Slowinski v. Forces of Nature, Inc.
| Decision Date | 26 March 2021 |
| Docket Number | Case No. 20 CV 2381 |
| Parties | CHRISTINE SLOWINSKI, individually and on behalf of all others similarly situated, Plaintiff, v. FORCES OF NATURE, INC. Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Christine Slowinski brings this putative class action under Illinois law against Defendant Forces of Nature, Inc., alleging that Defendant has mislabeled its homeopathic over-the-counter (OTC) drugs, causing her and other purchasers various economic and non-economic injuries. Defendant has moved to dismiss. [24]. For the reasons explained below, this Court denies Defendant's motion.
Defendant manufactures, markets, sells, and distributes homeopathic medicinal products throughout the State of Illinois and the country under the brand name "Forces of Nature." [21] at ¶¶ 7, 10-11. Plaintiff, a purchaser of these products, alleges that Defendant falsely advertises thirteen of its products as containing certain active ingredients when those products do not, in fact, contain such ingredients. Id. at ¶¶ 8-9. For instance, according to Plaintiff, Defendant advertises and labels a maximum strength sinus product as containing the active ingredients "occimim," "berberis vulgaris," "allium sativum," "thuja occidentalis," "echinacea angustifoolia," "silica," and "trigonella foenum-graceum," when those ingredients are not present in the product. Id. at ¶ 8(k). Plaintiff claims she tested a sample of Defendant's maximum strength sinus product through a Fourier Transform Infrared Spectrometer (FTIR), which revealed that it contained no other substance but water and ethanol. Id. at ¶¶ 15-16. Plaintiff alleges that she purchased these products without knowing they did not contain the listed ingredients and, as a result, suffered injuries including lost money, time, and "stress, aggravation, frustration, loss of trust, loss of serenity, and loss of confidence in product labeling." Id. at ¶¶ 27, 33. She last purchased Defendant's products on February 10, 2020. Id. at ¶ 8.
To redress her alleged injuries, Plaintiff brings a four-count complaint on behalf of a putative class, asserting claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) (Count I); common law fraud (Count II); unjust enrichment (Count III); and breach of express warranties (Count IV). Id. at ¶¶ 48-73. Defendant has moved to dismiss the first amended complaint in its entirety. [24].
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must provide a "short and plain statement of the claim" showing that the pleader merits relief, Fed. R. Civ. P. 8(a)(2), so the defendant has "fair notice" of the claim "and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must alsocontain "sufficient factual matter" to state a facially plausible claim to relief—one that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility standard "asks for more than a sheer possibility" that a defendant acted unlawfully. Iqbal, 556 U.S. at 678. Thus, "threadbare recitals of the elements of a cause of action" and mere conclusory statements will not suffice. Tobey v. Chibucos, 890 F.3d 634, 639 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In evaluating a complaint under Rule 12(b)(6), this Court accepts all well-pleaded allegations as true and draws all reasonable inferences in the plaintiff's favor. Iqbal, 556 U.S. at 678.
In moving to dismiss, Defendant argues that: (1) it did not, as a matter of law, deceptively label its products; (2) Plaintiff was contributorily negligent in purchasing the products; (3) federal law preempts Plaintiff's claims; and (4) Plaintiff has failed to plead her fraud-based allegations with particularity. [25]. This Court first sets forth the federal framework regulating homeopathic drugs before turning to Defendant's arguments.
In 1938, after becoming "increasingly concerned about unsafe drugs and fraudulent marketing," Wyeth v. Levine, 555 U.S. 555, 566 (2009), Congress enacted the Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52 Stat. 1040 (). Relevant here, Congress prohibited the"adulteration or misbranding" of any "drug"; a "drug" is "misbranded" if its labeling is "false or misleading in any particular." 21 U.S.C. §§ 331(b), 352. Under the FDCA, a "drug" includes "articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States [(HPUS)], or official National Formulary, or any supplement to any of them." Id. § 321(g)(1).
