United States v. DEPILATRON EPILATOR, ETC., No. 78 CIV 4917 (LBS).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation473 F. Supp. 913
Docket NumberNo. 78 CIV 4917 (LBS).
PartiesUNITED STATES of America, Plaintiff, v. Undetermined quantities of an article of device, labeled in part, DEPILATRON EPILATOR MODEL NO. DP-206 UNIVERSAL TECHNOLOGY, INC., WOODBRIDGE, CONN. or Depilatron, Inc., Woodbridge, Conn. Model No. DP-206 and including as accompanying labeling undetermined quantities of brochures and leaflets entitled: (brochure) depilatron What You Should Know About the Depilatron Method of Hair Removal and (leaflet) Harvey Glass, M.D. December 29, 1975, I have studied the Depilatron method of hair removal from both a theoretical and practical point of view, Defendant.
Decision Date18 April 1979

473 F. Supp. 913

UNITED STATES of America, Plaintiff,
v.
Undetermined quantities of an article of device, labeled in part, DEPILATRON EPILATOR MODEL NO.
DP-206 UNIVERSAL TECHNOLOGY, INC., WOODBRIDGE, CONN. or Depilatron, Inc., Woodbridge, Conn. Model No. DP-206 and including as accompanying labeling undetermined quantities of brochures and leaflets entitled: (brochure) depilatron What You Should Know About the Depilatron Method of Hair Removal and (leaflet) Harvey Glass, M.D. December 29, 1975, I have studied the Depilatron method of hair removal from both a theoretical and practical point of view, Defendant.

No. 78 CIV 4917 (LBS).

United States District Court, S. D. New York.

April 18, 1979.


473 F. Supp. 914

Robert B. Fiske, Jr., U. S. Atty., New York City, Leona Sharpe, Asst. U. S. Atty., of counsel, Beverly I. Chernaik, Asst. Chief Counsel for Enforcement, Food and Drug Div., Dept. of H.E.W., Rockville, Mo., of counsel, for plaintiff.

Friend, Perles, Dorfman & Kleefeld, New York City, Jerold W. Dorfman, New York City, of counsel, for defendant.

OPINION

SAND, District Judge.

This action is an in rem proceeding pursuant to the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 334(a)(2), for forfeiture and condemnation of a depilatory device. Claimant has moved to dismiss the complaint on the grounds that (1) 21 U.S.C. § 334(a)(2) "is unconstitutional on its face as a violation of the commerce clause of the United States Constitution" and (2) "that plaintiff is collaterally or equitably estopped from asserting this claim on the basis of an action by the State of California wherein the same issues as raised herein were conclusively resolved in favor of claimant after a full trial on the merits." For the reasons hereinafter set forth, the motion is denied.

I. The Commerce Clause

Section 334(a) of Title 21 of the United States Code provides for the seizure of, inter alia, adulterated or misbranded devices. Prior to 1976, it was a requirement of such seizures that the device in question have been introduced into interstate commerce. Subsection 334(a) was amended in 1976, however, so as to include adulterated or misbranded devices in the class of articles which are "liable to be proceeded against at any time on libel of information" without regard to interstate commerce. 21 U.S.C. § 334(a)(2)(D) (1976).

Claimant concedes that "Congress may regulate not only interstate commerce, but also those wholly intrastate activities which it concludes have an affect sic upon interstate commerce." Claimant's contention is, rather, that where Congress seeks to regulate intrastate activities, "a proper nexus to interstate commerce must be made by Congress in order to justify the departure from the Commerce Clause" (Claimant's Memo. at 4, 5), and that Congress has failed to make the required findings.

The legislative history of the 1976 amendment contains no express consideration of the impact of the intrastate sale and distribution of medical devices on interstate commerce. It was, however, the clear intent of Congress

to authorize the seizure of devices which are distributed wholly in intrastate commerce. This provision will be applicable to all devices and will assist enforcement by doing away with the cumbersome and time consuming task of establishing interstate shipment. This provision will be particularly useful against quack devices.

S.Rep.No. 94-33, 94th Cong.1st Sess. 14, reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 1070, 1083. Congress also expressly compared the Food and Drug Administration's extensive authority over prescription drugs with its "limited authority" over medical devices, and stated its intention "that the FDA has the proper authority to regulate the development of medical devices so that Americans are not put at risk from the use of unsafe and ineffective

473 F. Supp. 915
medical devices." Id. at 1071. Congress further noted
a device which does not perform
...

To continue reading

Request your trial
2 practice notes
  • U.S. v. Two Units, More or Less, of an Article or Device, Consisting of a Power Unit and a Chair, No. 93-16083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 14, 1994
    ...medical device found within the United States. 21 U.S.C. Sec. 334(a)(2)(D); see also United States v. Depilatron Epilator, Etc., 473 F.Supp. 913 (S.D.N.Y.1979). Congress amended the Act because it found that defective medical devices pose significant risks to the health and safety of the pu......
  • Clark v. INDUSTRY AND LOCAL 338 PENSION, No. 83 Civ. 9298 (LFM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 6, 1984
    ...decision whether to appeal, or of the prosecution of the administrative hearing. See, e.g., United States v. Depilatron Epilator etc., 473 F.Supp. 913 (S.D.N.Y. 1979). Accordingly, defendant's motion is denied in all respects. So ordered. --------Notes: 1 The failure to join plaintiff could......
2 cases
  • U.S. v. Two Units, More or Less, of an Article or Device, Consisting of a Power Unit and a Chair, No. 93-16083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 14, 1994
    ...medical device found within the United States. 21 U.S.C. Sec. 334(a)(2)(D); see also United States v. Depilatron Epilator, Etc., 473 F.Supp. 913 (S.D.N.Y.1979). Congress amended the Act because it found that defective medical devices pose significant risks to the health and safety of the pu......
  • Clark v. INDUSTRY AND LOCAL 338 PENSION, No. 83 Civ. 9298 (LFM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 6, 1984
    ...decision whether to appeal, or of the prosecution of the administrative hearing. See, e.g., United States v. Depilatron Epilator etc., 473 F.Supp. 913 (S.D.N.Y. 1979). Accordingly, defendant's motion is denied in all respects. So ordered. --------Notes: 1 The failure to join plaintiff could......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT