Lester v. CVS Pharm.

• Jurisdiction: United States,Federal,New York
• Docket Number: 22-cv-7334 (PKC)
• Decision Date: 27 March 2024
• Citation: Lester v. CVS Pharm., 22-cv-7334 (PKC) (S.D. N.Y. Mar 27, 2024)
• Parties: MICHAEL LESTER, individually and on behalf of all others similarly situated, Plaintiff, v. CVS PHARMACY, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

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MICHAEL LESTER, individually and on behalf of all others similarly situated, Plaintiff, v. CVS PHARMACY, INC., Defendant.

No. 22-cv-7334 (PKC)

United States District Court, S.D. New York

March 27, 2024

OPINION AND ORDER

P Kevin Castel, Senior United States District Judge

Plaintiff Michael Lester brings a putative class action against defendant CVS Pharmacy, Inc. (“CVS”), alleging that the phrase “For treatment of minor cuts &amp abrasions” contained on the front label of defendant's CVS Health brand 3% hydrogen peroxide solution is false and misleading because it inaccurately conveys that the product assists in healing wounds or shortens healing time. Lester asserts that the product cannot perform either function and therefore cannot “treat” minor cuts and abrasions.

Lester asserts claims for violation of sections 349 and 350 of the New York General Business Law (“GBL”) and for the violation of similar consumer protection statutes in other states. Lester also brings claims for breach of express warranty, breach of the implied warranties of merchantability and fitness for a particular purpose, violation of the Magnuson Moss Warranty Act, negligent misrepresentation fraud, and unjust enrichment. CVS has moved to dismiss under Rule 12(b)(6), Fed.R.Civ.P. (ECF 22.)

For the reasons discussed below, the Court concludes that Lester's claims are preempted by federal law. CVS's motion to dismiss is therefore granted.

I. BACKGROUND

A. Factual Background

CVS manufactures and sells a 3% hydrogen peroxide solution (the “Product”) under the CVS Health brand. (ECF 1, Complaint ¶ 1). Lester alleges that he purchased the Product on at least one occasion at a Manhattan CVS between May and June 2022 for $1.79. (Id. ¶¶ 25, 55). The front label of the Product's packaging identifies it as a “First Aid Antiseptic” and an “Oral Debriding Agent.” (Id. ¶ 1.) The front label also states that the Product is used “[f]or treatment of minor cuts & abrasions[.]” (Id.)

Lester's claims turn on his interpretation of this phrase-specifically, the word “treatment.” According to Lester, consumers who see this packaging are misled because “[dictionaries define ‘treat' as attempting to heal, improve or cure a condition,” (id. ¶ 6), and although “hydrogen peroxide may reduce the number of bacteria at a wound, no credible evidence supports a connection between the number of bacteria and reduction in healing time of a clean wound,” (id. ¶ 7). Based upon his interpretation of “treatment,” he asserts that the label “tells purchasers it [the Product] will assist in the healing process and shorten healing time,” and that this is a “false, misleading” statement that is “not authorized by any applicable body.” (Id. ¶ 19). Lester alleges that hydrogen peroxide's “caustic properties negatively effect [sic] healthy cells involved in wound healing,” (id. ¶ 13), and had he “known the truth, he would not have bought the Product or would have paid less for it,” (id. ¶ 24).

Lester seeks to represent a class of consumers who purchased the Product in New York (the “New York Class”), and in addition, a multi-state class of consumers of the Product in Montana, Alabama, Arkansas, Utah, Kansas, Alaska, Wyoming, and Nebraska (the “Multi-State Class”). (Id. ¶ 62).

The Complaint asserts the following federal and state law claims: (1) violation of sections 349 and 350 of the GBL (and the consumer fraud statutes of the other states relevant to the proposed Multi-State Class), (2) breach of express warranty, breach of the implied warranties of merchantability and fitness for a particular purpose, and violation of the Magnuson Moss Warranty Act, (3) negligent misrepresentation, (4) fraud, and (5) unjust enrichment. (Id. ¶¶ 69104.) The Complaint seeks compensatory and punitive damages. (Id. at 14 ¶ 2).

B. Procedural History

This Court has subject matter jurisdiction over Lester's claims pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). (Id. ¶ 26.) Additionally, venue is proper in this district because Lester alleges that he purchased the Product in Manhattan. (Id. ¶¶ 33, 55.)

