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NATIONAL ETHICAL PHARMACEUTICAL ASS'N v. WEINBERGER

Civ. A. No. 73-560.

365 F.Supp. 735 (1973)

The NATIONAL ETHICAL PHARMACEUTICAL ASSOCIATION and Pharmaceutical Associates, Inc., Plaintiffs, v. Casper W. WEINBERGER, as Secretary of Health, Education, and Welfare of the United States of America, and Alexander M. Schmidt, M.D., as Acting Commissioner of the Food and Drug Administration, Defendants.

United States District Court, D. South Carolina, Greenville Division.

September 27, 1973.

Attorney(s) appearing for the Case

George F. Townes, and Sol E. Abrams, of Abrams, Bowen & Townes, Greenville, S.C., for plaintiffs in both actions.

John K. Grisso, U.S. Atty., for the District of South Carolina, Columbia, S. C., and James D. McCoy, III, Asst. U.S. Atty., Greenville, S.C., for defendant in each case.

ORDER

HEMPHILL, District Judge.

Defendants have moved to dismiss the complaint on the grounds that the Food and Drug Administration has primary jurisdiction to determine whether a drug is a "new drug", as the Supreme Court held in Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973).1 Plaintiffs do not contest the fact that such primary jurisdiction lies...

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