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APTER v. DEPT. OF HEALTH & HUMAN SERVICES

No. 22-40802.

80 F.4th 579 (2023)

Robert L. APTER; Mary Talley Bowden; and Paul E. Marik, Plaintiffs-Appellants, v. DEPARTMENT OF HEALTH & HUMAN SERVICES; Xavier Becerra, in his official capacity as Secretary of Health and Human Services; Food & Drug Administration; Robert M. Califf, in his official capacity as Commissioner of Food and Drugs, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

FILED September 1, 2023.

Attorney(s) appearing for the Case

Jared Kelson , R. Trent McCotter , Boyden Gray, P.L.L.C., Washington, DC, for Plaintiffs-Appellants.

Ashley Cheung Honold , U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Oliver McDonald , U.S. Department of Justice, Consumer Protection Branch, Washington, DC, Daniel Bentele Hahs Tenny, Esq. , U.S. Department of Justice, Civil Division, Washington, DC, for Defendants-Appellees.

Alan Dumoff , Attorney, Law Office of Alan Dumoff, Gaithersburg, MD, for Amicus Curiae Front Line Covid-19 Critical Care Alliance.

Andrew Layton Schlafly , Far Hills, NJ, for Amicus Curiae Association of American Physicians & Surgeons.

David Anthony Dalia , New Orleans, LA, for Amicus Curiae America's Frontline Doctors.

Before Clement, Elrod, and Willett, Circuit Judges.

"You are not a horse."

Or so the Food and Drug Administration ("FDA") alerted millions of Americans via social media, midway through the COVID-19 pandemic. The agency had discerned that some people were treating their symptoms using the animal version of a drug called ivermectin. FDA decided to target that...

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