Food and Drug Law Commons^™

Reforming The Ncaa Drug-Testing Program To Withstand State Constitutional Scrutiny: An Analysis And Proposal, Thomas P. Simon

University of Michigan Journal of Law Reform

Shortly after year-round testing went into effect, the California Court of Appeal held that the NCAA's original drug testing program violated a student-athlete's right of privacy as protected by the California Constitution. This Note examines the impact of that decision and attempts to design a program that will withstand state constitutional scrutiny. Part I describes the current NCAA drug-testing program. Part II looks at the fourth amendment argument against drug testing of student-athletes. Part III assesses the viability of a federal constitutional attack on NCAA testing, while Part IV discusses a state constitutional challenge. Finally, Part V proposes reform of …

Narrowing The Scope Of Civil Drug Forfeiture: Section 881, Substantial Connection And The Eighth Amendment, James B. Speta

Michigan Law Review

This Note offers two justifications for narrowing the scope of section 881 forfeiture. Part I argues that courts should apply the substantial connection test to section 881 forfeitures. This Part analyzes the statute using the traditional tools of statutory interpretation. While the text of the statute seems to support the broadest possible interpretation, the legislative history and context of adoption suggest that the substantial connection test is consistent with Congressional intent. In amending section 881, subsequent Congresses have favored application of the substantial connection test. Consistent with this narrower reading, present strategy in the "war on drugs" focuses stiff penalties …

A U.S. Perspective On The Ec Hormones Directive, Holly Hammonds

Michigan Journal of International Law

On December 31, 1985, the European Community ["EC"] adopted the "Council Directive Prohibiting the Use in Livestock Farming of Certain Substances Having a Hormonal Action" ("the Directive"). The directive, originally scheduled to take effect on January 1, 1988, prohibits the use of hormones, natural and synthetic, in livestock production and the sale of meat treated with hormones in the EC market. The United States believes that the directive violates the requirements of the Agreement on Technical Barriers to Trade ("Standards Code" or "Code").

The Hormone Conflict Between The Eec And The United States Within The Context Of Gatt, Werner P. Meng

Michigan Journal of International Law

For many years, consumer organizations within the European Community have demanded the prohibition of natural and synthetic hormones from use in animal fodder. Since the level of hormone use by breeders varies among Member States, demands for a hormone prohibition have also differed in intensity from State to State. After lengthy negotiations beset with legal difficulties, a general, community-wide prohibition became reality at the beginning of 1989. The price of this policy has been trade difficulties with the United States which, up to the present time,' have resulted in trade sanctions and economic losses on both sides. Since both parties …

The Ec Hormone Ban Dispute And The Application Of The Dispute Settlement Provisions Of The Standards Code, Allen Dick

Michigan Journal of International Law

As the concept of a unified European market becomes more of a reality as we approach 1992, talk of a "Fortress Europe" has heightened sensitivity on trade issues among officials of the United States and the European Community ("EC"). The EC's plan to ban the sale of meat treated with growth hormones within the Member-States has presented a trade issue disconcerting to both sides. This brewing tempest has raised many interesting legal issues involving the dispute settlement provisions set out in the Agreement on Technical Barriers to Trade ("Standards Code"). This note examines why the process failed to resolve, and …

Liquor Price Affirmation Statutes And The Dormant Commerce Clause, Ward A. Greenberg

Michigan Law Review

Part I of this Note examines the current state of the law in the liquor affirmation area. Part II argues that the twenty-first amendment may not be invoked to justify the extraterritorial impact of these statutes. The amendment does not preempt the commerce clause in the liquor area. While it gives the states free rein over liquor internally, it provides no basis for any extraterritorial projection of liquor price regulation. Part III considers the commerce clause analysis of Brown-Forman and argues that any interstate effects of these statutes will cause them to violate the commerce clause. This section argues that …

The Application Of A Due Diligence Requirement To Market Share Theory In Des Litigation, Thomas C. Willcox

University of Michigan Journal of Law Reform

This Note argues that courts should impose a due diligence requirement on plaintiffs as a prerequisite to the use of market share theory. Part I examines traditional products liability theories along with alternative theories and explains the relationship of due diligence to market share theory. Part II argues that due diligence should be a prerequisite to market share liability. Part III discusses the nature of due diligence in this context. Finally, Part IV considers various objections to a due diligence requirement and argues that they are essentially without merit.