As another district court has observed in considering claims regarding homeopathic drugs, HPUS merely sets forth standards for source, composition, and preparation of homeopathic drugs and contains monographs of drug ingredients used in homeopathic treatment. Delarosa v. Boiron, Inc., 818 F. Supp. 2d 1177, 1183 (C.D. Cal. 2011). Unlike non-homeopathic OTC drugs, the FDA "has largely abdicated any role it might have had in creating standards for homeopathic OTC drugs, and has instead attempted to delegate this authority to the non-governmental organization that determines whether homeopathic substances should be included in the HPUS." Id. at 1191; see also In re Celexa & Lexapro Mktg. & Sales Practices Litig., No. CIV.A. 13-11343-NMG, 2014 WL 866571, at *4 (D. Mass. Mar. 5, 2014) (), aff'd on other grounds, 779 F.3d 34 (1st Cir. 2015). As such, the mere fact that a drug has been included in HPUS does not mean that it has been approved by the FDA for safety or efficacy, or that the FDA has approved its labels. See Forcellati v. Hyland's, Inc., No. CV121983GHKMRWX, 2015 WL 9685557, at *3 (C.D. Cal. Jan.12, 2015); Jovel v. Boiron Inc., No. 2:11-CV-10803-SVW-SH, 2013 WL 12164622, at *11 (C.D. Cal. Aug. 16, 2013).
Against this backdrop, Defendant argues that its labels comply with federal standards and are thus not deceptive as a matter of law, therefore foreclosing all of Plaintiff's claims, which rely upon the common contention that Defendant misrepresented the ingredients contained in its products. [25] at 2-7, 14-15. Implicit in this argument is the notion that, because the FDA has signed off on Defendant's labeling, its labels cannot be misleading as a matter of law. Id. Not so. As noted above, a drug's inclusion in HPUS does not mean that the FDA has approved its labels. Forcellati, 2015 WL 9685557, at *3.
Relatedly, Defendant also argues that Plaintiff fundamentally misunderstands homeopathy, insisting that it maintains accurate labels and that Plaintiff has falsely accused it by alleging otherwise. [30] at 2-5. While this may (or may not) be the case ultimately, such an argument is misplaced on a motion to dismiss. This Court must take as true Plaintiff's allegations that, after testing samples of Defendant's products via FTIR, Plaintiff discovered that they did not contain the active ingredients listed on the labels. Calderone v. City of Chicago, 979 F.3d 1156, 1161 (7th Cir. 2020). In short, this Court cannot simply conclude at this juncture that Defendant accurately labeled its products.
B. Contributory Negligence
Next, Defendant argues that Plaintiff was contributorily negligent because she did not understand the labels on the products she purchased; that negligence, Defendants says, bars all of her claims. [25] at 8-9. This Court disagrees.
First, under Illinois law, a "victim's negligence is not a defense to an intentional tort." Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 573 (7th Cir. 2004); see also Straits Fin. LLC v. Ten Sleep Cattle Co., 900 F.3d 359, 376 (7th Cir. 2018). Thus, Plaintiff's alleged contributory negligence, even if proven, would not bar Plaintiff's ICFA and fraud claims.
Second, contributory negligence constitutes an affirmative defense and ordinarily presents "a factual issue to be decided by the trier of fact." Cont'l Grp., Inc. v. Lincoln Land Moving & Storage, Inc., 710 F.2d 368, 372 (7th Cir. 1983); see also Lomec v. United States, No. 12 C 9439, 2014 WL 4699500, at *2 (N.D. Ill. Sept. 22, 2014). At this stage, the record remains undeveloped, and thus, this Court has no basis to conclude that Defendant would succeed on the merits of its contributory negligence defense.
Defendant also argues that the doctrines of preemption and primary jurisdiction bar Plaintiff's state-law claims. [25] at 9-14. This Court addresses both arguments below.
The Supremacy Clause of the Constitution provides that the Constitution and federal laws constitute "the supreme Law of the Land . . . Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. Accordingly, the Supremacy Clause "invalidates state laws that 'interfere with, or are contrary to,' federal law." Dolin v. GlaxoSmithKline LLC, 901 F.3d 803, 811 (7th Cir. 2018) (quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985)), cert. denied, 139 S. Ct. 2636 (2019).
Preemption comes in three forms: (1) express preemption, which occurs when "Congress clearly declares its intention to preempt state law"; (2) field preemption, which occurs when the "'structure and purpose' of federal law shows Congress' intent to preempt state law"; and (3) conflict preemption, when there exists an "actual conflict between state and federal...
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