Is a Picture Worth More Than 1,000 Words: The Fourth Amendment and the FDA's Authority to Take Photographs Under the Federal Food, Drug, and Cosmetic Act

Abstract:     
The Food and Drug Administration's (FDA's) authority to take photographs during inspections has been disputed for decades, but legal analysis has been largely silent on the matter. The author argues that, where the FDA has the authority to enter, inspect, and document the conditions in an establishment, the agency holds the authority to take photographs.

The language of FDCA Section 704 provides FDA with broad inspectional authority based on a flexible standard of reasonableness. The statutory language and the case law support the conclusion that FDA may lawfully take photographs during a Section 704 inspection so long as the inspection is otherwise lawfully conducted, the FDA's procedural requirements for inspection are met, and the photography is within the normal course of the inspection.

As the saying goes, "A picture is worth 1,000 words," - not that a picture is more than 1,000 words. Under the law, inspection photography is no more intrusive than other documentation. Where FDA has the authority to enter, inspect, and document the conditions in an establishment, the agency holds the authority to take photographs. In the 21st century, photographs are a reasonable way for FDA to document conditions in regulated establishments.

Keywords: food law, fourth amendment, FDCA, Food, Drug, and Cosmetic Act

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