Buticaps, Inc. v. United States, 13993.
Decision Date | 30 January 1958 |
Docket Number | No. 13993.,13993. |
Citation | 252 F.2d 634,102 US App. DC 253 |
Parties | BUTICAPS, INC., Etc., Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Eugene Gressman, Washington, D. C., with whom Mr. Max M. Kampelman, Washington, D. C., was on the brief, for appellant.
Mr. E. Tillman Stirling, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.
Before PRETTYMAN, WILBUR K. MILLER and BASTIAN, Circuit Judges.
The libel in this case was filed to condemn certain articles of drug (a claimed skin conditioner) in accordance with the Federal Food, Drug and Cosmetic Act.1 It was claimed that the articles were misbranded within the meaning of said Act in that: (1) as alleged in paragraph 3 of the libel a leaflet entitled "Buticaps" enclosed in each package, and a booklet entitled "here's how * to promote * to sell * to profit with Buticaps" contained statements which were false and misleading; and (2) as alleged in paragraph 4 of the libel the aforementioned articles were further misbranded in that the designations of certain vitamins and proteins appearing on the package labels were false and misleading.
Thereafter, the libel was amended by adding paragraph 3(a) to allege that the name "Buticaps" on the package labels, leaflet and booklet represents and implies that the articles will beautify the skin of the user, which is false and misleading since the articles will not beautify the skin of the user.
After answer by libelee admitting the allegations in paragraphs 3 and 4 of the libel but denying the allegations in paragraph 3(a) as to the use of the word "Buticaps,"2 the Government filed motion for judgment on the pleadings. This motion was not opposed but, in the answer thereto, libelee claimant urged: "If this Motion is granted, claimant's pleading with regard to the name `Buticaps' must be taken as true."
The District Court filed a memorandum announcing that it would grant the motion for judgment on the pleadings but would exercise its discretion in not ordering the articles destroyed, as it had a right to do,3 and would release the seized articles for relabeling. The court's memorandum contained the following language:
Thereupon, on February 19, 1957, the court ordered that judgment on the pleadings be entered in favor of plaintiff libelant.
On February 28, 1957, libelee moved the court for an order directing that the condemned articles be delivered to libelee and requesting that the court specify, pursuant to the judgment on the pleadings, that the statute was found to have been violated in the following manner and only in the following manner:
Libelee asked that the court "further specify that the seized articles must now be brought into compliance with the Federal Food, Drug and Cosmetic Act * * * by appropriate relabeling but that, pursuant to the aforesaid judgment, there has been no judicial determination in this action that the name `Buticaps' does not comply with the statute, which name need, therefore, not be changed under the judgment entered heretofore in this action."
The Government's reply to the motion stated that the position of the Department of...
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United States v. Diapulse Manufacturing Corporation
...Drug Corp., 357 F.2d 713 (10th Cir.), cert. denied, 385 U.S. 899, 87 S.Ct. 203, 17 L.Ed.2d 131 (1966); Buticaps, Inc. v. United States, 102 U.S. App.D.C. 253, 252 F.2d 634 (1958); Research Laboratories, Inc. v. United States, 167 F.2d 410 (9th Cir.), cert. denied, 335 U.S. 843, 69 S.Ct. 65,......
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U.S. v. an Article of Device Diapulse
...obtaining release of the article under bond. * * *."5 The cases relied on by claimant are not to the contrary. In Buticaps, Inc. v. United States, 252 F.2d 634 (D.C.Cir.1958), the court directed the district court to resolve a relabeling dispute that arose when the FDA would not approve the......
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United States v. Lit Drug Company
...are guaranteed a jury trial if any contempt proceedings are brought by the government. The facts in Buticaps, Inc. v. United States, 102 U.S.App.D.C. 253, 252 F.2d 634 (D.D.C.1958), upon which defendants rely for this point, are obviously inapposite. The government there sought to by-pass a......
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United States v. AN ARTICLE OF FOOD, ETC., CIV-81-206-D.
...should consider evidence offered by the parties even though it may go beyond the administrative record. See Buticaps, Inc. v. United States, 102 U.S.App.D.C. 253, 252 F.2d 634 (1958), in which the Court, without mentioning any post-decree administrative determination as to the proposed rela......