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FMALI HERB, INC. v. HECKLER

No. 82-4604.

715 F.2d 1385 (1983)

FMALI HERB, INC., Plaintiff-Appellant, v. Margaret M. HECKLER, et al., Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Decided September 15, 1983.

Attorney(s) appearing for the Case

Barry Grossman, Edward T. Hand, William F. Baxter, Nancy C. Garrison, Dept. of Justice, Washington, D.C., for defendants-appellees.

William R. Pendergrast, Hamel, Park, McCabe & Saunders, Washington, D.C., J. Bruce McCubbrey, Fitch, Even, Tabin, Flannery & Welsh, San Francisco, Cal., for plaintiff-appellant.

Before PECK, FLETCHER, and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

This case presents a question of first impression arising under section 201(s) of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(s). The issue is whether the Food and Drug Administration (FDA) has properly interpreted the statute, which provides that the safety of substances added to food may be established by experience based on common use in food prior to 1958. We conclude that, even according the deference due an administrative...

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