Outlining the Legal Arguments Against FDA’s Proposed Rule Regulating LDTs

January 29, 2024By Jeffrey N. Gibbs & Steven J. Gonzalez

In a new publication in the Washington Legal Foundation’s (WLF) Legal Backgrounder, we argue that FDA’s recent proposed rule regulating Laboratory Developed Tests (LDTs) is vulnerable to legal challenge, once finalized. FDA’s proposed rule has every hallmark of a case subject to the “major questions doctrine,” according to which agency action must be support by clear congressional authorization.  FDA points to a nearly 50-year-old statute, the Medical Device Amendments (MDA), as the source of its supposed authority to regulate LDTs as medical devices—authority which it apparently chose to not enforce until now. But, as we detail in the WLF publication: “the MDA supplies no such clear [congressional authorization]. Instead its text and structure affirmatively undermine the Proposed Rule’s core claims.

This is to say nothing of the Administrative Procedure Act (APA) challenges the final rule may be vulnerable to, including whether the Agency manages to meet its obligations to fully respond to the more than 6,000 comments it received on the proposed rule by the breakneck April timeline the Agency is pursuing for publication of the final rule.

FDA’s proposed rule, and the industry fervor it has sparked, may supply Congress with a renewed sense of urgency and purpose to pass legislation that expressly addresses how LDTs should be regulated—industry groups have, for example, proposed legislation that would modernize the CLIA regulations that currently govern laboratories. In the absence of new legislation, litigation over the rule is virtually inevitable.