Protest 980012-G of Bullocks, Inc. (Los Angeles)

Before the First Division, May 11, 1942 No. 47171. Protest 980012-G of Bullocks, Inc. (Los Angeles). [MAJORITY — Walker, J.] Opinion by Walker, J. At the trial it was stipulated that the merchandise in question is "a preparation used as an application to the skin, such as a cosmetic or grease or toilet preparation, face cream,” nonalcoholic, and that it has a therapeutic property. The court was of the opinion that the plaintiff failed to make out a prima facie case in support of its claim under paragraph 5, as the provision for medicinal preparations is a designation by use, and the mere fact alone that the article has a therapeutic property does not entitle it to classification as medicinal preparations. United States v. Hillier’s (14 Ct. Cust. Appls. 216, T. D. 41706), United States v. Boker (6 id. 243, T. D. 35472), United States v. Cooper (22 C. C. P. A. 31, T. D. 47038), and Scharf v. United States (25 id. 32, T. D. 49038) cited. The claim under paragraph 34 was found obviously untenable as the article in question is evidently a mixture or preparation whereas paragraph 34 provides for natural and uncompounded drugs. The protest was therefore overruled.