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Tuesday, January 28, 2020 9:35:30 PM
As Knoepfler observed, one reason the judges’ decisions may have diverged is a decision handed down by the U.S. Supreme Court last June, about three weeks after Judge Ungaro’s ruling. That decision, in a case titled Kisor v. Wilkie, narrowed the circumstances in which courts must defer to a federal agency’s interpretation of its own rules.
If I am not mistaken, Congress was working on changing the rule by stating that agencies cannot enforce interpretations of it's own ambiguous rules, but must strictly rely on the wording of the rule itself. This was done before USRM's case.
Here, the law was in USRM's favor, but the FDA published an interpretation of the law directly attacking stem cell companies. That interpretation was used as the basis of the Florida ruling, but not in California.
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