The Heroin Solution, Michigan Law Review

Michigan Law Review

A Review of The Heroin Solution by Arnold S. Trebach

The Hardest Drug: Heroin And Public Policy, Michigan Law Review

Michigan Law Review

A Review of The Hardest Drug: Heroin and Public Policy by John Kaplan

The Monopoly Component Of Inflation In Food Prices, Neal Smith

University of Michigan Journal of Law Reform

Part I examines monopoly power in the food industry, paying close attention to the increased economic strength of monopolies and the economic costs caused by monopoly power. Part II details the problems resulting from monopoly power in one segment of the food industry-the meatpacking industry. Part III calls upon the Congress to undertake new antitrust initiatives to reverse the food industry's trend toward increasing concentration. It cannot be said with certainty that food price inflation would totally disappear if the consumer loss due to monopoly were removed from the food manufacturing and retailing sectors. Doing away with these losses, however, …

Regulating Carcinogens In Food: A Legislator's Guide To The Food Safety Provisions Of The Federal Food, Drug, And Cosmetic Act, Richard A. Merrill

Michigan Law Review

On March 9, 1977, the Food and Drug Administration (FDA) announced that a study in laboratory rats conducted by the Canadian government confirmed that saccharin is an animal carcinogen. For this reason, the agency stated, the sweetener must be banned from human food.

The studies which Congress mandated, to be accompanied by the recommendations of the Secretary of HEW, are likely to generate a fundamental reexamination of the nation's current food safety policies. This Article attempts to aid this inquiry by explaining the requirements of the present law. The Article describes the several statutory provisions that govern the regulation of …

Legislative Notes: The Fda's Over-The Counter Drug Review: Expeditious Enforcement By Rulemaking, David Selmer

University of Michigan Journal of Law Reform

This article attempts to show that the OTC drug review has distinct advantages over traditional drug regulation. Part I outlines briefly the traditional case-by-case approach to drug licensing and describes FDA enforcement efforts prior to the OTC drug review. Part II sets forth the new rulemaking approach and considers the use of advisory panels. Part III examines several procedural questions associated with the review and concludes that the use of monographs as regulatory standards will afford the FDA an expeditious enforcement mechanism by resolving complex scientific issues at the administrative rather than the judicial level. Judicial review should be available, …

Decriminalizing The Marijuana User: A Drafter's Guide, Richard J. Bonnie

University of Michigan Journal of Law Reform

The article does not discuss the arguments in favor of decriminalization, a matter which the author' and others have covered elsewhere. Nor does the article consider the even more difficult questions involved in a legislative decision to legalize the drug and authorize its distribution for nonmedical uses. International obligations, federal law, and current political realities preclude enactment of a regulatory approach toward the availability of marijuana, including any variant of the so-called alcohol model. Although a state conceivably could repeal its laws against cultivation and distribution of marijuana, including only the federal prohibitions in effect, such an overt departure from …

The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review

Michigan Law Review

Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …

Improving Michigan's Generic Drug Law, Phyllis Greenwood Rozof

University of Michigan Journal of Law Reform

This note will describe the conditions which existed prior to enactment of the Michigan drug substitution law, will discuss the history and provisions of that legislation, and will identify certain problems which the law fails to correct.

Toward An International System Of Drug Control, Louis Lessem

University of Michigan Journal of Law Reform

By any measure the ongoing explosion in the abuse and trafficking of illicit drugs must be viewed as alarming. The past few years have seen a dramatic upsurge in the use of heroin and other opiates, the re-emergence of cocaine as a popular drug, and expansion of the use and availability of synthetic and psychotropic substances, and, perhaps of greatest international concern, the penetration of illicit narcotics into markets hitherto relatively free from drug involvement. Western Europe, Canada, and most recently the Soviet Union1 have reported the growth of drug-consuming populations. At the same time, there has been an awakened …

The Prosubstitution Trend In Modern Pharmacy Law, Sidney H. Willig

University of Michigan Journal of Law Reform

This article explores the legal problems presented to the practicing pharmacist by drug substitution. It delineates the practical and economic realities bearing on substitution and the arguments both in favor of and against limited legal substitution. After describing the current status of the law on the subject and the various resultant liabilities of the pharmacist, the article then suggests means by which substitution might be made an acceptable practice in certain circumstances.

