Abernathy v. Schenley Industries · 556 F.2d 242

The opinion

556 F.2d 242

Ralph S. ABERNATHY, Administrator for the Estate of Eural

Frank Abernathy, Appellant,

SCHENLEY INDUSTRIES, INC., Schenley Distillers, Inc.,

Schenley Affiliated Brands Corporation,

Mecklenburg Board of Alcoholic Beverage

Control, Appellees.

No. 76-2424.

United States Court of Appeals,

Fourth Circuit.

Argued May 3, 1977.

Decided June 7, 1977.

Ronald C. Williams, Charlotte, N. C., for appellant.

Hunter M. Jones, Charlotte, N. C. (Harry C. Hewson, Jones, Hewson & Woolard, Charlotte, N. C., on brief), for Schenley Industries, Inc., etc.

John G. Golding (Harvey L. Cosper, Jr., Golding, Crews, Meekins, Gordon & Gray, Charlotte, N. C., on brief), for Mecklenburg Board of Alcoholic Beverage Control.

Before WINTER, BUTZNER and HALL, Circuit Judges.

PER CURIAM:

Ralph S. Abernathy, administrator of the estate of Eural Frank Abernathy, who died from acute ethanol poisoning, appeals from a judgment of the district court dismissing his action. He alleges that Schenley, as manufacturer, and Mecklenburg Board of Alcoholic Beverage Control, as seller, violated federal statutes by failing to have their labels warn of the hazard of such poisoning.

The district court concluded that there was no cause of action under the Food, Drug, and Cosmetic Act, because the whiskey was neither misbranded nor adulterated within the meaning of the statute. 21 U.S.C. §§ 331 , 343, and 351. It further held that the Consumer Products Safety Act does not apply to food, and that beverage alcohol is a food under the statute. 15 U.S.C. § 2052 . Finally, the court concluded that because Schenley had followed the relevant regulations in having its label officially approved, it had met its obligation under the statute pertaining to the labelling of intoxicating liquor, 27 U.S.C. § 205 (e); 27 C.F.R. §§ 5.1-5.56 . We affirm.

We also conclude that the district judge did not abuse his discretion in denying pendent jurisdiction to Abernathy's state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966).

AFFIRMED.