The opinion of the court was delivered by: WADDY
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp.]
Upon consideration of defendants' motion for summary judgment and plaintiff's cross motion for summary judgment, the memoranda of points and authorities in support thereof and in opposition thereto, and it appearing to the Court, for the reasons set forth in the accompanying Memorandum Opinion, that defendants are entitled to judgment as a matter of law, it is by the Court this 29th day of October, 1974,
ADJUDGED, ORDERED and DECREED that defendants' motion for summary judgment be, and the same hereby is, granted, and it is further
ADJUDGED, ORDERED and DECREED that plaintiff's motion for summary judgment be, and the same hereby is, denied, and it is further
ADJUDGED, ORDERED and DECREED that judgment be, and the same hereby is, entered for defendants.
Joseph C. Waddy, United States District Judge.
Plaintiff, a District of Columbia non-profit corporation, brings this action for declaratory and injunctive relief against the Food and Drug Administration (FDA) and Alexander Schmidt, the Commissioner of Food and Drugs. Plaintiff alleges that the FDA has promulgated a regulation regarding the misbranding of food, 21 C.F.R. § 1.8(e), which is contrary to section 403(c) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343(c). Plaintiff asks the Court to declare the regulation null and void and to issue a mandatory injunction requiring the agency to revoke the offending regulation and to cease its enforcement. The case is now before the Court on the parties' cross-motions for summary judgment. Both sides having filed virtually identical statements of material facts as to which there is no genuine issue, the case is ripe for disposition on the pending motions.
Section 403(c) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343(c) provides:
A food shall be deemed to be misbranded . . .
(c) If it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word "imitation" and immediately thereafter, the name of the food imitated.
The difficulty in enforcing this provision arises out of the uncertain meaning to be accorded the term "imitation". The term is not defined by either the Act or the ...