American Health Products Co., v. Hayes

Full title: AMERICAN HEALTH PRODUCTS CO., GENERAL NUTRITION CENTER, INC., GENERAL…

Court: United States Court of Appeals, Second Circuit

Date published: Sep 11, 1984

744 F.2d 912 (2d Cir. 1984)

Opinion

No. 1100, Docket 84-6018.

Argued May 7, 1984.

Decided September 11, 1984.

Milton A. Bass, New York City (Robert Ullman, Lawrence H. Roth, Bass, Ullman Lustigman, New York City, of counsel), for plaintiffs-appellants.

Janis P. Farrell, Asst. U.S. Atty., S.D. N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., Peter C. Salerno, Asst. U.S. Atty., S.D.N.Y., New York City, J. Patrick Glynn, Director, Don O. Burley, Atty., Office of Consumer Litigation, Civil Div., Dept. of Justice, Washington, D.C.; Thomas Scarlett, Chief Counsel, Food and Drug Admin., Stephen D. Terman, Associate Chief Counsel for Enforcement, Food and Drug Admin., Washington, D.C., of counsel), for defendants-appellees.

Appeal from the United States District Court for the District of New York.

Before OAKES, VAN GRAAFEILAND and PIERCE, Circuit Judges.

PER CURIAM:

Plaintiffs brought this action seeking a declaratory judgment that "starchblockers" are a "food" rather than a "drug" for purposes of 21 U.S.C. § 321(g)(1)(C). Defendants counterclaimed for permanent injunctive relief. In a published memorandum opinion and order, filed November 14, 1983, the district court denied plaintiffs' claim, holding that starchblockers are a drug under section 321(g)(1)(C). American Health Products Co. v. Hayes, 574 F.Supp. 1498 (S.D.N.Y. 1983). Judgment on plaintiffs' claim was filed on November 18, 1983.

In a subsequent order, filed June 15, 1984, the district court granted the permanent injunctive relief sought by defendants' counterclaim. Judgment thereon was entered on July 26, 1984.

After considering both parties' arguments, we affirm the district court's holding that starchblockers are a drug under section 321(g)(1)(C) substantially for the reasons set forth in Judge Sofaer's thorough opinion. We note that arguments similar to those raised by plaintiffs also were rejected in a comprehensive opinion by the United States Court of Appeals for the Seventh Circuit. Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (7th Cir. 1983). Unlike Judge Sofaer, see 574 F.Supp. at 1501-07, we do not reach the issue whether dual classification is appropriate under section 321(g)(1)(C).

In view of the above, we also affirm the district court's grant of defendants' counterclaim for permanent injunctive relief.

Judgments affirmed.