Kardovich v. Pfizer, Inc.

• Decision Date: 31 March 2015
• Docket Number: No. 13–CR–7378 RRMVVP.,13–CR–7378 RRMVVP.
• Citation: 97 F.Supp.3d 131
• Parties: Matt KARDOVICH, Lila Chui, and Cindy Chang, on behalf of themselves and all others similarly situated, Plaintiffs, v. PFIZER, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

97 F.Supp.3d 131

Matt KARDOVICH, Lila Chui, and Cindy Chang, on behalf of themselves and all others similarly situated, Plaintiffs

v.PFIZER, INC., Defendant.

No. 13–CR–7378 RRMVVP.

United States District Court, E.D. New York.

Signed March 31, 2015.

Kim Richman, Michael Robert Reese, Reese Richman LLP, New York, NY, Melissa W. Wolchansky, Halunen & Associates, Minneapolis, MN, for Plaintiffs.

John H. Beisner, Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, Thomas E. Fox, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

Plaintiffs Matt Kardovich, Lila Chui, and Cindy Chang bring a putative class action grounded in various state statutory and common law claims, alleging that defendant Pfizer, Inc. has engaged in pervasive and deceptive labeling of Centrum branded multivitamins. (Am. Class Action Compl. (Doc. No. 13).) Before the Court is defendant's fully briefed motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def. Mem. Supp. Mot. Dismiss (Doc. No. 17–1); (Pls. Mem. Opp'n (Doc. No. 18)); (Def. Reply (Doc. No. 19).) For the reasons set forth below, defendant's motion is granted.

A. The Amended Class Action Complaint

The following allegations are taken from plaintiffs' amended class action complaint, and for purposes of this motion to dismiss are accepted as true. See Stratte–McClure v. Morgan Stanley, 776 F.3d 94, 97 n. 1 (2d Cir.2015).

Defendant manufactures and sells the Centrum brand line of multivitamins, (Am. Class Action Compl. at ¶ 56), which includes Centrum Silver Women 50+, Centrum Silver Men 50+, Centrum Silver Adults 50+, Centrum Women, Centrum Men, and Centrum Adults (collectively, “Centrum”), (id. at ¶ 2.) Through its labeling and marketing of Centrum, defendant has created in consumers' minds the belief that taking multi-vitamins will afford them positive health benefits and prevent illness and disease. (Id. at ¶ 1.) Centrum's packaging characterizes the product as a multivitamin/multimineral supplement, and defendant's 2012 Annual Report calls Centrum the “No. 1 selling brand of multivitamins in the world....” (Id. at ¶¶ 2, 16.)

Kardovich, an Illinois citizen, Chui, a New York citizen, and Chang, a California citizen, regularly purchased Centrum Silver Adults 50+, Centrum Silver Women 50+, and Centrum Adults, respectively, over a period of several years. In making their purchases, each claims to have relied on specific representations that the products would provide health benefits and protect from illness and disease. (Id. at ¶¶ 7, 8, 9.)

Specifically, plaintiffs point to “vignettes” on Centrum's packaging “indicating the different categories of positive health benefits that each product provides.” (Id. at ¶ 18.) The packaging for each of these products contained three out of four of the following image and text combinations:

[1] [An orange shield above the word IMMUNITY] With antioxidants to support the normal function of the immune system.

[2] [A yellow sun above the word ENVIRONMENTAL STRESS] With vitamins C

and E to help protect body's cells from free radicals damage caused by environmental stress.

[3] [A blue runner above the word PHYSICAL STRESS] With vitamins C

and E to help protect the body against the effects of physical stress.

[4] [A green circle of three arrows above the word METABOLISM] Contains B-vitamins to aid in the metabolism of fats, carbohydrates and proteins.

(Id. at ¶ 18.) Plaintiffs further allege that defendant's internet advertising and website “corroborates its intent to market Centrum's health benefits ... by appl[ying] the latest nutritional science to bring you an age-adjusted multivitamin with a broad spectrum of nutrients that help protect the health of adults 50+” (id. at ¶ 19), and strives to “convince consumers that its Products are scientifically supported” (id. at ¶ 20).

Plaintiffs claim that, “unfortunately for consumers, the scientific evidence affirmatively contradicts Defendant's promises to provide positive health benefits. Accordingly, such representations are unfair, unjust, false, misleading, and deceptive.” (Id. at ¶ 21.) In support, plaintiffs rely on a number of scientific studies and other materials, and to specific statements made therein that, according to plaintiffs, demonstrate the false, misleading and deceptive nature of Centrum's “promises to provide positive health benefits.” (Id. ) They are:

A December 2013 Editorial, titled Enough is Enough: Stop Wasting Money on Vitamin and Mineral Supplements, published in the Annals of Internal Medicine, which states: “[W]e believe that the case is closed—supplementing the diet of well-nourished adults with (most) mineral or vitamin supplements has no clear benefit and might even be harmful;” and that “there were no differences between the multivitamin and placebo groups in overall cognitive performance or verbal memory.” (Id. at ¶ 22.)

