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NATIONAL NUTRITIONAL FOODS ASS'N v. MATHEWS

No. 561, Docket 76-6135.

557 F.2d 325 (1977)

The NATIONAL NUTRITIONAL FOODS ASSOCIATION and Solgar, Co., Inc., Plaintiffs-Appellants, v. F. David MATHEWS, Secretary of Health, Education and Welfare and Alexander M. Schmidt, Commissioner of Food and Drugs, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided June 7, 1977.

Attorney(s) appearing for the Case

Milton A. Bass, New York City (Bass, Ullman & Lustigman and Jacob Laufer, New York City, on the brief), for plaintiffs-appellants.

Naomi Reice Buchwald, Asst. U.S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U.S. Atty., Samuel J. Wilson, Asst. U.S. Atty., S. D. N. Y., New York City, and Stephen H. McNamara, Office of Gen. Counsel, Dept. of Health, Education and Welfare, Washington, D.C., on the brief), for defendants-appellees.

Before ANDERSON and MESKILL, Circuit Judges, and MARKEY, Chief Judge, U.S. Court of Customs and Patent Appeals.

Robert P. ANDERSON, Circuit Judge:

Plaintiffs-appellants, producers and vendors of vitamin preparations, appeal the dismissal of their action seeking declaratory and injunctive relief against regulations promulgated by the Food and Drug Administration (FDA) which classified preparations of Vitamins A and D in excess of 10,000 IU (international units) per dosage unit and 400 IU per dosage unit, respectively, as "drugs" under § 201(g)(1) of the Federal Food, Drug...

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