by the FDA. V Although we have indicated that the traditional exhaustion requirement applies to one seeking judicial review of FDA status determinations, the requirement is not absolute. See Biotics, 710 F.2d at 1378. Exhaustion will not be required if administrative remedies are “inadequate or not efficacious” or where pursuit of administrative remedies would be a “futile gesture.” Id,.; Winter, 900 F.2d at 1326. DSC does not dispute the availability of administrative remedies. Rather, it claims that exhaustion prihciples do not apply when the issue involved is a legal one. As previously discussed, classifications of food and food additives are fact-based determinations. DSC also claims that pursuing administrative remedies is futile when the agency F.2d 125, 129 (1st Cir.1974) (<HOLDING>), with Schering Corp. v. Heckler, 779 F.2d 683,
holding that the trial court had jurisdiction to grant rule 37 relief where petitioner herred was in custody at the time the court ruled on his motion holding that district court had jurisdiction to grant declaratory relief where the fda had made announcement that it would seize certain foodpackaging materials containing more than 10 ppm of pcbs holding that to grant a new trial the error must be more than harmless holding that where the question to be resolved in the declaratory judgment action will be decided in a pending action it is inappropriate to grant a declaratory judgment holding that this court does not have jurisdiction over tax claims for declaratory or equitable relief