McILWAIN v. HAYES

No. 81-2204.

690 F.2d 1041 (1982)

Wende McILWAIN, et al., Appellants, v. Arthur Hull HAYES, Jr., Commissioner, Food and Drug Administration, et al.

United States Court of Appeals, District of Columbia Circuit.

Decided October 19, 1982.


Attorney(s) appearing for the Case

Katherine A. Meyer with whom William B. Schultz, Washington, D.C., was on the brief for appellants.

Stephen F. Ross, Atty., Dept. of Justice, Washington, D.C., for appellee, Hayes, Com'r, Food and Drug Admin., John J. Powers, III and Mark C. Del Bianco, Attys., Dept. of Justice, Washington, D.C. and Donald O. Beers, Associate Chief Counsel, Food and Drug Admin., Rockville, Md., were on the brief, for appellee, Hayes, Com'r, Food and Drug Admin. Robert B. Nicholson, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellee, Hayes, Com'r, Food and Drug Admin.

Robert M. Sussman, with whom Ellen J. Flannery, Washington, D.C., was on the brief, for appellee, Cosmetic, Toiletry and Fragrance Ass'n.

Thomas A. Guidoboni with whom Daniel R. Thompson and Mark W. Smith, Washington, D.C., were on the brief, for appellee, Certified Color Manufacturers' Ass'n.

Before MIKVA and BORK, Circuit Judges and JAMESON, United States Senior District Judge for the District of Montana.


Opinion for the Court filed by Circuit Judge BORK.

Dissenting opinion filed by Circuit Judge MIKVA.

BORK, Circuit Judge:

Prior to 1960, color additives used in foods, drugs, and cosmetics could be marketed lawfully unless the Food and Drug Administration ("FDA") tested them and found them unsafe. Because of the FDA's limited resources, Congress believed this testing process likely to be unduly prolonged. In 1960, therefore, the Color Additive Amendments...

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