Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—S.D. N.Y.: Johnson & Johnson avoids consumers’ misbranding claims over its Listerine mouthwash, (Nov 5, 2014)

By Linda O’Brien, J.D., LL.M.

In a putative class action suit by two consumers against health care products manufacturer Johnson & Johnson for allegedly misbranding their Listerine Total Care line of mouthwashes, the consumers’ state consumer protection claims were preempted by the Food, Drug and Cosmetics Act, the federal district court in New York City has ruled. The consumers’ claims under the Magnuson-Moss Warranty Act were also dismissed (Bowling v. Johnson & Johnson, November 4, 2014, Scheindlin, S.).

Consumer health care products company, Johnson & Johnson (J&J), manufactures dental hygiene products, including a line of mouthwashes under the brand name Listerine Total Care (LTC). The Listerine label represents that the products offer various health benefits, including that the Listerine products “restore enamel.” Consumers Suzanna Bowling and Edward Buchannan filed a putative class action and J&J, alleging that the company misbranded LTC, in violation of the Magnuson-Moss Warranty Act (MMWA) and state consumer protection statutes. The plaintiffs asserted that medical and dental experts have concluded that the loss of tooth enamel is permanent and J&J’s representations that LTC restores enamel is false and misleading. J&J moved for dismissal.

Preemption. The court found that the Food, Drug and Cosmetics Act (FDCA) preempted the plaintiffs’ state law claims. The FDCA regulates the development and marketing of food, drugs, and cosmetics and the Food and Drug Administration (FDA) has the exclusive regulatory authority over the enforcement of the FDCA provision which prohibits misbranding of drugs. Regarding over-the-counter drugs, the FDCA expressly preempts state law labeling requirements that differ from federal labeling requirements.

It was the plaintiffs’ burden to establish that their state law claims were not preempted by the FDCA and they needed to plead facts showing that the FDA has affirmatively prohibited the “restores enamel” label, according to the court. The plaintiffs did not meet their burden since if the FDA had prohibited the label, is would have issued a regulation and there was no such regulation. Moreover, the FDA had issuance guidance on dental hygiene products and did not indicate that “restores enamel” was misleading, the court noted.

MMWA. The MMWA allows a claim by consumers who are damaged by the failure of a warrantor to comply with any obligation under a written warranty. Under the MMWA, a warranty is defined as a “written affirmation” that a consumer product will be free of defects or meet a specified level of performance over a specified period of time. In this case, the “restores enamel” label was not a warranty within the meaning of the MMWA as it did not guarantee enamel restoration over a specified period of time. At most, the label was a product description. Therefore, the court concluded that the plaintiffs’ MMWA claim failed as a matter of law.

The case is No. 14-cv-3727.

Attorneys: Neal J. Deckant (Bursor & Fisher, P.A.) and Patrick C. Cooper (Ward & Wilson, LLC) for Suzanna Bowling and Edward Buchannan. Steven A. Zalesin and Peter A. Nelso (Patterson, Belknap, Webb & Tyler LLP) for Johnson & Johnson, NcNeil-PPC, Inc., and Johnson & Johnson Healthcare Products.

Companies: Johnson & Johnson; NcNeil-PPC, Inc.; Johnson & Johnson Healthcare Products

Cases: ConsumerProtection NewYorkNews