United States v. Roux Laboratories, Inc.

This is an appeal from a summary judgment dismissing a complaint for forfeiture under the Food, Drug, and Cosmetic Act, 21 U.S.C. § 334 . The Government’s complaint alleges that ap-pellee’s “Roux Lash and Brow Tint” was adulterated when introduced into and while in interstate commerce because it contains color additives, composed of silver sulfate, silver nitrate, and pyrogal-lol, that were “unsafe” because they have not been approved, exempted, or provisionally listed as required by statute [ 21 U.S.C. § 376 (a)]. Appellee denied the material allegations of the com plaint, and asserted in affirmative defense that: (a) the chemicals in issue are not “additives”, but are “diluents”; and, (b) the forfeiture action was in violation of the order, judgment and injunction entered in Toilet Goods Ass’n., Inc. v. Gardner (S.D.N.Y.1968) 278 F.Supp. 786 .

The district court granted appellee’s motion for summary judgment of dismissal. We reverse and remand the case to the district court for trial on the merits.

Discussion

The Government may seize, pursuant to 21 U.S.C. § 334 (a), any article of cosmetic that is adulterated when introduced into or while in interstate commerce. Section…