ALMAY, INC. v. CALIFANO

No. 76-1718.

569 F.2d 674 (1977)

ALMAY, INC., et al., Appellants, v. Joseph A. CALIFANO, Jr., Secretary Department of Health, Education and Welfare, et al.

United States Court of Appeals, District of Columbia Circuit.

Decided December 21, 1977.

As Amended February 10, 1978.

Rehearing Denied February 10, 1978.


Attorney(s) appearing for the Case

William R. Pendergast, Washington, D. C., with whom Wayne H. Matelski, Washington, D. C., was on the brief, for appellants. Raymond D. McMurray, Washington, D. C., also entered an appearance for appellants.

Patricia J. Kenney, Atty., Consumer Affairs Section, Dept. of Justice, and Thomas Scarlett, Atty., Food & Drug Administration, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Richard A. Merrill, Chief Counsel, Food & Drug Administration, Charles R. McConachie, Acting Chief, Consumer Affairs Section, Dept. of Justice, and Margaret A. Cotter, Asst. Chief, Consumer Affairs Section, Dept. of Justice, Washington, D. C., were on the brief, for appellees.

Before ROBINSON and MacKINNON, Circuit Judges, and MARKEY, Chief Judge, United States Court of Customs and Patent Appeals.


Opinion for the court filed by MARKEY, Chief Judge.

MARKEY, Chief Judge, United States Court of Customs and Patent Appeals:

Appeal from a judgment of the district court denying plaintiffs' motion for judgment that Regulation 700.100 of the Food and Drug Administration (FDA) is arbitrary and capricious and not in accordance with law and granting FDA's motion for summary judgment. We reverse.

BACKGROUND

On February 25, 1974, appellee Food and...

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