U.S. v. Naremco, Inc.
| Decision Date | 25 May 1977 |
| Docket Number | No. 76-1623,76-1623 |
| Parties | UNITED STATES of America, Appellant, v. NAREMCO, INC., et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James F. Ponsoldt, Atty., Dept. of Justice, Washington, D. C., for appellant; Donald I. Baker, Acting Asst. Atty. Gen., and Carl D. Lawson, Atty., Dept. of Justice, Washington, D. C., Richard A. Merrill, Chief Counsel, Robert M. Spiller, Jr., Associate Chief Counsel for Enforcement, and Donald O. Beers, Asst. Chief Counsel for Enforcement, Food and Drug Division, Dept. of Health, Education and Welfare, Rockville, Md., on brief.
Richard F. Kingham, Washington, D. C., O. J. Taylor, Taylor, Stafford & Gannaway, Springfield, Mo., for appellees.
Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, * and HEANEY, Circuit Judge.
For nine years, Naremco, Inc. and the Government have disagreed over the applicability of certain provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (Supp. V. 1975), to products containing gentian violet (methylrosaniline chloride). Naremco, 1 a Missouri corporation, has repeatedly manufactured and sold a variety of products containing gentian violet without first obtaining pre-marketing approval from the Food and Drug Administration (FDA).
Naremco has consistently contended that its products are exempt from statutory provisions requiring pre-marketing approval. The Government, with equal tenacity, has maintained that Naremco's gentian violet products, marketed as animal drugs and as additives to animal feed, may not be sold without pre-marketing FDA approval. Naremco's nonapproved interstate sales of gentian violet products have been contested by the Government in repeatedly successful seizure suits under 21 U.S.C. § 334. 2 The Government's victories in these seizure actions have been largely Pyrrhic, however. After each adverse ruling, Naremco has simply varied the composition and label of the condemned product slightly and recommenced sale without obtaining pre-marketing approval, thus necessitating yet another round of litigation. The Government's seizure approach has ultimately resulted in a paradox: despite the repeated condemnation and seizure of Naremco's individual gentian violet products, Naremco continues, with relative impunity, to market gentian violet remedies and products without obtaining pre-marketing approval.
In an effort to end this litigious cycle, the Government brought the instant suit under 21 U.S.C. § 332(a) to enjoin Naremco from the future interstate sale of gentian violet products used as animal drugs or additives to animal feed until and unless pre-marketing approval was obtained from the FDA. After an evidentiary hearing, the District Court granted the Government's request for preliminary injunctive relief as to all the products named in the complaint 3 except GV-Eleven Medicated, a drug used to treat internal fungal diseases in poultry, and GV-Eleven Mold Inhibitor, a food additive used to prevent fungal growth in poultry feed. Gentian violet is the sole active ingredient in both products. 4 On April 20, 1976, a permanent injunction was entered which incorporated the operative provisions of the preliminary injunction. The Government appeals from the memorandum order of April 20, 1976, insofar as it permits the continued marketing of GV-Eleven products and any other articles of food or drug containing gentian violet as their only functional ingredient.
Before addressing the particular application of the Federal Food, Drug, and Cosmetic Act to the idiosyncrasies of this case, we deem it appropriate to set forth briefly the tenets of judicial construction that will guide us. The Federal Food, Drug, and Cosmetic Act is a remedial statute designed for the protection of the consumer. United States v. Urbuteit, 335 U.S. 355, 358, 69 S.Ct. 112, 93 L.Ed. 61 (1948). As remedial legislation, the Act must be given a liberal construction consistent with its overriding purpose to protect the public health. United States v. Bacto-Unidisk, 394 U.S. 784, 798, 89 S.Ct. 1410, 22 L.Ed.2d 726 (1969). Judicial awareness of the purpose of the Federal Food, Drug, and Cosmetic Act should insure that the Act is treated as "a working instrument of government and not merely as a collection of English words." United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943). However, while the technicality of the Act must not deter a sensible judicial construction, the courts should not forget that under the regulatory scheme established by the Act, the FDA is the arm of government empowered to make threshold determinations as to the issue of the Act's coverage. CIBA Corporation v. Weinberger, 412 U.S. 640, 644, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973). Because Naremco has thus far evaded the application of the Act's pre-marketing clearance requirements to all of its gentian violet products, there have been no formal administrative determinations by the FDA as to whether these products are new animal drugs or food additives. Under these circumstances, a trial court would be well advised to "stay its hand, awaiting an appropriate administrative determination of the threshold question" of the Act's coverage. CIBA Corporation v. Weinberger,supra at 644, 93 S.Ct. at 2498.
