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CHANEY v. HECKLER

No. 82-2321.

718 F.2d 1174 (1983)

Larry Leon CHANEY et al., Appellants, v. Margaret M. HECKLER, as Secretary of Health and Human Services.

United States Court of Appeals, District of Columbia Circuit.

Decided October 14, 1983.

Rehearing Denied January 17, 1984.

Attorney(s) appearing for the Case

Stephen M. Kristovich, Washington, D.C., with whom David E. Kendall, Washington, D.C., Joel Berger, and Anthony G. Amsterdam, New York City, were on the brief, for appellants.

Margaret G. Halpern, Atty., Dept. of Justice, Washington, D.C., with whom Robert B. Nicholson, Atty., Dept. of Justice, Washington, D.C., Thomas Scarlett, Chief Counsel, Food and Drug Admin., Washington, D.C., and Arthur N. Levine, Rockville, Md., Deputy Chief Counsel, Food and Drug Admin., were on the brief, for appellee.

Before WRIGHT and SCALIA, Circuit Judges, and WEIGEL, Senior District Judge.

Rehearing En Banc Denied January 17, 1984.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge SCALIA.

J. SKELLY WRIGHT, Circuit Judge:

In the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. (1976 & Supp. V 1981), Congress has required the Secretary of Health and Human Services or her delegate, the Commissioner of the Food and Drug Administration (FDA),

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