "sufficient evidence from studies in humans". Dioxin was listed as a second tier or "reasonably anticipated" carcinogen in past editions of the RoC, and Mr. Tozzi alleges that the government's proposed upgrade is arbitrary and capricious. Briefing in the case is currently underway before the D.C. Circuit Court of Appeals, following a ruling by U.S. District Court Judge Emmet Sullivan on September 30, 2000. Judge Sullivan ruled that (i) the RoC listing was reviewable agency action, and (ii) the PVC plaintiff had standing to challenge the proposed dioxin listing, but (iii) the court was required to defer to the agency's interpretation of the criteria supporting the listing. Tozzi and the other plaintiffs are appealing the last portion of that ruling.Several of the key pleadings and legal memoranda in the case may be viewed by clicking below.
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