The propriety of the District Court's exemption of GV-Eleven Medicated from pre-marketing approval turns upon a determination of whether or not GV-Eleven Medicated is a new animal drug. If a product is a new animal drug within the meaning of 21 U.S.C. § 321(w), it may not be sold until a new drug application has been approved. Section 321(w)(1) provides:
The term "new animal drug" means any drug intended for use for animals other than man * * * the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof.
The District Court found that GV-Eleven Medicated was not a new animal drug because it was generally recognized among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended or suggested by its labeling.
We have carefully reviewed the evidence offered to establish the general recognition among experts of the safety and effectiveness of gentian violet, the sole active ingredient in GV-Eleven Medicated. While the record contains some evidence that gentian violet is recognized by experts as safe, it lacks evidence of general expert recognition of gentian violet's effectiveness as an animal drug. There is evidence of scattered lay opinion that gentian violet is effective in treating certain fungal diseases in poultry. However, lay and expert recognition are not interchangeable under § 321(w), which specifies that the general recognition of effectiveness necessary to remove a drug from the strictures of obtaining pre-marketing approval must be that of " experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs." Moreover, the Supreme Court has read the requirement of general expert recognition of effectiveness to mean that:
(T)he hurdle of "general recognition" of effectiveness requires at least "substantial evidence" of effectiveness * * *. In the absence of any evidence of adequate and well controlled investigations supporting the efficacy of (the product), a fortiori (it) would be a "new drug" subject to the provisions of the Act. 5
Weinberger v. Hynson, Wescott & Dunning, 412 U.S. 609, 629-30, 93 S.Ct. 2469, 2483, 37 L.Ed.2d 207 (1973) (footnotes omitted).
In concluding that gentian violet was not a new animal drug, the trial court must have considered lay recognition of effectiveness equivalent to expert recognition, for no evidence was presented which showed general expert recognition of gentian violet's effectiveness or which established the existence of adequate and well controlled investigations upon which general expert recognition of effectiveness could be based. 6 In allowing lay opinion to be substituted for the expert...
To continue reading
Request your trial
-
US v. An Article of Drug Neo-Terramycin
...and its progeny, however, are directly applicable to general recognition of effectiveness of animal drugs. See United States v. Naremco, 553 F.2d 1138, 1142 n. 5 (8th Cir. 1977); Coli-trol, 518 F.2d at 746; Entrol-C, 513 F.2d at 8 21 CFR § 510.3(i) provides, in part: The newness of animal d......
-
Southeastern Minerals, Inc. v. Harris
...without interference from any governmental entity or official. However, after the Eighth Circuit's decision in United States v. Naremco, Inc., 553 F.2d 1138 (8th Cir. 1977), Herbert Friedlander, the Acting Director of the Bureau of Veterinary Medicine, on June 21, 1977, wrote to all manufac......
-
United States v. Articles of Drug
...its terms expansively in order to achieve its purposes. That tenet of judicial construction is summarized in United States v. Naremco, Inc., 553 F.2d 1138, 1141 (8 Cir.1977) as The Federal Food, Drug, and Cosmetic Act is a remedial statute designed for the protection of the consumer. United......
-
United States v. Articles of Drug
...v. Articles of Animal Drug Containing Diethylstilbestrol, 528 F.Supp. 202, 204-05 (D.Neb.1981). See also, United States v. Naremco, Inc., 553 F.2d 1138, 1141 (8th Cir.1977). With these principles in mind, the Court finds that the seized drugs are imitations of other drugs which are illegal ......