United States: Guest Post - The Sweet Smell Of Preemption Overcomes Plaintiffs' Stinky Consumer Fraud Claims

Last Updated: September 21 2015
Article by Andrew D. Stillufsen

What follows is a guest post from Reed Smith's Andrew Stillufsen, an associate in our Princeton office.  He discusses a new FDCA preemption case involving a cosmetic, rather than a drug or device.  As always, Andrew is entitled to all the credit (and any blame) for the contents of this post.

Take it away Andrew, and beware Sir Nose D'voidoffunk.

The ingenuity of our friends in the plaintiffs' bar is never-ending and always fascinating, like Cyrano de Bergerac's prodigious proboscis.  For example, this post is about a case brought by some resourceful lawyers who did  not turn up their nose at the possibility of a contingent fee based on the weight of a stick of deodorant.  Perhaps they were inspired by television ads showing average-looking twenty-somethings apply a certain deodorant and instantly becoming the best-looking  (and best-smelling) people in the room.  Perhaps not.  In any case, one thing is certain:  the court did not like what it sniffed after plaintiffs' claims were unwrapped, and so applied the sweet smell of preemption.  Another thing is also certain:  an overload of olfactory references appear in this post. 

Before we nosedive into the court's preemption analysis, let's take a look at plaintiffs' claims.  This putative consumer fraud class action was brought in the Southern District of New York and alleged the usual potpourri  of violations of consumer protection laws, as well as common law claims for breach of warranty, negligent misrepresentation and unjust enrichment.  Plaintiffs alleged that the defendant deceived them by (a) misstating the actual weight of usable product in each stick of its deodorant, (b) misstating the total net weight of each stick, and (c) not stating the amount of non-functional slack fill in each stick.  Bimont v. Unilever United States, Inc.,  2015 US Dist. Lexis 119908, at *2 ( S.D.N.Y. Sept. 9, 2015).

Defendant's motion to dismiss was likely inspired by the fragrance of preemption, since the deodorants at issue were both cosmetics and OTC drugs, and thus subject to the FDCA and FDA regulations.  This blog has posted before on preemption, cosmetics and OTC drugs, including sunscreen twice, and mouthwash.

The court began its preemption analysis with the refrain familiar to readers of this blog that "there is  no private right of action to enforce the FDCA."  Id. at *3.  Furthermore, "the FDCA explicitly forbids the states [from establishing] any requirement for labelling or packaging of a cosmetic that is different from or in addition to..." requirements under the FDCA.  Id. at *5 (quotations omitted).  However, in a provision with a scent similar to Buckman's "parallel violations" aroma, the court noted that the states are "free to create private rights of action under state statutes that impose requirements identical to those of the FDCA."  2015 US Dist. Lexis 119908, at *5.  In other words "[a] state law that applies to drugs or cosmetics is preempted if it imposes a requirement that is not identical to the requirements of the FDCA and the FDA's regulations."  Id. at *6.  Still, there's a caveat (isn't there always?):  "preemption does not preclude a state-law claim if the state requirement is outside the scope of the relevant federal requirements."  Id.

With the preemption table now set, the court proceeded to analyze three preemption approaches from other Second Circuit courts,  which ranged from fragrant to fetid (at least to our defense palate).  In the first approach, which had the sweetest-smelling bouquet, "state laws imposing non-identical requirements in areas that the FDA could have regulated are preempted."  Id. at *7 (emphasis in original).    The court explained that "the standard ...is not whether a state law actively undermines federal law.  It is whether state law diverges from federal law at all."  Id.  (citations omitted) (emphasis and ellipses in original).

The second approach was still agreeable, though slightly more pungent.  This approach to preemption is all about subject matter; "[i]f the FDA regulates a given subject matter, it preempts all non-identical state laws within the subject matter."  Id. at *8.  However, silence is not golden, and states are free to regulate where "FDA says nothing about the subject matter...."   Id. 

The third and the most malodorous approach "applies preemption only where state law requirements plainly conflict with federal requirements – most commonly, where a state law claim would prohibit conduct that is explicitly permitted by federal law."  Id. at *9.  Tellingly, the court noted that only one court in the Second Circuit had adopted this view.

Let's get right to the good news:  the court held that "Plaintiffs' claims are preempted under the first and second rules."  Id. at *10.  But before it told us why, the court held its nose and first set out to determine "whether or not the third rule is the correct one."  Id.  Spoiler alert:  "[i]t is not."  Id.

