American Health Products Co., General Nutrition Center,inc., General Nutrition Corp., Melva Natural Products, Inc.,nature's Bounty, Inc., Nutrition Headquarters, Inc., Phoenixlaboratories, 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 Anddrug Administration, Defendants-appellees, 744 F.2d 912 (2d Cir. 1984)

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U.S. Court of Appeals for the Second Circuit - 744 F.2d 912 (2d Cir. 1984) Argued May 7, 1984. Decided Sept. 11, 1984

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, 574 F. Supp. 1498 (S.D.N.Y. 1983). Judgment on plaintiffs' claim was filed on November 18, 1983.

In a subsequent order, filed June 15, 1984, the district court granted the permanent injunctive relief sought by defendants' counterclaim. Judgment thereon was entered on July 26, 1984.

After considering both parties' arguments, we affirm the district court's holding that starchblockers are a drug under section 321(g) (1) (C) substantially for the reasons set forth in Judge Sofaer's thorough opinion. We note that arguments similar to those raised by plaintiffs also were rejected in a comprehensive opinion by the United States Court of Appeals for the Seventh Circuit. Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (7th Cir. 1983). Unlike Judge Sofaer, see 574 F. Supp. at 1501-07, we do not reach the issue whether dual classification is appropriate under section 321(g) (1) (C).

In view of the above, we also affirm the district court's grant of defendants' counterclaim for permanent injunctive relief.

Judgments affirmed.