United States v. SEVEN CARTONS, MORE OR LESS, ETC., 17525.
| Decision Date | 15 April 1970 |
| Docket Number | No. 17525.,17525. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. SEVEN CARTONS, MORE OR LESS, Each Containing 12 Bags, Labeled in Part (Carton): "FERRO-LAC SWINE FORMULA CONCENTRATE," etc., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
O. J. Taylor, Springfield, Mo., Richard E. Quinn, Peoria, Ill., Neale, Newman, Bradshaw & Freeman, Springfield, Mo., Cassidy, Cassidy, Quinn & Lindholm, Peoria, Ill., for appellant.
Frank J. Violanti, U. S. Atty., Springfield, Ill., John C. Young, Dept. of Health, Education & Welfare, Washington, D. C., Max J. Lipkin, Peoria, Ill., Richard E. Eagleton, U. S. Atty., William W. Goodrich, Asst. Gen. Counsel, of counsel, for appellee.
Before KNOCH, Senior Circuit Judge, FAIRCHILD, Circuit Judge, and GRANT, District Judge.1
The United States seized seven cartons of Ferro-Lac, alleging in a libel that the Ferro-Lac was unlawfully shipped by reason of (1) its being a new drug, (2) its containing unsafe food additives, and (3) its being misbranded. Claimant, Naremco, Inc., concedes that a finding in favor of the government on any one of the three charges is sufficient to result in condemnation of the product.
The district court, on motion for summary judgment, decided in favor of the government on both (1) and (2). Judge Morgan's opinion is reported, United States v. 7 Cartons, More or Less, Etc. (S.D.Ill., 1968), 293 F.Supp. 660. It is apparent that with respect to both (1) and (2) the critical question goes to the general recognition of the material among a described class of experts as meeting a specified standard. With respect to (1) the question is whether the material is so recognized as safe and effective for use under the conditions suggested in the label. With respect to (2) the question is whether the material is so recognized as having been adequately shown through scientific procedures to be safe under the conditions of the intended use. In neither respect need the government prove that the material is, in fact, unsafe.
The affidavits in support of and opposition to the government's motion for summary judgment are adequately described in Judge Morgan's opinion. We adopt Judge Morgan's opinion with respect to (2), the unsafe food additive issue
Claimant suggests with respect to (1) that Judge Morgan was weighing the assertions of the respective affiants. It is unnecessary to express an opinion with respect to (1) in view of our approval of...
To continue reading
Request your trial
-
US v. An Article of Drug Neo-Terramycin
...exception; ..." United States v. 7 Cartons ... Ferro-Lac, 293 F.Supp. 660, 662-63 (S.D.Ill.1968), modified on other grounds, 424 F.2d 1364 (7th Cir. 1970) (quoting Webster's Dictionary); United States v. An Article of Drug ... Bentex Ulcerine, 469 F.2d 875, 877 (5th Cir. 1972) (per curiam).......
-
Southeastern Minerals, Inc. v. Harris
.... . . "Ferro-Lac Swine Formula Concentrate (Medicated)," 293 F.Supp. 660 (S.D. Ill. 1968), aff'd in part and vacated in part, 424 F.2d 1364 (7th Cir. 1970). See also United States v. Dan-Mar Enterprises, Inc., No. C79-08G (N.D. Ga. Sept. 21, 1978), appeal dismissed, No. 78-3666 (5th Cir. Ja......
-
United States v. X-Otag Plus Tablets
...Other courts have interpreted "general" by its plain meaning. In United States v. 7 Cartons, 293 F.Supp. 660 (S.D.Ill.1968), aff'd 7 Cir., 424 F.2d 1364, the district court, quoting Webster's Dictionary, defined "generally" to mean, "In general; extensively, though no universally; most freq......
-
Premo Pharmaceutical Laboratories, Inc. v. U.S., 863
...1387 (10th Cir. 1979); United States v. Seven Cartons, 293 F.Supp. 660, 662-63 (S.D.Ill.1968), affd. in part and vacated in part, 424 F.2d 1364 (7th Cir. 1970). As the Supreme Court stated in Hynson, supra, 412 U.S. at 632, 93 S.Ct. at 2484: "We accordingly have concluded that a drug can be......