The nature of this case, including pleadings and issues, was fully set forth in the opinions handed down by this court on March 17, 59 F.Supp. 284, and August 7, 1945, 61 F.Supp. 847, and will not be repeated.
It was held that the only question that could be considered was the one of compliance with the due process clause of the Federal Constitution, by the Administrator, in adopting the regulations which prevent the use of coal tar or its derivatives in the manufacture of eyelash or eyebrow coloring. It was held that, if sufficient notice and opportunity to be heard, within Constitutional requirements, had been afforded to the claimant here, and others in a similar situation, that the sole procedure for a review of the action of the Administrator is provided by the statute itself, and that is, through appeal from the ruling of the Administrator to the Circuit Court of Appeals having jurisdiction. See subparagraph (f) Sec. 371, 21 U.S.C.A.
The bill in this case, as amended, charges that the product in question is made from coal tar or a coal tar derivative, which has not been certified for use therein, in violation of the regulations adopted by the Administrator. This is admitted by defendant, but he denies that his product is dangerous when applied according to directions. In this situation I am of the opinion that the admission is sufficient to warrant sustaining the seizure and that the action of the Administrator on the evidence produced at the hearing can be reviewed only through the appellate procedure provided by the Act.
There should be summary judgment as prayed for.