National Nutritional Foods Association v. Weinberger, 439
Citation | 491 F.2d 845 |
Decision Date | 11 December 1973 |
Docket Number | No. 439,Docket 73-2430.,439 |
Parties | 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. |
Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
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.
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. (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 Procedure Act, 5 U.S.C. § 553 (1970), including requirements as to notice and public participation. Among the 2500 comments received in response to the Commissioner's invitation were comments from the two appellants herein, each of which submitted voluminous factual material and expert opinions opposing the proposed regulations. After due consideration, the Commissioner concluded that the regulations should be adopted. Accordingly, they were promulgated on July 25, 1973, to become effective October 1, 1973. 38 Fed.Reg. 20723, 20725 (19...
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National Nutritional Foods Ass'n v. Weinberger, 228
...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 went into effect. In a further opinion dated April 5, 1974, published at 376 F.Supp. 142 (S.D.N.Y.......
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...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......
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National Nutritional Foods Association v. Weinberger, 73 Civ. 3448.
...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., 1973). Defendants have now moved for summary judgment dismissing the complaint. Counsel have made extensive submissions, and the court has heard ......
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Pharmadyne Laboratories, Inc. v. Kennedy
...1021, 1023 (3d Cir. 1972); National Nutritional Foods Ass'n v. Weinberger, 366 F.Supp. 1341, 1347 (S.D.N.Y.), aff'd per curiam, 491 F.2d 845 (2d Cir. 1973). In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor becomes critica......
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§2.5 Foods for Special Dietary Uses and Food Additives: 1970-1990
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Table of Cases
...§4.2 National Nutritional Foods Ass'n v. Matthews, 418 F. Supp. 394 (1976), §2.5.1 National Nutritional Foods Association v. Weinberger, 491 F.2d 845 (1973), §2.5.1 National Nutritional Foods v. Ass'n v. Kennedy, 572 F.2d 377 (1978), §2.5.1 New Hampshire Hemp Council v. Marshall, 203 F.3d 1......