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AMERICAN HEALTH PRODUCTS CO. v. HAYES

No. 1100, Docket 84-6018.

744 F.2d 912 (1984)

AMERICAN HEALTH PRODUCTS CO., General Nutrition Center, Inc., General Nutrition Corp., Melva Natural Products, Inc., Nature's Bounty, Inc., Nutrition Headquarters, Inc., Phoenix Laboratories, Inc., R-Kane, Inc., Sunrise Chemical, Inc., Total Success, Inc., Plaintiffs, General Nutrition Center, Inc., General Nutrition Corp., Nutrition Headquarters, Inc., Sunrise Chemical, Inc., Plaintiffs-Appellants, v. Arthur Hull HAYES, Commissioner of Food and Drugs, Food And Drug Administration, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided September 11, 1984.

Attorney(s) appearing for the Case

Milton A. Bass, New York City (Robert Ullman, Lawrence H. Roth, Bass, Ullman & Lustigman, New York City, of counsel), for plaintiffs-appellants.

Janis P. Farrell, Asst. U.S. Atty., S.D. N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., Peter C. Salerno, Asst. U.S. Atty., S.D.N.Y., New York City, J. Patrick Glynn, Director, Don O. Burley, Atty., Office of Consumer Litigation, Civil Div., Dept. of Justice, Washington, D.C.; Thomas Scarlett, Chief Counsel, Food and Drug Admin., Stephen D. Terman, Associate Chief Counsel for Enforcement, Food and Drug Admin., Washington, D.C., of counsel), for defendants-appellees.

Before OAKES, VAN GRAAFEILAND and PIERCE, Circuit Judges.

PER CURIAM:

Plaintiffs brought this action seeking a declaratory judgment that "starchblockers" are a "food" rather than a "drug" for purposes of 21 U.S.C. § 321(g)(1)(C). Defendants counterclaimed for permanent injunctive relief. In a published memorandum opinion and order, filed November 14, 1983, the district court denied plaintiffs' claim, holding that starchblockers are a drug under section 321(g)(1)(C). American Health Products Co. v. Hayes,

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