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UNITED STATES v. AN ARTICLE . . .CONSISTING OF 216

July 30, 1968

UNITED STATES of America, Libelant,
v.
An ARTICLE . . . CONSISTING OF 216 individually CARTONED BOTTLES, MORE OR LESS, of an Article Labeled in part: SUDDEN CHANGE, etc. Hazel Bishop, Inc., now known as, Bishop Industries, Inc., Claimant


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

OPINION AND ORDER

WEINSTEIN, District Judge.

 Sudden Change is a lotion advertised to the public as providing a "Face Lift Without Surgery." Its chief ingredient is bovine albumin. Allowed to dry on the skin, it leaves a film which (1) masks imperfections, making the skin look smoother and (2) acts mechanically to smooth and firm the skin by tightening the surface. Both effects are temporary. There is apparently no absorption by, or changes in, skin tissue resulting from its applications; it washes off.

 The case turns on whether the government is correct in its contention that Sudden Change is, within the meaning of the Federal Food, Drug, and Cosmetic Act, "a drug," "intended to affect the structure * * * of the body of man." 21 U.S.C. § 321(g)(1). Because we find that the statutory definition does not include cosmetics of this kind, a summary judgment of dismissal must be granted.

 PROCEEDINGS

 This civil in rem seizure action was instituted in May of 1964 in the United States District Court for the Southern District of Florida. Pursuant to Section 334 of the Federal Food, Drug, and Cosmetic Act, the United States filed a Libel of Information against cartons of Sudden Change manufactured by the claimant, Hazel Bishop, Inc., now know as Bishop, Industries, Inc. The article and labels and leaflets pertaining to it were seized. Claimant intervened and answered. On motion of the claimant, the action was removed to this Court some four years ago, but the articles seized remained in the possession of the United States Marshal for the Southern District of Florida.

 The libel alleges that Sudden Change, having been shipped in interstate commerce, is:

 (1) a "drug" within the meaning of 21 U.S.C. § 321(g)(3) [redesignated as 21 U.S.C. § 321(g)(1)(C) by Pub.L. No. 89-74, § 9(b) (1964), 79 Stat. 227 (1965)];

 (2) a "new drug" within the meaning of 21 U.S.C. § 321(p), and hence shipped in violation of 21 U.S.C. § 355(a) since concededly no new drug application pursuant to 21 U.S.C. § 355(b) was filed or effective with respect to it; and

 (3) a "misbranded drug"

 
(a) within the meaning of 21 U.S.C. § 352(a) in that its labeling contains false and misleading statements with respect to its effectiveness in eliminating facial wrinkles and giving a face lift without surgery; and
 
(b) within the meaning of 21 U.S.C. § 352(e)(1)(A)(ii) in that the label fails to bear the name of each active ingredient.

 The answer admits that the article and its accompanying labeling were shipped in interstate commerce; that it was within the jurisdiction of the United States District Court for the Southern District of Florida where the libel was filed; and that it has a "temporary cosmetic effect on wrinkles." All other allegations are denied.

 JURISDICTION OVER THE SUBJECT MATTER

 A preliminary question is presented by claimant's suggestion that this Court lacks jurisdiction of the res - and thereby of the case - since the articles seized have remained in the Southern District of Florida. The statute is silent on the subject of removing seized goods. Section 334(f)(1) of title 21 of the United States Code provides only that in the case of removal for trial:

 
"The clerk of the court from which removal is made shall promptly transmit to the court in which the case is to be tried all records in the case necessary in order that such court may exercise jurisdiction."

 It has apparently been the general practice not to transfer the seized articles to the trial court. Developments in the Law - The Federal Food, Drug and Cosmetic Act, 67 Harv.L.Rev. 632, 709 (1954). See also Kleinfeld & Dickerman, Removal and Consolidation in Condemnation Proceedings, 2 Food Drug Cosmetic L.J. 197, 206 (1947). Nevertheless, no case has been found where a transferee court held it lacked jurisdiction because the goods remained in the district where they had been seized. Fettig Canning Co. v. Steckler, 188 F.2d 715 (7th Cir.), cert. denied, 341 U.S. 951, 71 S. Ct. 1019, 95 L. Ed. 1373 (1951), is not in point since that case involved a seizure based on adulteration rather than misbranding. By the terms of section 334 the former class of cases is not removable.

 As the courts have recognized, an action such as this, commenced by seizure under the Federal Food, Drug, and Cosmetic Act, is not a true in rem action even though subsection (b) of section 334 of title 21 of the United States Code provides that "the procedure in [seizure] cases * * * shall conform, as nearly as may be, to the procedure in admiralty." In 1966, Rule 1 of the Federal Rules of Civil Procedure was amended to "abolish the distinction between civil actions and suits in admiralty." Advisory Committee on Admiralty Rules of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Even prior to 1966, however, the courts had restricted the applicability of this phrase to the initial seizure. Once the seizure was complete, the courts held that the action was transformed into an ordinary action at law. See, e.g., Four Hundred and Forty-Three Cans of Frozen Egg Product v. United States, 226 U.S. 172, 183, 33 S. Ct. 50, 53, 57 L. Ed. 174 (1912) ("We do not think it was intended to liken the proceedings to those in admiralty beyond the seizure of the property by process in rem, then giving the case the character of a law action"); United States v. 216 Bottles * * * Sudden Change, 36 F.R.D. 695, 698 (E.D.N.Y.1965) (question as to permissible scope of interrogatories in the instant case; court refused to limit inquiry to article seized pointing out that "[this] proceeding is not an in rem action in the traditional and admiralty sense of the phrase, after the initial seizure").

 To hold that the presence of the res is a jurisdictional necessity would be to disregard the principle that "[the] character of the remedy sought should be determinative" in delineating the boundary between transitory and in rem actions. 1 Moore, Federal Practice para. 0.142[2-1]. For all practical purposes, both parties having appeared, this is an action for a declaratory judgment to define Sudden Change as a drug. Although a judgment of condemnation purports to affect only the article actually seized, the findings in a seizure case - as in the usual civil action - have been said to be res judicata in a later injunction action brought against the same claimant. United States v. Nysco Laboratories, Inc., 318 F.2d 817 (2d Cir. 1963).

 Resort to admiralty and in rem fictions serves only to obscure substantive policies of statutes the courts are called upon to interpret. Since adoption of the Federal Rules of Civil Procedure thirty years ago, a major theme in American practice has been the elimination of procedural distinctions based upon the nature of a cause of action. Particularly in view of the 1966 integration of admiralty and civil rules, procedure in admiralty and other in rem cases should be the same as in cases in law and equity unless a strong policy or statute prevents this uniformity of treatment. Cf. Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968) (right to interlocutory appeal depends upon statutory characterization of proceeding as one in admiralty).

 We hold that we have jurisdiction of this action. The fact that the seized goods have never been in New York is not significant in this case.

 STATUTORY DEFINITIONS

 Subchapter V of the Federal Food, Drug and Cosmetic Act deals with drugs. Subchapter VI governs cosmetics.

 Drugs are defined as:

 
"(1) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (3) articles (other than food) intended to affect the structure of any function of the body of man or other animals; and (4) articles intended for use as a component of any article specified in clause (1), (2), or (3) of this paragraph; but does not include devices or their components, parts, or accessories." 21 U.S.C. § 321(g)(1).

 Cosmetics are defined as:

 
"(1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such ...

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