COVINGTON 5. BURLING 
Gilbert S. Omenn, Ph.D., M.D. 
January 6, 1978 
Page Four 
additional alternative proposals in the Federal Register 
of May 28, 1974 (39 F.R. 18463) that would either prohibit 
the sale and other distribution of small pet turtles or 
would improve the certification scheme and impose additional 
requirements on the sale and shipment of these turtles. 
In discussing the first of his two alternative proposals 
in the preamble, the Commissioner stated that: 
"Under the Public Health Service 
Act, the Commissioner has the authority 
to extend a prohibition on distribution 
to all turtles and turtle eggs, whether 
or not they have passed through inter- 
state commerce, if in his judgment such 
a complete ban would be necessary for 
effective control over the interstate 
spread of turtle-associated diseases." 
39 F.R. at 18464. 
On the basis of the comments received, the Commissioner 
issued a final regulation in the Federal Register of May 23, 
1975 (40 F.R. 22543) , banning all such turtles from intra- 
state and interstate commerce. In paragraph 13 of the 
preamble, on page 22545, the Commissioner specifically re- 
jected a suggestion that the turtles should be banned from 
interstate shipment but should be permitted for intrastate 
shipment. 
Subsequently, the State of Louisiana brought suit 
to enjoin enforcement of this regulation on a variety of 
legal grounds. In State of Louisiana v. Matthews, 427 F. 
Supp. 174 ( E.D. La. 1977) , the Court upheld the legality 
of the regulation against all challenges. Specifically, 
the Court ruled that FDA could properly ban all small turtles 
rather than only those turtles shown to be infected and thus 
to be health hazards, on the ground that "Congress has 
granted broad, flexible powers to Federal health authorities 
who must use their judgment in attempting tc protect the pub- 
lic against the spread of communicable disease." The Court 
rejected, as unproven, a contention that less drastic means 
of regulation would be sufficient to protect the public. It 
ruled that Section 361 permits FDA to control intrastate as 
well as interstate activity. Finally, it rejected a conten- 
tion that the regulation is discriminatory because there are 
[Appendix A — 260] 
