Jovel v. i-Health, Inc.

• Decision Date: 27 September 2013
• Docket Number: 12-CV-5614 (JG)
• Parties: AMY JOVEL, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. i-HEALTH, INC., a Delaware Corporation, Defendant.
• Court: U.S. District Court — Eastern District of New York

AMY JOVEL, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. i-HEALTH, INC., a Delaware Corporation, Defendant.

12-CV-5614 (JG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: September 27, 2013

FOR ONLINE PUBLICATION ONLY

MEMORANDUMAND ORDER

APPEARANCES

BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.

By: Patricia Syverson

Attorneys for Plaintiff

HOGAN LOVELLS US LLP

By: Frank T. Spano

Attorneys for Defendant

JOHN GLEESON, United States District Judge:

In May 2012, plaintiff Amy Jovel filed a Second Amended Complaint ("SAC") in a putative class action against i-Health, Inc. ("i-Health") in the Superior Court of California, Los Angeles county, alleging violations of (1) California's unfair competition law, § 17200 et seq. ("UCL"); (2) California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. ("CLRA"); and (3) various state consumer protection laws; and further alleging (4) a breach of express warranty. The claims are brought on behalf of two putative classes consisting of: "[a]ll consumers who purchased BrainStrong Toddler, BrainStrong Kids and/or BrainStrong Adults,"or, in the alternative: "[a]ll California consumers who purchased BrainStrong Toddler, BrainStrong Kids and/or BrainStrong Adults." ¹ SAC ¶¶ 29-30.

In June 2012, i-Health removed the case from Superior Court of the State of California for the County of Los Angeles to the United States District Court for the Central District of California. ECF No. 1. In August 2012, i-Health moved to transfer the case to this district pursuant to 28 U.S.C. §1404(a). ECF No. 16. Over Jovel's objection (ECF No. 19), the court granted i-Health's motion to transfer the case. ECF No. 25.

Defendant now moves to dismiss Jovel's claims on grounds of: (1) federal preemption; (2) primary jurisdiction; (3) failure to state a cognizable claim as a matter of law; (4) failure to satisfy the pleading standards of Federal Rules of Civil Procedure 8 and 9(b); and (5) lack of standing. For the reasons set for below, defendant's motion is denied.

BACKGROUND

The following facts are drawn from Jovel's Second Amended Complaint and are accepted as true for the purposes of this motion. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

Since April 2011 i-Health has manufactured, marketed, sold and distributed BrainStrong products, a line of four dietary supplements fortified with highly processed fermented algae, throughout the United States. SAC ¶ 1. The BrainStrong products are (1) BrainStrong Prenatal, (2) BrainStrong Toddler, (3) BrainStrong Kids, and (4) BrainStrong Adults. SAC fn. 1. Jovel alleges claims against three of the four products: BrainStrong Toddlers, BrainStrong Kids, and BrainStrong Adults (the "products"). SAC ¶ 12.

In December 2011, Jovel, who resides in Los Angeles County, California, purchased one box of BrainStrong Kids from a Wal-Mart in Los Angeles. SAC ¶ 10. Prior to purchasing BrainStrong Kids, Jovel saw i-Health's advertisements claiming that the products support brain health in adults and children. Id. She also read BrainStrong Kids' label reaffirming the advertised claims. Id. Relying on these claims, Jovel purchased BrainStrong Kids for her daughter, paying approximately $15. Id. Jovel gave the product to her daughter as directed, but found that the BrainStrong Kids product did not support brain health as represented. Id.

i-Health conveys to consumers in a nationwide marketing campaign that its products provide the essential docosahexaenoic acid or DHA² algal oil daily supplement that "supports brain health and function in children and adults." SAC ¶ 14. The BrainStrong products have labels stating that the products contain "life's DHA." SAC ¶ 15. The front and back panels of every product package emphasize the DHA algal oil and its ability to support brain health. SAC ¶¶ 20-21. The BrainStrong Toddlers and Kids packaging states that the product "[s]upports brain development and function," while the Adult packaging states that the product is "clinically shown to improve memory," "naturally supports mental clarity" and "helps protect against normal cognitive decline." SAC ¶ 1. i-Health has employed numerous methods to convey its brain health representations to consumers via the "BrainStrong" name, including i-Health's website, online and print materials, and the prominent statements on the products' packaging. SAC ¶ 3.

