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UNITED STATES v. DEPILATRON EPILATOR, ETC.

No. 78 CIV 4917 (LBS).

473 F.Supp. 913 (1979)

UNITED STATES of America, Plaintiff, v. Undetermined quantities of an article of device, labeled in part, DEPILATRON EPILATOR MODEL NO. DP-206 UNIVERSAL TECHNOLOGY, INC., WOODBRIDGE, CONN. or Depilatron, Inc., Woodbridge, Conn. Model No. DP-206 and including as accompanying labeling undetermined quantities of brochures and leaflets entitled: (brochure) depilatron What You Should Know About the Depilatron Method of Hair Removal and (leaflet) Harvey Glass, M.D. December 29, 1975, I have studied the Depilatron method of hair removal from both a theoretical and practical point of view, Defendant.

United States District Court, S. D. New York.

April 18, 1979.

Attorney(s) appearing for the Case

Robert B. Fiske, Jr., U. S. Atty., New York City, Leona Sharpe, Asst. U. S. Atty., of counsel, Beverly I. Chernaik, Asst. Chief Counsel for Enforcement, Food and Drug Div., Dept. of H.E.W., Rockville, Mo., of counsel, for plaintiff.

Friend, Perles, Dorfman & Kleefeld, New York City, Jerold W. Dorfman, New York City, of counsel, for defendant.

OPINION

SAND, District Judge.

This action is an in rem proceeding pursuant to the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 334(a)(2), for forfeiture and condemnation of a depilatory device. Claimant has moved to dismiss the complaint on the grounds that (1) 21 U.S.C. § 334(a)(2) "is unconstitutional on its face as a violation of the commerce clause of the United States Constitution" and (2) "that plaintiff is collaterally or equitably...

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