National Nutritional Foods Association v. Weinberger, No. 439

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPER CURIAM
Citation491 F.2d 845
PartiesThe NATIONAL NUTRITIONAL FOODS ASSOCIATION and Solgar Co., Inc., Plaintiffs-Appellants, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, and Alexander M. Schmidt, Commissioner of Food and Drugs, Defendants-Appellees.
Decision Date11 December 1973
Docket NumberNo. 439,Docket 73-2430.

491 F.2d 845 (1973)

The NATIONAL NUTRITIONAL FOODS ASSOCIATION and Solgar Co., Inc., Plaintiffs-Appellants,
v.
Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, and Alexander M. Schmidt, Commissioner of Food and Drugs, Defendants-Appellees.

No. 439, Docket 73-2430.

United States Court of Appeals, Second Circuit.

Argued October 19, 1973.

Decided December 11, 1973.


Milton A. Bass, New York City (Bass & Ullman, New York City, on the brief), for plaintiffs-appellants.

Naomi L. Reice, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and John W. Nields, Jr., Asst. U. S. Atty., on the brief), for defendants-appellees.

Before MEDINA, LUMBARD and TIMBERS, Circuit Judges.

PER CURIAM:

The sole issue on this appeal from an order entered September 25, 1973 in the Southern District of New York by Marvin E. Frankel, District Judge, which denied plaintiffs' motion for a preliminary injunction to enjoin regulations of the Food and Drug Administration concerning Vitamins A and D from becoming effective, is whether, under the well established standards in this Circuit applicable to the extraordinary remedy of a preliminary injunction, the district court abused its discretion in denying it. We affirm.

Appellants are the National Nutritional Foods Association, a trade association of manufacturers, wholesalers and retailers of vitamins and dietary supplements, and Solgar, Co., Inc., a manufacturer, distributor and seller of vitamin supplements. Appellees are the Secretary of HEW and the Commissioner of Food and Drugs.

On December 19, 1972, the Commissioner proposed, by publishing in the Federal Register, certain regulations of the Food and Drug Administration requiring that preparations of Vitamin A and Vitamin D in excess of 10,000 I.U.

491 F.2d 846
(international units) per dosage unit and 400 I.U. per dosage unit, respectively, be restricted to prescription sale and that such vitamins be labelled accordingly. 37 Fed.Reg. 26618 (1972), as amended, 38 Fed.Reg. 799 (1973). The regulations were proposed to implement the "efficient enforcement" of Sections 502 (a), (f) and (j) and 503(b) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 352(a), (f) and (j) and 353(b) (1970), as authorized by 21 U.S.C. § 371 (a) (1970), and pursuant to powers delegated to the Commissioner by 21 C.F.R. § 2.120(a) (1) (1973)

Consideration of the proposed regulations followed standard rule making procedure prescribed by the Administrative...

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13 practice notes
  • National Nutritional Foods Ass'n v. Food and Drug Administration, Nos. 1189-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 24, 1975
    ...See National Nutritional Foods Ass'n v. Weinberger, 366 F.Supp. 1341, 1343-1344 (S.D.N.Y.) (denial of temporary injunction), aff'd, 491 F.2d 845 (2 Cir. 1973), 376 F.Supp. 142 (S.D.N.Y.1974) (dismissal of complaint), appeal pending. But here the provision stands as an integral part of a reg......
  • National Nutritional Foods Association v. Weinberger, No. 73 Civ. 3448.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 5, 1974
    ...a preliminary injunction was denied on September 25, 1973. National Nutritional Foods Ass'n v. Weinberger, D.C., 366 F.Supp. 1341, aff'd 491 F.2d 845 (2d Cir., Defendants have now moved for summary judgment dismissing the complaint. Counsel have made extensive submissions, and the court has......
  • National Nutritional Foods Ass'n v. Weinberger, No. 228
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 3, 1975
    ...1973 Judge Frankel denied a motion for preliminary injunctive relief in an opinion at 366 F.Supp. 1341, (S.D.N.Y.1973), which we affirmed, 491 F.2d 845 (2d Cir. 1973). On October 1, 1973, the regulations Page 694 went into effect. In a further opinion dated April 5, 1974, published at 376 F......
  • National Nutritional Foods Ass'n v. Mathews, No. 561
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 7, 1977
    ...court. We affirmed the district court's denial of preliminary injunctive relief in National Nutritional Foods Association v. Weinberger, 491 F.2d 845 (2d Cir. 1973), aff'g 366 F.Supp. 1341 (S.D.N.Y.1973). The regulations sought to be declared invalid, therefore, have been in effect since Oc......
  • Request a trial to view additional results
13 cases
  • National Nutritional Foods Ass'n v. Food and Drug Administration, Nos. 1189-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 24, 1975
    ...See National Nutritional Foods Ass'n v. Weinberger, 366 F.Supp. 1341, 1343-1344 (S.D.N.Y.) (denial of temporary injunction), aff'd, 491 F.2d 845 (2 Cir. 1973), 376 F.Supp. 142 (S.D.N.Y.1974) (dismissal of complaint), appeal pending. But here the provision stands as an integral part of a reg......
  • National Nutritional Foods Association v. Weinberger, No. 73 Civ. 3448.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 5, 1974
    ...a preliminary injunction was denied on September 25, 1973. National Nutritional Foods Ass'n v. Weinberger, D.C., 366 F.Supp. 1341, aff'd 491 F.2d 845 (2d Cir., Defendants have now moved for summary judgment dismissing the complaint. Counsel have made extensive submissions, and the court has......
  • National Nutritional Foods Ass'n v. Weinberger, No. 228
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 3, 1975
    ...1973 Judge Frankel denied a motion for preliminary injunctive relief in an opinion at 366 F.Supp. 1341, (S.D.N.Y.1973), which we affirmed, 491 F.2d 845 (2d Cir. 1973). On October 1, 1973, the regulations Page 694 went into effect. In a further opinion dated April 5, 1974, published at 376 F......
  • National Nutritional Foods Ass'n v. Mathews, No. 561
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 7, 1977
    ...court. We affirmed the district court's denial of preliminary injunctive relief in National Nutritional Foods Association v. Weinberger, 491 F.2d 845 (2d Cir. 1973), aff'g 366 F.Supp. 1341 (S.D.N.Y.1973). The regulations sought to be declared invalid, therefore, have been in effect since Oc......
  • Request a trial to view additional results

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