BrainStrong products do not support brain health in children or adults. SAC ¶ 2. Clinical cause and effect studies have found no causative link between DHA algal oil supplementation and brain health. Id. i-Health's representations are false, misleading andreasonably likely to deceive the public. Id. Because of i-Health's deceptive brain health representations, Jovel and members of the proposed class purchased products that do not perform as advertised, giving rise to Jovel's claims. SAC ¶ 5.

DISCUSSION

A. Rule 12(b)(6) Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). For purposes of ruling on a Rule 12(b)(6) motion, "the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Volpe v. Nassau Cnty., 12-CV-2416 (JFB), 2013 WL 28561, at *5 (E.D.N.Y Jan. 3, 2013); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft, 556 U.S. at 678.

When considering a motion to dismiss, a court may examine the following: "(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents 'integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) publicdisclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence." Nasso v. Bio Reference Labs, Inc., 11-cv-3480 (JFB), 2012 WL 4336429, at *3 (E.D.N.Y. Sept. 24, 2012) (quoting In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356-57) (S.D.N.Y. June 30, 2003) (internal citations omitted).

B. The Federal Regulatory Scheme

The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343 et seq. ("FDCA"), was enacted in 1938 as a successor to the 1906 Pure Food and Drugs Act, 34 Stat. 768, repealed by Act of June 25, 1938, ch. 675, § 902(a), 52 Stat. 1059, which had been the first comprehensive federal legislation designed to protect consumers from fraud or misrepresentation in the sale of food and drugs. See generally James T. O'Reilly, Food and Drug Administration § 3:1-13 (3d ed. 2009). The FDCA empowers the Food and Drug Administration ("FDA") to (a) protect the public health by ensuring that "foods are safe, wholesome, sanitary, and properly labeled," 21 U.S.C. § 393(b)(2)(A); (b) promulgate regulations pursuant to this authority; and (c) enforce its regulations through administrative proceedings. See 21 C.F.R. § 7.1 et seq. There is no private right of action under the statute. Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 810 (1986).

In 1990 Congress amended the FDCA by enacting the Nutrition Labeling and Education Act (the "NLEA"), codified as amended at 21 U.S.C. §§ 301, 321, 337, 343, 371. "The NLEA was passed to 'clarify and to strengthen the Food and Drug Administration's legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about the nutrients in foods.'" Nutritional Health Alliance v. Shalala, 144F.3d 220 (2d Cir. 1998) (citing H.R.Rep. No. 101-538, at 7 (1990)). The NLEA also added a preemption provision to Section 403A of the FDCA. It states, in relevant part:

Except as provided in subsection (b), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce

. . .

(5) any requirement respecting any claim of the type described in section 343(r)(1) of this title [i.e., nutrition levels and health-related claims], made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title . . . .

21 U.S.C. § 343-1(a)(5) ("Section 403A").

This statutory provision has been repeatedly interpreted not to preempt requirements imposed by state law that effectively parallel or mirror the relevant sections of the NLEA. See, e.g., New York State Rest. Ass'n, 556 F.3d 114, 123 (2nd Cir. 2009); Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 370 (N.D.Cal. 2010). Thus, the NLEA contemplates state enactment and enforcement of labeling requirements as long as they are identical to or parallel NLEA requirements. The purpose of the NLEA is to prevent State and local governments from adopting inconsistent requirements with respect to the labeling of nutrients. Astiana v. Ben & Jerry's Homemade, Inc., 2011 WL 2111796, at *9 (N.D.Cal. May 26, 2011).

Section 343(r)(1) of the NLEA describes " nutrition levels and health-related claims" in the labeling of food as those that ...