Jackson-Mau v. Walgreen Co.
| Decision Date | 24 January 2023 |
| Docket Number | 18-CV-4868 (FB) (TAM) |
| Parties | THEDA JACKSON-MAU, on behalf of herself and others similarly situated, Plaintiff, v. WALGREEN CO. and INTERNATIONAL VITAMIN CORPORATION, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Appearances:
For the Plaintiff: CARL L. STINE MATTHEW INSLEY-PRUITT PHILIP M BLACK Wolf Popper LLP
For Defendants: COURTNEY J. PETERSON Bryan Cave Leighton Paisner LLP
This is one of several recent suits in courts around the country against manufacturers and retailers of glucosamine supplements.[1] As with many of these cases, the plaintiff here alleges violations of state consumer protection statutes and seeks class certification. Plaintiff Theda Jackson-Mau (“Jackson-Mau”) purchased a glucosamine-based joint health supplement (the “Product”) produced and sold by Walgreen Co. (“Walgreens”) and International Vitamin Corporation (“IVC”) (collectively, “Defendants”). Her Amended Complaint lodges claims against Defendants for breach of contract, unjust enrichment, and deceptive business practices in violation of New York General Business Law § 349, individually and on behalf of three putative classes. Jackson-Mau's unjust enrichment claim was dismissed at the pleading stage.
Several motions are currently pending before the Court: Jackson-Mau's request for judicial notice and motions for class certification, partial summary judgment, and intervention, as well as Defendants' motion for summary judgment, motion to strike exhibits in Jackson-Mau's request for judicial notice, and motion to exclude Jackson-Mau's expert witnesses. For the reasons discussed below, Defendants' motion for summary judgment is granted and Jackson-Mau's motion for partial summary judgment is denied.
The Court's grant of summary judgment for Defendants is chiefly predicated on the preemption of Jackson-Mau's claims by the Federal Food, Drug, and Cosmetic Act (“FDCA”), as amended by the Nutrition Labeling and Education Act of 1990 (“NLEA”). The Court holds that the FDCA preempts all of Jackson-Mau's claims, and that her New York General Business Law Claim would fail on the merits in any event.
Because Defendants' motion for summary judgment is dispositive, the Court need not address the remaining pending motions, including Jackson-Mau's request for judicial notice, her motion for class certification, and her proposed motion to intervene.[2] “Courts are not required to decide class certification before reaching the merits of a case.” Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 507 (E.D.N.Y. 2017) (citing Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d Cir. 1998)) (“the determination of whether a class meets the requirements of Rule 23 must be performed separately from the determination of the merits, but it does not require that class certification be addressed first”). Courts may opt to address a motion for summary judgment before a motion for class certification where, as here, “there is sufficient doubt regarding the likelihood of success on the merits of the plaintiff's claims,” as well as “to prevent inefficiency or avoid waste.” Id.
The following facts are taken from the parties' Rule 56.1 statements and are uncontested unless otherwise noted. Jackson-Mau purchased the Product, a bottle of supplements labeled “glucosamine sulfate” under the Finest Nutrition brand, from Walgreens. After her purchase, Jackson-Mau sent the Product to undergo tests that she claims found that the Product was mislabeled. These tests were conducted by Dr. Neil Spingarn, whom Jackson-Mau would call as an expert witness.
Glucosamine is a chemical compound marketed to alleviate symptoms of osteoarthritis, namely joint pain. To stabilize glucosamine for sale in dietary supplements, it can be bound to hydrochloric acid to form glucosamine hydrochloride or sulfuric acid to form glucosamine sulfate. Glucosamine sulfate can be further crystalized with potassium chloride to form glucosamine sulfate potassium chloride as a single crystal (“single-crystal glucosamine”). On the other hand, glucosamine hydrochloride crystals can also be blended with potassium sulfate crystals (the “glucosamine blend”). The glucosamine blend is a blend of two crystalized chemical compounds that are chemically separate and are not bound in a single crystal, unlike single-crystal glucosamine, in which the same four ions are joined in one crystal. Single-crystal glucosamine and the glucosamine blend contain the same four chemical ions in the same ratios.
