RALPH S. ABERNATHY, ADMINISTRATOR FOR THE ESTATE OF EURAL FRANK ABERNATHY, APPELLANT v. 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.

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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.

Appeal from the United States District Court for the Western District of North Carolina.

Before WINTER, BUTZNER and HALL, Circuit Judges.

PER CURIAM:

[1] 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.

[2] The district court concluded that there was no cause of action under the

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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.

[3] 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).

[4] AFFIRMED.