See Sierra Club v. Larson, 2 F.3d 462, 468-69 (1st Cir. 1993). Although the need for deference diminishes as issues become more law-bound and less moored to administrative expertise, see, e.g., United States v. 29 Cartons of * * * an Article of Food, 987 F.2d 33, 38 (1st Cir. 1993) (collecting cases), this case is not removed from the realm of specialized administrative knowledge. When Congress commanded the Secretary to ensure that "payment levels" were maintained, it left open the question of how that term might be defined in a manner that would best promote efficient, fair administration of two complicated social service programs.
On the other hand, if a substance is a "food," it is presumed safe and the FDA can prevent its sale only if the FDA proves by a preponderance of evidence that it is injurious to health. (21 U.S.C.A. §§ 321(f), 321(f)(1), 342(a)(1); see U.S. v. 29 Cartons of[***] an Article of Food (1st Cir. 1993) 987 F.2d 33, 35.) As a matter of interest only, we note that after the trial in this case, the United States Congress passed and the President signed into law a bill establishing a new category of substances subject to the Act, that of "dietary supplement," which includes amino acids (under additional specified conditions of use and presentation).
As for the second source, courts customarily withhold Chevron deference from agencies' litigating positions. See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988); United States v. 29 Cartons of * * * an Article of Food, 987 F.2d 33, 38 n. 6 (1st Cir. 1993); Director, OWCP v. General Dynamics Corp., 980 F.2d 74, 79 (1st Cir. 1992). We see no reason to take a different tack in this instance.
Ultimately, of course, deference depends on the persuasiveness of the agency's position. See, e.g., United States v. 29 Cartons of * * * An Article of Food, 987 F.2d 33, 38 (1st Cir. 1993). Furthermore, an administrative agency's entitlement to deference is not limited to its initial interpretation of a statute.
"Given the existence of a cogent, well-reasoned, eminently correct opinion closely on point, we embrace it." United States v. 29 Cartons, 987 F.2d 33, 37 (1st Cir. 1993). Beyond Anixter, we add only the following comment in order to address defendants' argument that Section 27A unconstitutionally deprived them of a vested property right. It is well established that a party's property right in a cause of action does not vest "until a final, unreviewable judgment has been obtained."
Pub.L. No. 103-417, 108 Stat. 4325. Prior to that time, the FDA had attempted to regulate dietary supplements under its authority to regulate food additives. See United States v. 29 Cartons of . . . an Article of Food, 987 F.2d 33, 35-36 (1st Cir. 1993). Since DSHEA's enactment, dietary supplements have remained generally regulated as a subset of foods, rather than drugs, but several statutory provisions now govern the regulation of dietary supplements specifically.
"It goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts." Id.; see also Bureau of Alcohol, Tobacco and Firearms v. Fed. Labor Relations Auth., 464 U.S. 89, 98 n. 8, 104 S.Ct. 439, 445 n. 8 (1983) (observing that "deciding what a statute means" is "the quintessential judicial function"); United States v. 29 Cartons of *** An Article of Food, 987 F.2d 33, 38 (1st Cir 1993) (same). The fact that congressional hearings have been held, congressional reports generated, and executive branch statements on the AWP issued, without follow-up legislative action, does not mandate judicial retreat from this heartland task of construing statutory language.
Mayburg v. Secretary of HHS, 740 F.2d 100, 106 (1st Cir. 1984).United States v. 29 Cartons of an Article of Food, 987 F.2d 33, 38 (1st Cir. 1993). Because the Rhode Island Supreme Court has mentioned Chevron in only one case, Pawtucket Power, 622 A.2d at 456, it is unclear that Rhode Island law requires such deference.
We certainly have never suggested that we owe any administrative agency's interpretation blind obeisance; rather, the "true measure of a court's willingness to defer to an agency's interpretation of a statute ‘depends, in the last analysis, on the persuasiveness of the interpretation, given all the attendant circumstances.’ " Unistrut Corp. v. State of Rhode Island Department of Labor and Training, 922 A.2d 93, 101 (R.I. 2007) (quoting United States v. 29 Cartons of * * * an Article of Food, 987 F.2d 33, 38 (1st Cir. 1993) ). In the instant case, we are confronted with widely divergent opinions from other jurisdictions as well as from courts within this state.
Further, "the true measure of a court's willingness to defer to an agency's interpretation of a statute 'depends, in the last analysis, on the persuasiveness of the interpretation, given all the attendant circumstances.'" Unistrut Corp., 922 A.2d at 101 (quoting United States v. 29 Cartons of * * * an Article of Food, 987 F.2d 33, 38 (1st Cir. 1993)). As this opinion, and our other decisions involving SHAB demonstrate, Justice Scalia was quite prescient when he commented that "[a]dministrative law is not for sissies * * *."