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.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions