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DIETARY SUPPLEMENTAL COALITION, INC. v. SULLIVAN

No. 91-36013.

978 F.2d 560 (1992)

DIETARY SUPPLEMENTAL COALITION, INC.; the Health Haus, Inc., Plaintiffs-Appellants, v. Louis W. SULLIVAN, M.D.; David A. Kessler, Commissioner of Food and Drug Administration, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Decided November 5, 1992.

Attorney(s) appearing for the Case

I. Scott Bass, Piper & Marbury, New York City, for plaintiffs-appellants.

Heidi A. Garland, U.S. Dept. of Justice, Civ. Div., Jeffrey B. Chasnow, Office of Consumer Litigation, Washington, D.C., for defendants-appellees.

Before: BEEZER, NOONAN, and TROTT, Circuit Judges.

BEEZER, Circuit Judge:

We consider whether the Food and Drug Administration's classification of dietary supplement Co-enzyme Q10 ("CoQ10") is an issue ripe for judicial review. The district court dismissed plaintiff's action for declaratory judgment on the grounds that 1) the issue raised was not purely legal; 2) the challenged action was not final; and 3) the plaintiffs had not exhausted their administrative remedies, 796 F.Supp. 441

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