The court rejected the third approach because it "is inconsistent with the plain language of the FDCA's preemption statute" which forbids the states from imposing any requirements that are not "identical" to those within the scope of federal law.  Id. at *10.   If this third view were adopted, it would mean that "nothing would be left of the word 'identical' in this context.

States, under the third rule, would be free to pass any requirement: If the FDA has not already imposed them, they would, by definition, be outside the scope of federal law; and if the FDA has already imposed them, they would be identical to federal law.  That cannot be right. 

Id. at *10-11.  Accordingly, plaintiffs' claims would be preempted if FDA could have made regulations in the area, or had already made regulations in the subject matter at issue.

While the court's preemption analysis is the more interesting part of the opinion, its application to plaintiffs' claims still has a pleasant aroma.  First, plaintiffs' argued that they were misled by the amount of usable net weight in a deodorant stick because some of the deodorant is "embedded under the plastic platform ('bed') on which the deodorant stick stands," and is thus unusable.  Id. at *20. Who knew that little piece of plastic was called a bed?  More importantly, this argument was undercut by the fact that "federal law does not explicitly require that 'usable' net weight be disclosed."  Id. at *20.  Instead, federal law only requires disclosure of the weight of the product without its packaging.  Therefore, this claim was preempted under both the first and second approaches, not only because "FDA could have regulated in this area," but in fact it had already "promulgated regulations in the area of net weight disclosures for drugs and cosmetics," i.e. the subject matter of plaintiffs' complaints.   Id. at *21 (emphasis added).

Plaintiffs' claim that defendant's total net weight disclosures were false suffered a similar fate.  While plaintiffs conceded that federal regulations permitted "reasonable variations" in weight, and that the deodorant's actual net weight fell within the permitted variations, they nonetheless argued that defendant "intentionally and systematically" under filled the deodorant, which was not permitted by federal  law.  Id. at *17.

Let's unpack this argument.  Essentially, plaintiffs were claiming that, even though the deodorant's net weight was always within the permitted variation, defendant intentionally filled their products so that the net weight was at the bottom end of the permissible range.  The court took one whiff of this argument and easily turned it aside, because there was "nothing in federal law to suggest that manufacturers cannot do what [plaintiffs] allege [defendant] has done."  Id. at *18.

The court also cited a helpful Supreme Court decision which found that a California rule permitting net weight variances in meat was preempted because it did not allow for loss of weight from moisture loss, which was permitted under USDA regulations.  Id. at *18-19, citing Jones v. Rath, 430 U.S. 519 (1977).  While the court didn't explicitly say so, both the first and second approaches to preemption presumably applied to plaintiffs' second claim, as not only could FDA have regulated net weight disclosures, but it in fact had issued regulations on this very subject matter.  Therefore, "state laws forbidding net weight variations that are within the range allowed by federal law ought to be preempted as well, even if those variations are intentional or systematic."  Id. at *19.

Plaintiffs' third claim was also snuffed out by the court.  They argued that the deodorants were packaged with slack-fill "so as to give the appearance that they contain more deodorant then they actually contain."  Now we know that this concept has a name.  Unfortunately for plaintiffs, Congress also knew the name for this concept, and "specifically addressed the issue of slack-fill by explicitly authorizing the FDA to enact regulations to prevent the nonfunctional slack-fill of packages containing food, drugs, or cosmetics."  Id. at *11 (internal quotations and citations omitted).  While FDA had enacted regulations on slack-fill for food products, it had not done so for drugs or cosmetics.  In a similar refrain, not only could FDA have regulated the amount of slack-fill in cosmetics and drugs, it had actually made regulations in this specific subject matter.  Therefore, plaintiffs' claim that they were defrauded by the amount of slack-fill in the deodorant was preempted under both the first and second approaches, but not under the third, which the court had rejected.  It did make a difference.

Finally, in a clean sweep, the court also threw out plaintiffs'  remaining, equally foul-smelling claims.  Plaintiffs' claims for breach of warranty, negligent misrepresentation and unjust enrichment were tossed because common law torts like these "constitute requirements within the meaning of FDCA preemption" and were thus preempted for the same reasons as their consumer fraud claims.  Id. at *23.  Plaintiffs' false advertising claims were also dumped because plaintiffs failed to make any allegations regarding advertisements in their complaint, and thus were Twiqballed into the garbage.  As the saying goes, the nose knows, and doubly so for claims like these.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.