In 2018, Jackson-Mau sued Defendants on behalf of herself as well as three putative classes of consumers who had purchased the Product. Jackson-Mau alleges that the Product contained the glucosamine blend instead of what she thought she was buying-single-crystal glucosamine. Her suit alleges deceptive business practices in violation of New York General Business Law § 349 against Walgreens and IVC, as well as a breach of contract claim against Walgreens. Jackson-Mau does not claim any bodily injury or inefficacy caused by receiving the glucosamine blend instead of single-crystal glucosamine. Instead, she claims economic damages stemming from allegedly receiving a different supplement than the one she paid for.
This Court previously ruled on Defendants' motions to dismiss, dismissing Jackson-Mau's unjust enrichment claim, see Jackson-Mau v. Walgreen Co., No. 118CV4868FBVMS, 2019 WL 5653757 (E.D.N.Y. Oct. 31, 2019), as well as her claim for injunctive relief, Jackson-Mau v. Walgreen Co., No. 118CV4868FBVMS, 2022 WL 2541091 (E.D.N.Y. July 7, 2022).
Defendants argue that Jackson-Mau cannot establish that the Product was actually mislabeled or show that it does not contain single-crystal glucosamine, and that her mislabeling claims and testing methods are preempted by the NLEA and regulations promulgated pursuant thereto. They also argue that the alleged mislabeling would be immaterial and that she has failed to prove an injury under New York General Business Law § 349.
Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute exists if evidence produced in the pleadings, discovery materials, and affidavits Choi v. Tower Rsch. Cap. LLC, 2 F.4th 10, 16 (2d Cir. 2021) (quoting Frost v. N.Y.C. Police Dep't, 980 F.3d 231, 242 (2d Cir. 2020)). All ambiguities and factual inferences are resolved “in favor of the party against whom summary judgment is sought.” Id. (citing Sloley v. VanBramer, 945 F.3d 30, 36 (2d Cir. 2019)). “Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must set out specific facts showing a genuine issue for trial, and cannot rely merely on allegations or denials contained in the pleadings.” Pik Quan Leong v. 127 Glen Head Inc., 102 F.Supp.3d 450, 453 (E.D.N.Y. 2015); see Fed.R.Civ.P. § 56(c).
Defendants argue that Jackson-Mau's suit is preempted by federal law because it seeks to impose labeling requirements not identical to federal standards under the FDCA, as amended by the NLEA. They maintain that Jackson-Mau's claims relating to the “nutrition facts” panel on the side of the Product's label are expressly preempted by the FDCA, and that her claims relating to the use of “glucosamine sulfate” on other portions of the label are barred by conflict preemption. Defendants also assert that Jackson-Mau's claims are expressly preempted because she did not abide by testing methods mandated by the FDCA. Because preemption is an affirmative defense that poses a barrier to suit, the Court turns to it first.
Under the Supremacy Clause of the Constitution, state and local laws that conflict with federal law are “without effect.” New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010) (quoting Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008)); U.S. Const. art. VI, § 2. “FDCA preemption, like all federal preemption, is an affirmative defense,” and must be established by the party claiming it. Durnford v. MusclePharm Corp., 907 F.3d 595, 604 n.8 (9th Cir. 2018). In general, three types of preemption exist:
(1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives.
New York SMSA Ltd. P'ship, 612 F.3d at 104 (internal quotations omitted).
“Express preemption occurs when congressional enactments explicitly preempt state law,” English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990), and its scope is determined by preempting language's plain meaning, Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002). Express preemption is narrowly construed: “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors preemption.'” Altria Group, Inc., 555 U.S. at 77 (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)).
Conflict preemption, on the other hand, is “usually found based on implied manifestations of congressional intent,” as indicated through “a statute's . . . structure and purpose.” New...
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