An article from that same issue of Annals of Internal Medicine, captioned “Original Research” and titled Long–Term Multivitamin Supplementation and Cognitive Function in Men, that states that study data “do[es] not provide support [for] use of multivitamin supplements in the prevention of cognitive decline.” (Id. at ¶ 23.)

A second article from that same issue, captioned “Review,” and titled Vitamin and Mineral Supplements in the Primary Prevention of Cardiovascular Disease

and Cancer : An Updated Systemic Evidence Review for the U.S. Preventive Services Task Force, that states that there was “no evidence of an effect of nutritional doses of vitamins and minerals on CVD [cardiovascular disease ], cancer or mortality in healthy individuals without known nutritional deficiencies.” (Id. at ¶ 24.)

A third article from the same issue, captioned “Original Research” and titled Oral High–Dose Multivitamins and Minerals after Myocardial Infarction

, that states “a 28–component, high-dose oral multivitamin and multimineral regimen used as secondary prevention in patients who have had MI [myocardial infarction ] did not statistically significantly reduce cardiovascular events.” (Id. at ¶ 25.)

A 2010 Harvard Medical School Special Health Report, titled The Truth About Your Immune System (“Harvard Study”), which makes the following assertions: 1) “Vitamins and supplements are incapable of ‘bolstering immunity.’ ”;¹ 2) “There isn't any evidence-based science behind the conception ‘boosting’ immunity beyond what our finely tuned immune system already provides;” 3) “It is an unwarranted claim that ingesting more of these vitamins will translate into better immune function.” (Id. at ¶ 26.)

Finally, a pre-suit demand letter to defendant from the non-profit consumer advocacy group the Center for Science in the Public Interest (“CSPI Letter”), citing one of its own “Nutrition Action HealthLetters,” stating, “[a]s measured by the number or length of illnesses, taking multivitamins does not affect immunity.” (Id. at ¶ 27.)

Plaintiffs conclude that “science-based evidence contradicts the promises made on [ ] Centrum's labels,” and that a reasonable consumer who purchases Centrum, “believing that it will provide the benefits as so promised ... would be deceived by Centrum's false and misleading claims because the science-based evidence directly contradicts Centrum's promises.” (Id. at ¶ 29.)

B. Procedural History

Kardovich, Chui, and Chang bring various individual and class claims under state law centered on these alleged false and misleading representations as follows: 1) unjust enrichment under New York common law on behalf of plaintiffs and the Nationwide Class;² 2) negligent misrepresentation under New York common law on behalf of plaintiffs and the Nationwide Class; 3) violation of the New York General Business Law § 349 (the “GBL”) on behalf of Chui and the New York Class;³ 4) unjust enrichment under New York common law on behalf of Chui and the New York Class; 5) negligent misrepresentation under New York common law on behalf of Chui and the New York Class; 6) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/1 et seq. (the “ICFA”) on behalf of Kardovich and the Illinois Class;⁴ 7) unjust enrichment under Illinois common law on behalf of Kardovich and the Illinois Class; 8) violation of the California Consumer Legal Remedies Act, Cal. Civ.Code § 1750 et seq. (the “CLRA”) on behalf of Chang and the California Class;⁵ 9) violation of the California False Advertising Law, Cal. Bus. & Prof.Code § 17500 et seq. (the “FAL”) on behalf of the California Class; and 10) violation of the California Unfair Competition Law, Bus. & Prof.Code § 17200 et seq. (the “UCL”) on behalf of Chang and the California Class. (Am. Class Action Compl. at ¶¶ 41–109.)

Defendant Pfizer has moved to dismiss all of plaintiffs' claims, on several grounds: 1) plaintiffs have failed to allege any false statements or deceptive acts by defendant; 2) all claims are preempted under the Nutrition Labeling and Education Act of 1990 (the “NLEA”), or in the alternative, should be referred to the Food and Drug Administration (the “FDA”) pursuant to the doctrine of primary jurisdiction; 3) Chui lacks the requisite “special relationship” with defendant to state a claim for negligent misrepresentation under New York law, and has not pled that defendant received the requisite direct benefit from her purchase of Centrum to state a claim for unjust enrichment under New York law; 4) Kardovich and Chang have not pled sufficient connections to New York to sustain their claims for negligent misrepresentation or unjust enrichment under New York law; and 5) Chui's and Kardovich's claims under New York and Illinois common law, respectively, fail because they are based on the same misconduct that underlies their other claims. Furthermore, defendant contends that if the Court finds that any of plaintiffs' allegations are sufficient to withstand the motion to dismiss, the Court should strike plaint...