Plaintiffs appealed the dismissal of their putative classaction against P&G; the court of appeals affirmed in part and reversed inpart. They alleged that P&G wasunjustly enriched and violated the consumer-protection laws of all fifty stateswhen it sold DayQuil Plus Vitamin C and NyQuil Plus Vitamin C. P&G sought to exploit the commonly held,yet allegedly unfounded, belief that Vitamin C is effective for treating coldsymptoms by using the following statements in its advertisements:
VICKS NyQuil Cold & Flu SymptomRelief Plus Vitamin C provides multi-symptom cold and flu relief so you can getthe sleep you need to enjoy an even sweeter tomorrow. Plus, you'll alsoreplenish your body with 150% of the daily value of vitamin C.
Vitamin C: It won't cure a cold,but vitamin C can help blunt its effects. Aim for 500 mg a day.
Fighting Cold and Flu Season....Don't forget to take your daily vitamins. Consider taking extra vitamin C,vitamin A, and zinc, all of which may help you.
Plaintiffs alleged that they chose these products overcompeting ones in part because of these statements, but that no scientificevidence supports the Vitamin C claims, and that without the false advertisingthey would’ve bought cheaper competing products instead.
Since each state was the place of injury, the law of all 50states applied, even though the ad campaign originated in Ohio. That left plaintiffs’ New Jersey CFAclaims. The district court found thempreempted by the FDCA and not cognizable under New Jersey law.
There’s no private cause of action under the FDCA, andplaintiffs can’t “label as arising under a state law for which there exists aprivate enforcement mechanism a claim that in substance seeks to enforce theFDCA.” (Except for NLEA-related claims,of course.) The issue is then when astate law claim is really seeking to enforce the FDCA, and the test is whetherthe claim would exist in the absence of the FDCA. If the conduct on which the claim is premisedwould traditionally give rise to state law liability, the claim is notpreempted.
Here, only one of plaintiffs’ two theories was impliedlypreempted. The preempted theory was thatP&G failed to tell consumers that its products were “illegal” because theirlabels didn’t comply with FDCA requirements. This theory depended entirely on an FDCA violation.
Separately, plaintiffs alleged that P&G violated statelaw by representing that taking Vitamin C can blunt the effects of a cold. This was a traditional tort theory that wouldexist in even in the absence of the FDCA. True, the complaint referred extensively to an FDA warning letterstating that FDA regulations do not permit combining Vitamin C with any of theactive ingredients contained in DayQuil and NyQuil in part because the evidenceis “insufficient to classify vitamin C as safe and effective” forover-the-counter use. But plaintiffs’ claim does not depend upon the FDA’sconclusion “and would logically exist even in its absence.”
The district court also held that plaintiffs didn’tplausibly allege an ascertainable loss as required by the statute. The New Jersey Supreme Court has held thatout of pocket loss counts; the plaintiff’s burden at summary judgment is to putforth “evidence of loss that is not hypothetical or illusory,” “with somecertainty demonstrating that it is capable of calculation.”
The district court reasoned that plaintiffs got the benefitof their bargain: an effective cold remedy. This was error because it ignored the allegation that they would’vebought a cheaper product were it not for the alleged misrepresentations. The “quantifiable or measurable” loss was thealleged price difference, which is the measure of their damages. The overall effectiveness of the product as atreatment for cold symptoms doesn’t mean there was no loss. P&G repackaged this argument as anArticle III standing claim, where it was equally unavailing.
Then, P&G argued that none of the statements on whichplaintiffs based their claims were false or plausibly misleading. The court ofappeals agreed except for the statement: “Vitamin C: It won't cure a cold, butvitamin C can help blunt its effects.” It was plausible that plaintiffs couldprove that Vitamin C has no effect on cold symptoms “or has such a marginaleffect that advertising its ability to blunt cold symptoms creates a ‘capacityto mislead’ the average consumer.” Though the ad expressly says vitamin C can’tcure colds, but blunting the effects of a cold is a separate claim. The other statements weren’t plausiblymisleading, though “Consider taking extra vitamin C, vitamin A, and zinc, allof which may help you” presented a closer question. The court of appeals, uninterested in howconsumers actually interpret words like “can” and “may,” found that thestatement couldn’t plausibly be misleading “because it does not state that thelisted products will do anything, only that they might.” So I guess I can advertise that buying myadvertising law casebook might help your cold? I mean, I have no reason to think it won’t.
Finally, the court affirmed the dismissal of claims underthe other forty-nine states’ laws. Inview of recent circuit case law finding that a nationwide consumer protection classcouldn’t be certified given Ohio's choice-of-law rules and the materialdifferences between the States' consumer-protection laws, reinstating theclaims would be futile.
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