The Court of Appeals has denied the appeal of Alliance for the Family Foundation of the Philippines Inc. to stop the Food and Drug Administration from recertifying 51 contraceptives as safe and non-abortifacient on the ground of technicality, particularly for failure to exhaust administrative remedies.
In a resolution, the CA’s Former Special Seventeenth Division through Associate Justice Nina G. Antonio Valenzuela ruled that AFFPI failed to appeal FDA’s rulings before the Office of the President as required by Section 32 of Republic Act 9711 otherwise known as the “Food and Drug Administration Act of 200” and Section 9 of Executive Order No. 247 or Prescribing Guidelines and Establishing A Regulatory Framework for the Prospecting Biological and Genetic Resources, their By-Products and Derivatives, for Scientific and Commercial Purposes, and For Other Purposes.
The appellate court explained that RA 9711 and EO 247 mandate that the orders, rulings, and decisions of FDA are appealable to the Secretary of Health and the latter’s decisions may be appealed to the Office of the President.
The CA said that in line with a decision of the Supreme Court if the Secretary of Health is a respondent in the case the issue should be appealed directly to the Office of the President.
“We deny the petitioner’s motion for reconsideration for failure to exhaust administrative remedies. The petitioner should have filed the appeal with the Office of the President to assail the 51 resolutions of the FDA,” the appellate court ruled.
“Applying the Supreme Court pronouncement in the Garin case to this case, since the Executive Secretary is not a party in this case, the remedy to question the 51 FDA resolutions is to file the appeal with the Office of the President, and not via petition for review with this Court,” the CA said.
In resolutions issued in December last year, the FDA re-certified as safe and non-abortifacient a list of 51 contraceptives for us in the implementation of the Reproductive Health Law.
Included in the list are implants like Implanon and Implanon NXT; injectables like Protec, intrauterine devices Mirena and Securit-T; and pills or oral contraceptives like Estrelle, Daphne, Yasmin, and Nordette, among others.
The FDA resolutions, in effect, lifted the temporary restraining order (TRO) issued by the SC on the use of the contraceptives for failure of the Department of Health (DOH) to observe due process.
In May last year, the SC declared final its decision that stopped the distribution of two contraceptive implants, Implanon and Implanon NXT, as it reiterated that the TRO would be deemed lifted if the two implants are found “not abortifacient” by the FDA.
The high court also clarified that there is no TRO against the implementation of the RH Law or on all contraceptive products, except on two contraceptive implants.
It emphasized that the lifting of the TRO on the two contraceptive implants depends on the action of the FDA, not on the SC.