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# SCOTUS Narrows Agency Deference: Attorney
- URL: https://www.fdaweb.com/scotus-narrows-agency-deference-attorney/
- Published: 2019-08-27T12:00:00.000Z
- Updated: 2026-09-15T01:46:31.000Z
- Author: David McFarland
- Tags: FDA Policy/General, #legacy-id-D5144862

Attorney **Anne Walsh** (Hyman, Phelps & McNamara) says a recent Supreme Court decision “significantly cabined the scope and application” of what is known as the *Auer* deference, which requires courts to defer to FDA’s interpretation of its own regulations if they are ambiguous. Writing in her firm’s *FDA Law Blog*, Walsh [says](http://www.fdalawblog.net/2019/08/deference-to-agency-deference/?ref=fdaweb.com) that under the revised framework, courts must first pressure test whether a challenged regulation is genuinely ambiguous, exhausting tools of construction, and if so, courts then must make an independent inquiry of the regulation to determine whether it is entitled to *Auer* deference.

She lays out the step-wise analysis the court said should be followed, and notes that although the high court decision came down less than two months ago, it already has been cited by litigants at least 16 times.

“It will be interesting whether the number of challenges to FDA’s interpretations increases as companies are more optimistic about their chances of having a court freshly review rather than defer to FDA,” Walsh concludes.