Bridges v. Meijer, Inc.

• Jurisdiction: United States,Federal,Illinois,Michigan
• Court: U.S. District Court — Western District of Michigan
• Writing for the Court: RAY KENT United States Magistrate Judge
• Docket Number: 1:22-cv-1112
• Decision Date: 20 February 2024
• Parties: LASHAN BRIDGES, Plaintiff, v. MEIJER, INC., Defendant.
• topic: Intellectual Property,Federal,Contracts law,Product Liability Law

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LASHAN BRIDGES, Plaintiff, v. MEIJER, INC., Defendant.

No. 1:22-cv-1112

United States District Court, W.D. Michigan, Southern Division

February 20, 2024

Hon Paul L. Maloney Judge

REPORT AND RECOMMENDATION

RAY KENT United States Magistrate Judge

This is a civil action brought by Lashan Bridges (“plaintiff”) against defendant Meijer, Inc. (“defendant”). This matter is now before the Court on defendant's motion to dismiss (ECF No. 5).

I. Background

Plaintiff is a citizen of Illinois. Compl. at ¶ 22 (ECF No. 1 PageID.4). Defendant is a Michigan corporation with its principal place of business in Michigan, with stores throughout Michigan, Illinois, Indiana, Kentucky, Ohio, and Wisconsin. Id. at ¶¶ 23 and 34, at PageID.4-5. Plaintiff alleged that defendant “manufactures, labels, markets, and sells three percent hydrogen peroxide solution identified as an antiseptic promoted ‘For Treatment of Minor Cuts and Abrasions' under the Meijer brand (‘Product').” Id. at ¶ 1, PageID.1. Plaintiff alleged that defendant's “representation the Product should be used ‘For Treatment of Minor Cuts and Abrasions' tells consumers it will assist in healing by shortening healing time, when this statement is false, misleading, and not authorized by any applicable body.” Id. at ¶ 2, PageID.2. Plaintiff alleged that “[a]s a result of the false and misleading representations, the Product is sold at a premium price . . . higher than similar products represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions.” Id. at ¶19, PageID.4.

Plaintiff set out the following allegations regarding her purchase of the Product:

46. Plaintiff purchased the Product at locations including Meijer, 755 E Boughton Rd, Bolingbrook, IL 60440, between May 2022 and June 2022, among other times.

47. Plaintiff believed and expected the Product could treat minor cuts and abrasions because that is what the representations and omissions said and implied, on the front label and the absence of any references or statements elsewhere.

48. Plaintiff paid more for the Product than she would have had she known the representations with respect to “Treatment of Minor Cuts and Abrasions” were false and misleading, and she would not have bought it or would have paid less.

49. Plaintiff relied on the words, terms coloring, descriptions, layout, placement, packaging, and/or images on the Product, on the labeling, statements, omissions, claims, and instructions, made by Defendant or at its directions, in digital, print and/or social media, which accompanied the Product and separately, through in-store, digital, audio, and print marketing.

50. Plaintiff bought the Product at or exceeding the above-referenced price.

51. Plaintiff paid more for the Product than she would have she known the representations and omissions were false and misleading, or would not have purchased it.

52. The value of the Product that Plaintiff purchased was materially less than its value as represented by Defendant.

Id. at PageID.6-7.

Plaintiff did not set out separate numbered counts. Based on the complaint, it appears that plaintiff has alleged six counts, some of which contain multiple causes of action:

Count I (Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1, et seq. and Michigan Consumer Protection Act, § 445.901, et seq.). Compl. At PageID.9.

Count II (Violation of State Consumer Fraud Acts / Consumer Fraud Multi-State Class). Id. Plaintiff does not cite any statutes.

Count III (Breaches of Express Warranty, Implied Warranty of Merchantability / Fitness for a Particular Purpose and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. (MMWA)). Id. at PageID.9-11. Plaintiff does not cite any statutes except for the MMWA.

Count IV (Negligent Misrepresentation). Id. at PageID.11.

Count V (Fraud). Id. at PageID.12.

Count VI (Unjust Enrichment). Id.

