American Health Products Co. v. Hayes, R-K

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore OAKES, VAN GRAAFEILAND and PIERCE; PER CURIAM
Citation744 F.2d 912
PartiesAMERICAN HEALTH PRODUCTS CO., General Nutrition Center, Inc., General Nutrition Corp., Melva Natural Products, Inc., Nature's Bounty, Inc., Nutrition Headquarters, Inc., Phoenix Laboratories, Inc.,ane, Inc., Sunrise Chemical, Inc., Total Success, Inc., Plaintiffs, General Nutrition Center, Inc., General Nutrition Corp., Nutrition Headquarters, Inc., Sunrise Chemical, Inc., Plaintiffs-Appellants, v. Arthur Hull HAYES, Commissioner of Food and Drugs, Food And Drug Administration, Defendants-Appellees. ocket 84-6018.
Decision Date11 September 1984
Docket NumberR-K,No. 1100,D

Page 912

744 F.2d 912
AMERICAN HEALTH PRODUCTS CO., General Nutrition Center,
Inc., General Nutrition Corp., Melva Natural Products, Inc.,
Nature's Bounty, Inc., Nutrition Headquarters, Inc., Phoenix
Laboratories, Inc., R-Kane, Inc., Sunrise Chemical, Inc.,
Total Success, Inc., Plaintiffs,
General Nutrition Center, Inc., General Nutrition Corp.,
Nutrition Headquarters, Inc., Sunrise Chemical,
Inc., Plaintiffs-Appellants,
v.
Arthur Hull HAYES, Commissioner of Food and Drugs, Food And
Drug Administration, Defendants-Appellees.
No. 1100, Docket 84-6018.
United States Court of Appeals,
Second Circuit.
Argued May 7, 1984.
Decided Sept. 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.

Page 913

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. Sec. 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....

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6 cases
  • US v. Ten Cartons, Ener-B Nasal Gel, No. CV 88-3000 (ADS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 24, 1995
    ..."food" in the parenthetical exception to section 321(g)(1)(C) as having been intended by Congress to refer to its "common usage"), aff'd, 744 F.2d 912 (2d Moreover, Judge Ross concluded that the agency's determination regarding Ener-B is consistent with the FDA's prior actions categorizing ......
  • Association of Amer. Phys. v. U.S. Food and Drug, No. CIV.A.00-02898 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 17, 2002
    ...Mathews, 557 F.2d 325, 335 (2d Cir.1977); Am. Health Prods. Co. v. Hayes, 574 F.Supp. 1498, 1505 (S.D.N.Y.1983), aff'd on other grounds, 744 F.2d 912 (2d 19. See, e.g., United States v. Storage Spaces Designated Nos. "8" and "49", 777 F.2d 1363, 1366 (9th Cir.1985); United States v. An Arti......
  • Association of American, Phys. & SG. Inc. v. U.S. Food & Drug Ad., Civil Action 00-02898 (HHK) (D. D.C. 10/17/2002), Civil Action 00-02898 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 17, 2002
    ...557 F.2d 325, 335 (2d Cir. 1977); Am. Health Prods. Co. v. Hayes, 574 F. Supp. 1498, 1505 (S.D.N.Y. 1983), aff'd on other grounds, 744 F.2d 912 (2d Cir. 1984). 19. See, e.g., United States v. Storage Spaces Designated Nos. "8" and "49", 777 F.2d 1363, 1366 (9th Cir. 1985); United States v. ......
  • United States v. General Nutrition, Inc., No. CR-84-174E.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • May 27, 1986
    ...can be said to be used to prevent disease. See, e.g. American Health Products Co., Inc. v. Hayes, 574 F.Supp. 1498 (S.D.N.Y.1983), aff'd, 744 F.2d 912 (2d 2 The first "overt act" listed by the government in support of its conspiracy charge in Count I reads as follows: "On or about May 9, 19......
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