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U.S. v. UNDETERMINED QUANTITIES OF BOTTLES

No. 91-4197.

22 F.3d 235 (1994)

UNITED STATES of America, Plaintiff-Appellant, v. UNDETERMINED QUANTITIES OF BOTTLES OF AN ARTICLE OF VETERINARY DRUG Labeled in Part: "Pets Smellfree" or "Fresh Pet," and Those Containing Chlortetracycline, Defendant-Appellee, Pets Smellfree, Inc., Claimant-Appellee.

United States Court of Appeals, Tenth Circuit.

March 31, 1994.

Attorney(s) appearing for the Case

Deborah S. Smolover, U.S. Dept. of Justice, Civ. Div., Appellate Staff, Washington, DC (Stuart M. Gerson, Asst. Atty. Gen., David J. Jordan, U.S. Atty., Douglas N. Letter, Appellate Litigation Counsel, Leon F. Szeptycki, Atty., Civ. Div., U.S. Dept. of Justice, Washington, DC; and Margaret Jane Porter, Chief Counsel, Denise M. Zavagno, Associate Chief Counsel, Food and Drug Admin., Rockville, MD, were on the brief), for plaintiff-appellant.

George K. Fadel, Bountiful, Utah, for defendant-claimant-appellee.

Before EBEL and HOLLOWAY, Circuit Judges, and COOK, District Judge.

HOLLOWAY, Circuit Judge.

This case requires us to decide whether a compound sold as an internal pet "deodorant," whose only active ingredient is the antibiotic chlortetracycline, is a "drug" as defined by the Federal Food, Drug, and Cosmetic Act ("FDCA" or the Act), 21 U.S.C. §§ 301, et seq. The United States brought this appeal from a grant of summary judgment to the defendant-claimant-appellee, Pets Smellfree, Inc. ("PSF").

I

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