Natick Paperboard Corp. v. Weinberger, Civ. A. No. 73-2988-C.

• Decision Date: 11 December 1973
• Docket Number: Civ. A. No. 73-2988-C.
• Citation: 367 F. Supp. 885
• Parties: NATICK PAPERBOARD CORP. and Crown Paperboard Co., Inc. v. Caspar WEINBERGER, Secretary of the Department of Health, Education and Welfare, and Alexander Schmidt, Commissioner of the Federal Food and Drug Administration.
• Court: U.S. District Court — District of Massachusetts

367 F. Supp. 885

NATICK PAPERBOARD CORP. and Crown Paperboard Co., Inc. v. Caspar WEINBERGER, Secretary of the Department of Health, Education and Welfare and Alexander Schmidt, Commissioner of the Federal Food and Drug Administration.

Civ. A. No. 73-2988-C.

United States District Court, D. Massachusetts.

December 11, 1973.

Endicott Peabody, Boston, Mass., Robert F. deGiacomo, Washington, D. C., for plaintiffs.

James N. Gabriel, U. S. Atty., William Brown, Asst. U. S. Atty., Boston, Mass., Charles J. Raubicheck, Food and Drug Administration, U. S. Dept. of Health, Education and Welfare, Rockville, Md., for defendants.

OPINION

CAFFREY, Chief Judge.

This is a civil action for injunctive relief brought by Natick Paperboard Corp. (hereinafter Natick), a corporation organized under the laws of Massachusetts, and by Crown Paperboard Co., Inc. (hereinafter Crown), a corporation organized under the laws of Pennsylvania, Respondents are Caspar Weinberger. Secretary of the Department of Health, Education and Welfare, and Alexander Schmidt, Commissioner of the Federal Food and Drug Administration (FDA).

The matter came before the Court most recently on plaintiffs' application for a preliminary injunction and on defendants' motion to dismiss the prayer for declaratory judgment and in the alternative for summary judgment.

Both plaintiffs are engaged in the business, inter alia, of manufacturing paper products from recycled waste paper. Included among the products manufactured by plaintiffs is a paper foodpackaging material sold by plaintiffs in interstate commerce for use in the packaging of foods. It appears that the packaging materials contain a certain amount of polychlorinated biphenyls (hereinafter PCB's). It is the position of defendants that PCB's are toxic substances which above a certain level should not be found in foods for human consumption. The Commissioner of Food and Drugs has issued a regulation pursuant to authority vested in him by 21 U.S.C.A. §§ 342(a), 346, 348, and 371 and 21 C.F.R. § 2.120, and has issued a notice of proposed rules limiting the amount of PCB's that may be found in paper food-packaging material to 10 parts per million (hereinafter 10 PPM). It is defendants' theory that PCB's are toxic substances which may be and are found in food products so wrapped because of migration of the PCB's from what the defendants contend is contaminated paper packaging material into foods so packaged.

After the promulgation of its regulation limiting the PCB level to 10 PPM, 38 Fed.Reg. 18102, objections to the regulation were filed by representatives of the paperboard industry whereupon the FDA pursuant to 21 U.S.C.A. § 371(e) stayed the effective date of the regulation pending a public hearing on the industry objections.

At about the same time, however, the FDA notified the industry that it would seize all paper food-packaging materials shipped in interstate commerce if those materials had a quantity of PCB's contained therein in excess of the permitted tolerance of 10 PPM. The instant complaint was filed in this Court on September 4, 1973 in quest of both injunctive relief against the FDA's threatened seizures and also in quest of declaratory relief to the effect that the FDA lacked legal authority to direct the seizure of paper food-packaging materials because plaintiffs contend that the food-packaging materials did not constitute "food" within the meaning of 21 U.S.C.A. § 334 which contains the statutory basis for seizure of contaminated "foods."

Plaintiffs' application for a temporary restraining order was heard by another judge of this Court and denied by him after a hearing on the grounds that plaintiffs had failed to prove either irreparable harm or a probability of success on the merits. Thereafter, defendants filed a motion to dismiss the complaint for injunctive relief for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the F.R.Civ.P. which this Court denied on November 26 after a hearing. Meanwhile, on November 19 defendants filed a motion to dismiss the complaint for declaratory relief premised on the grounds that the complaint failed to state a claim upon which relief can be granted and in the alternative for summary judgment.

It is now well settled law in this Circuit that in order to obtain a preliminary injunction the plaintiff moving therefor must show a substantial likelihood of success on the merits and a probability of immediate and irreparable harm if the injunction is not granted. In passing on these two issues a court is to consider also whether the failure to issue an injunction will cause more harm to plaintiff than the granting of an injunction would cause to defendants. Automatic Radio Manufacturing Co. v. Ford Motor Co., 390 F.2d 113, 115-116 (1st Cir. 1968); Celebrity, Inc. v. Trina, Inc., 264 F.2d 956, 958 (1st Cir. 1959); Cuneo Press of New England v. Watson, 293 F.Supp. 112, 115-116 (D.Mass. 1968).

Plaintiffs' application for a preliminary injunction founders on the second of these two grounds because it is clear that these two manufacturing corporations allege as the irreparable harm said to be consequent to the denial of an injunction the fact that the sale of paper food-packaging material amount to 7½% of Natick's gross sales and 12% of Crown's gross sales. It is further alleged that seizure of packaging materials exceeding the 10 PPM tolerance will at least temporarily eliminate these portions of plaintiffs' gross sales. Plaintiffs further allege that failure to supply their customers because of the threatened seizure will to an unspecified extent damage the good will of their businesses and that adverse publicity from the seizure will scare away customers who otherwise would purchase food-packaging materials from plaintiffs. Assuming all of the foregoing to be true, I find and rule that economic injury to this limited extent does not constitute irreparable harm since it is well settled law that something other than monetary damages recoverable in a court of law must be shown in order to establish irreparable harm. Accordingly, without re-examining the issue of probability of success which has already been ruled on adversely to plaintiffs by another member of this Court, I rule that plaintiffs have failed to demonstrate that the denial of injunctive relief herein will visit irreparable harm upon them. Accordingly, assuming this Court to have jurisdiction only for purposes of the ruling on this part of the case, the application for preliminary injunction is denied.

A more fundamental issue exists as to whether or not this Court has subject matter jurisdiction to entertain a suit seeking an injunction against the threatened seizures.

The basis for the proposed seizure of these materials lies in 21 U.S.C.A. § 334(a)(1) which in pertinent part provides:

"Any article of food, drug, device or cosmetic that is adulterated . . . shall be liable to be

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