In addition to her individual claims, plaintiff includes “Class Allegations” for two classes pursuant to Fed.R.Civ.P. 23. First, an “Illinois and Michigan Class” consisting of “All persons in the States of Illinois and Michigan who purchased the Product during the statutes of limitations for each cause of action alleged[.]” Id. at ¶ 56, PageID.8. Second, a “Consumer Fraud Multi-State Class” consisting of “All persons in the States of Ohio, Indiana, Kentucky, and Wisconsin who purchased the Product during the statutes of limitations for each cause of action alleged.” Id.

Plaintiff seeks the following relief: certification of a class action with her as representative and her attorneys as counsel for the class; preliminary and permanent injunctive directing defendant to correct the challenged practices to comply with the law; “money, statutory and/or punitive damages and interests”; costs and expenses; and, reasonable fees for plaintiff's attorneys and experts. Id. at PageID.12.

II. Legal Standard

Defendant has moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(6) because it fails to state a claim upon which relief may be granted. Defendant's Motion (ECF No. 5). A complaint may be dismissed for failure to state a claim if it fails to give the defendants a fair notice of the claim and the grounds upon which it rests. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007).

[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotation marks omitted). In making this determination, the complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

III. Discussion

A. Plaintiff's state-law claims are expressly preempted because they seek to impose requirements in addition to those established by federal law.

Defendant contends that the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., expressly preempts plaintiff's state law claims. Specifically, that

To establish national uniformity for over the counter (OTC) drug labeling, Congress prohibited the states from establishing “any [labeling] requirement . . . that is different from or in addition to, or that is otherwise not identical with, a requirement” imposed under federal law. 21 U.S.C. § 379r(a)(2).

Defendant's Brief (ECF No. 6, PageID.31.).

“The federal preemption doctrine has grown out of the Supremacy Clause of the United States Constitution, which provides in part ‘the Laws of the United States which shall be made in Pursuance' of the Constitution ‘shall be the supreme Law of the Land.' ” State Farm Bank v. Reardon, 539 F.3d 336, 341 (6th Cir. 2008) (quoting U.S. Const., Art. VI, cl. 2). For purposes of the Supremacy Clause, “[t]he phrase ‘Laws of the United States' encompasses both federal statutes themselves and federal regulations that are properly adopted in accordance with statutory authorization.” Id. quoting City of New York v. Federal Communications Commission, 486 U.S. 57, 63 (1988).

The Sixth Circuit identified three different types of federal preemption:

(1) express preemption, which occurs when Congress expresses an intent to preempt state law in the language of the statute; (2) field preemption, where Congress intends fully to occupy a field of regulation; and (3) conflict preemption, where it is impossible to comply with both federal and state law, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 425 (6th Cir. 2000) (internal quotation marks omitted). “Regardless of the type of preemption at issue, this court's duty is to ‘determine whether state regulation is consistent with the structure and purpose' of applicable federal law.” State Farm Bank, 539 F.3d at 342 (quoting Gade v. National Solid Wastes Management Association, 505 U.S. 88, 98 (1992).

In Novotney v. Walgreen Co., No. 22 C 3439, 2023 WL 4698149, -- F.Supp.3d --(N.D. Ill. July 23, 2023), the plaintiff filed a similar lawsuit alleging state-law claims of fraud, breach of warranty, negligent misrepresentation and unjust enrichment with respect to the sale of three percent hydrogen peroxide,

Plaintiff's claims are rooted in defendant's practice of selling 3% hydrogen peroxide solution while representing that it is a “first aid antiseptic” to be used for “treatment of minor cuts and abrasions.” In fact, plaintiff claims, hydrogen peroxide is ineffective in treating minor cuts and abrasions because, contrary to popular belief, it does not reduce rates of wound infection. While hydrogen peroxide may kill some potentially harmful bacteria, plaintiff claims, it does more harm than good because it also destroys beneficial bacteria and healthy cells that promote healing.

Novotney, 2023 WL 4698149 at *1.

In Novotney, the court provided a detailed explanation of the process by which the Food and Drug Administration regulates OTC products such as hydrogen peroxide:

The Secretary of Health and Human Services has “authority to promulgate regulations for the efficient enforcement” of the FDCA,

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