Lester filed his Complaint on August 27, 2022. (Id. at 14.) CVS moved to dismiss the Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. (ECF 22.) In his opposition brief, Lester urges the Court to either deny defendant's motion or grant him leave to file an amended complaint. (ECF 24 at 15.)

CVS filed a reply (ECF 25), and later filed three Notices of Supplemental Authority directing the Court's attention to several recent cases^[1]in which plaintiffs bring similar or identical claims regarding the labeling of 3% hydrogen peroxide solutions against different manufacturers and retailers, in which the labeling claim was held to be preempted by federal law. (ECF 26, 27, 28.) In addition, the Court also takes judicial notice of a more recent case from the Northern District of New York, also dismissing on preeemption grounds. See Solak v. Target Corporation, 2023 WL 5806326, at *7 (N.D.N.Y. Sept. 7, 2023).^[2]

The Court's own analysis of the claims at issue here reaches the same conclusion as these other district courts: Lester's claims regarding the Product are preempted by federal law. Lester's complaint will therefore be dismissed.

II. LEGAL STANDARD

A. Motion to Dismiss for Failure to State a Claim

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P., a plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)). In assessing a complaint, courts draw all reasonable inferences in favor of the non-movant. See In re Elevator Antitrust Litigation, 502 F.3d 47, 50 (2d Cir. 2007). Legal conclusions are not entitled to any presumption of truth, and a court assessing the sufficiency of a complaint disregards them. Iqbal, 556 U.S. at 678. Instead, the court must examine only the well-pleaded factual allegations, if any, “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

“[O]n a motion to dismiss [under Rule 12(b)(6)], a court may consider ‘documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.'” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)). Federal regulations published in the Federal Register “shall be judicially noticed.” 44 U.S.C. § 1507; see also Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016) (citations omitted) (“[W]e may properly take judicial notice of this document (without converting Acorda's motion to dismiss into a motion for summary judgment) because the [FDA “Guidance for Industry” document] is publicly available and its accuracy cannot reasonably be questioned.”).

B. Federal Preemption

Federal preemption is a doctrine that derives from the Supremacy Clause of the Constitution. “The Supremacy Clause establishes that federal law ‘shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'” Gibbons v. Bristol-Myers Squibb Company, 919 F.3d 699, 707-08 (2d Cir. 2019) (quoting PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011) (quoting U.S. CONST. art. VI, cl. 2)). If federal law and state law conflict such that a party cannot follow both, “state law must give way” to federal law. Id. (citation omitted).

Although preemption is an affirmative defense, “preemption ‘can still support a motion to dismiss if the statute's barrier to suit is evident from the face of the complaint.'” Glover v. Bausch & Lomb Inc., 6 F.4th 229, 236 n.3 (2d Cir. 2021) (quoting Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (citations and internal quotation marks omitted)), certified question answered, 275 A.3d 168 (Conn. 2022).

III. DISCUSSION

A. The FDCA and Hydrogen Peroxide Monographs

CVS argues that Lester's state law claims are expressly preempted by the Food, Drug, and Cosmetic Act (“FDCA”). The FDCA regulates the labeling of both prescription and nonprescription drugs.^[3]See 21 U.S.C. § 301 et. seq. To further the goal of establishing national uniformity for nonprescription over-the-counter (“OTC”) drug labeling, the Act prohibits states from imposing “any requirement . . . that is different from or in addition to, or that is otherwise not identical with, a requirement under this chapter[.]” Id. § 379r(a)(2). CVS characterizes Lester's argument as imposing state law requirements on the labeling of the Product beyond those imposed by the FDCA, in direct violation of the Act's prohibition.

The Court concludes that Lester's Complaint seeks to hold CVS liable under state law for its failure to label the Product in a manner that is “different from,” “in addition to,” or “otherwise not identical with” FDCA labeling requirements. Lester's state law claims are therefore preempted by federal law.

1. The FDCA and Preemption

“The FDCA statutory regime is designed primarily to protect the health and safety of the public at large.” POM Wonderful LLC v. Coca-Cola Company, 573 U.S. 102, 108 (2014) (citations omitted). The FDCA empowers the Food and Drug Administration (“FDA”) to regulate the marketing of drugs to ensure their safety and effectiveness. 21 U.S.C. § 393(a), (b)(1), (b)(2)(B).

To accomplish this mission, the FDA sets out detailed conditions under which OTC drugs are “generally recognized...