Products Liability Based Upon Violation Of Statutory Standards, Joseph H. Ballway Jr.

Michigan Law Review

Regulatory enactments controlling production and distribution can give rise in several different ways to civil liability on behalf of persons injured by non-conforming merchandise. For instance, if a statute codifies existing common-law rules of negligence, its effect is merely to place the weight of legislative authority behind ordinary negligence principles. Since an injured party's recovery under such a provision still depends largely upon his proving in the traditional manner that a defendant failed to exercise due care, this kind of statute merits no further discussion. On the other hand, if particular legislation expressly states that a violator may be subjected …

Alcoholism And The Law, Melvin L. Selzer

Michigan Law Review

The American public has recently been subjected to a deluge of articles and books on the subject of alcoholism. While these contributions have been filled with valuable information, certain omissions have been noticeable. These omitted facts are of vital significance to any one wanting to gain insight into the broad problem of alcoholism. The first omission is a failure to stress that no one-or almost no one-knows who is alcoholic. This may include the alcoholic himself. It is a point of considerable importance in determining the proper disposition of certain criminal cases.

Federal Procedure-Appeal Under Federal Food, Drug & Cosmetic Act--Scope Of Admiralty Appeal Compared With Appeal Under The New Federal Rules, De Witte Chatterton

Michigan Law Review

Appellee, the United States government, by a proceeding in rem, sought to condemn two shipments of canned oysters packed by appellant, the C. C. Company, under the Federal Food, Drug and Cosmetic Act, on the ground that the oysters were wholly or partially decomposed. The district court found for the appellee on conflicting evidence of experts, and appellant appealed to the Circuit Court of Appeals for the Fifth Circuit. On the theory that procedure on appeal should conform to appeals in admiralty, the circuit court of appeals reviewed the whole case de novo, reversed the district court on the ground …

Constitutional Law - Commerce Clause - Regulation Of Renovated Butter Manufacture, Michigan Law Review

Michigan Law Review

Plaintiff, who was engaged in the manufacture of renovated butter from packing stock butter, brought an action to enjoin Alabama officials from enforcing state laws relating to the inspection and seizure of the raw material. Plaintiff contended that since the production of renovated butter was taxed and regulated by the United States, state action was excluded. The federal act conferred upon the Secretary of Agriculture, among other things the duty of ascertaining "whether or not materials used in the manufacture of said process or renovated butter are deleterious to health or unwholesome in the finished product, and in case such …

Torts-Liability Of Food Manufacturer To Ultimate Consumer, Michigan Law Review

Michigan Law Review

Plaintiff was injured by biting into a fishhook imbedded in a plug of chewing tobacco bought from an independent dealer and manufactured by defendant. There was evidence that another person had discovered a foreign particle in another plug made by defendant, but he did not know the exact identity of the substance. Held, that while the plaintiff's injury alone cannot raise an inference of negligence, the additional evidence of the second incident was sufficient to present the question to the jury, which found for the plaintiff. Caudle v. F. M. Bohannon Tobacco Co., 220 N. C. 105, 16 …

Statutes - Unincorporated Association As A "Person" Under The Liquor And Sales Acts, Felicia I. Hmiel

Michigan Law Review

In 1939 the International Workers Order, an unincorporated association, had a picnic and dispensed beer through its secretary to its members without charge. The association had not obtained a license to sell beer. The secretary, defendant herein, was arrested and tried for violation of the Liquor Control Act, which made it a misdemeanor for a person to sell liquor without a license. Held, that an unincorporated association is not a person within the meaning of the statute, and therefore there was no sale. People v. Budzan, 295 Mich. 547, 295 N. W. 259 (1940).

