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CAROLINA BROWN, INC. v. WEINBERGER

Civ. A. No. 71-894.

365 F.Supp. 310 (1973)

CAROLINA BROWN, INC. and the Brown Pharmaceutical Company, Inc., Plaintiffs, v. Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, and Alexander M. Schmidt, M.D., Commissioner of Food and Drugs, Defendants.

United States District Court, D. South Carolina, Greenville Division.

September 26, 1973.

Attorney(s) appearing for the Case

George F. Townes and Sol E. Abrams of Abrams, Bowen & Townes, Greenville, S. C., for plaintiffs.

John K. Grisso, U. S. Atty., D. of South Carolina, Columbia, S. C., and James D. McCoy, III, Asst. U. S. Atty., Greenville, S. C., for defendants.

ORDER

HEMPHILL, District Judge.

Defendants have moved to dismiss this action on the basis that the Food and Drug Administration has primary jurisdiction to determine whether a drug is a "new drug", as the Supreme Court held in Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973). Plaintiffs do not contest the fact that such primary jurisdiction lies with Food and Drug Administration...

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