Indictment And Information - Requirement Of Specificity In Charging A Statutory Offense, Ward P. Allen

Michigan Law Review

On an information charging the possession of "a certain habit forming drug, to wit: Marijuana . . . in violation of section 158, Chapter 91, Illinois Revised Statutes (1935)," defendant was convicted in the municipal court of Chicago. The Illinois adoption of the Uniform Narcotic Drug Act made the possession of "any narcotic drug" unlawful; defined "narcotic drugs" to include "cannabis"; and stated that "Cannabis includes the following substances, under whatever names they may be designated: (a) The dried flowering or fruiting tops of the pistillate plant Cannabis Sativa L.," from which the resin has not been extracted; (b) the …

Municipal Corporations - Licenses - Prohibitory Fee On "Selfservice" Groceries, S. R. Stroud

Michigan Law Review

A city ordinance imposed an annual license fee of $10,000 on "self-service" groceries. The city had power by statute to license stores for the sale of meat, groceries, etc., for revenue purposes. Plaintiff brought an action to enj9in the ordinance. Held, the ordinance was invalid and injunction should be granted. Great Atlantic & Pacific Tea Co. v. Board of Commissioners of Camden, (N. J. Eq. 1939) 4 A. (2d) 16.

Sales - Implied Warranties Running To Ultimate Consumer - Is Privity Of Contract Necessary?, William K. Jackson

Michigan Law Review

Plaintiff's husband purchased from defendant, a large retailer, minced ham and liverwurst manufactured by another concern. Plaintiff with other members of the family became ill after eating the liverwurst. An appeal was taken from a directed verdict for defendant. Held, when food is sold, there is no implied warranty of wholesomeness running from the retailer to the ultimate consumer; for the remedy is based on contract and limited to parties and privies thereto. Borucki v. MacKenzie Bros. Co., Inc., (Conn. 1938) 3 A. (2d) 224.

Municipal Corporations - Police Power - Validity Of Ordinance Fixing Closing Hours, Fred C. Newman

Michigan Law Review

P, a general grocery store, brought an action to have a certain ordinance declared unconstitutional and to enjoin the enforcement of the ordinance. The ordinance provided that stores which sold or distributed "any uncured or uncooked meats or other foods of any kind intended for human consumption" should be open for business only between the hours of duty established for the municipal meat and food inspection department. Bona fide hotels, boarding houses, lodging houses, restaurants, drug stores, confectionery stores, dispensers of beverages, distributors of milk and cream, ice cream and soda fountains were expressly excepted from the operation of …

Sales - Nature Of Implied Warranty Of Fitness Of Food - Liability Of Intermediate Dealer, Michigan Law Review

Michigan Law Review

Plaintiff's husband purchased canned sauerkraut juice from a retail grocer, who, in turn, had purchased it from the defendant, a wholesale grocery company. The kraut juice, which had not been packed or canned by the defendant, contained deleterious substances that made the plaintiff ill. In an action for damages, the plaintiff recovered on the basis of an implied warranty of fitness for human consumption. Defendant appealed. Held, judgment sustained. Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. (2d) 930 (1938).

Municipal Corporations - Police Power - Extraterritorial Effect, Gerald M. Stevens

Michigan Law Review

A city ordinance prohibited the sale of ice cream within the city unless the seller had first obtained a certificate of registration from the city. The certificate could be obtained by registering the applicant's state ice cream factory license with the city commissioners of health, allowing an inspection of his factory, and paying an annual inspection fee. Defendant sold ice cream in the city without having done so. His factories were located two counties distant from the city; they had been duly licensed by the state. On prosecution by the city, held, the ordinance was void on the ground …

Municipal Corporations - Police Power - Validity Of Ordinance Fixing Closing Hours, Michigan Law Review

Michigan Law Review

A municipal ordinance required that all local business concerns selling or distributing food stay open for business only during the hours of duty of the municipal meat and food inspector. Hotels, restaurants, boarding houses, confectioneries, drug stores, soda fountains, and milk and cream dispensers were expressly excepted from these requirements. Plaintiff, a general grocery store, sought an injunction against the enforcement of these provisions, alleging that they were unreasonable and that the exceptions were discriminatory. Held, that under its police power to protect the public health, the municipality was authorized to pass such an ordinance as an aid to …