Health Law Daily Wrap Up, COVID-19—D. Kan.: Kansas suit alleging Pfizer falsely advertised its COVID-19 vaccine remanded to state court, (May 20, 2025)

By Donielle Tigay Stutland, J.D.

The court found no federal jurisdiction under federal officer removal, Grable jurisdiction, or preemption.

The federal district court in Kansas City, Kansas has granted the State of Kansas’s motion to remand its false advertising lawsuit against Pfizer, Inc. back to state court. The State of Kansas filed a lawsuit against Pfizer, Inc. in state court, alleging violations of the Kansas Consumer Protection Act (KCPA) by making false, misleading, and deceptive statements about the safety and efficacy of its COVID-19 vaccine. Pfizer removed the case to the U.S. District Court for the District of Kansas. Kansas filed a motion to remand. The federal court granted Kansas’s motion to remand, finding no federal jurisdiction under federal officer removal, Grable jurisdiction, or preemption (Kansas v. Pfizer, Inc., No. 24-1128-DDC-BGS (D. Kan. May 14, 2025)).

Background. Pfizer, Inc., a publicly traded pharmaceutical company, contracted with the U.S. Department of Defense to produce 100 million doses of an FDA-approved COVID-19 vaccine for $1.95 billion. The contract explicitly disclaimed federal government authority over Pfizer’s marketing efforts, granting Pfizer exclusive control over its public communications. In the complaint, Kansas’s suit alleged that the company waged a misinformation campaign by promoting “false, misleading, and deceptive” statements about its COVID-19 vaccine and its efficacy and asserted claims arising under the Kansas Consumer Protection Act (KCPA).

The suit was originally filed in state court. Pfizer then removed the case to federal court. Pfizer’s notice of removal cited three grounds for removal—federal officer removal, federal question jurisdiction under Grable, and complete preemption. Kansas filed a motion to remand, challenging all three grounds for removal.

Federal officer removal. The court began its analysis by looking at the state’s challenge to the argument that the suit belonged in federal court due to federal officer removal. The court outlined that, “The federal officer removal statute permits removal of a state action that is against ‘any person acting under’ an officer of the United States ‘for or relating to any act under color of such office.’”

The court assumed without deciding that the company—through its contract—was acting under the federal government and that the company could assert a colorable federal defense to the state’s claims, which was sufficient to satisfy prong one and prong three to invoke the federal officer removal statute. However, the court determined that the state’s claims did not have the requisite “connection or association with government-directed conduct” to facilitate the case’s removal and satisfy prong two.

The connection-or-association prong asks whether there is a “sufficient connection between the charged conduct and the asserted official authority.” Here, Kansas’s allegations targeted Pfizer’s marketing practices (e.g., misleading public statements, censoring social media, concealing safety data), not its vaccine production or delivery, which were the government-directed actions. The court noted that Pfizer’s contract with the government includes a provision that expressly disclaims the government’s authority over defendant’s marketing efforts. The court distinguished this case from Sawyer v. Foster Wheeler LLC where the challenged conduct (inadequate warnings) was directly tied to government requirements. In Sawyer, the plaintiff—the estate of a man who had died of mesothelioma—sued, among other defendants, a manufacturer that produced boilers for U.S. Navy ships. The Fourth Circuit held that this removal under the federal officer removal statute was proper, as it met the connection-or-association prong: “the federal government all but required Foster Wheeler to perform the complained-of actions, so those actions ‘clearly related' to Foster Wheeler’s ‘acting under’ the federal government.”

The court contrasted this case, noting that “the claims here do not challenge [defendant’s] production and supply” of vaccines. Rather, the state alleged that Pfizer “misled the public[,]” “concealed critical effectiveness information from the public[,]” “worked to censor speech on social media[,]” and “conceal[ed], suppress[ed], and omitt[ed] material information that undermined its safety and effectiveness claims.” The court found a lack of connection or association.

Pfizer also argued that the state’s connection-or-association argument “makes no sense” because it has alleged that Pfizer conspired with the federal government. The court rejected this argument as well, finding no evidence that the federal government exercised “strict guidance or control” over the alleged conspiracy, as required for the “acting under” prong. Wrote the court, “allowing defendant to remove this case to federal court ‘would permit a federal contractor with a non-frivolous federal defense to invoke federal jurisdiction under § 1442(a)(1) for conduct only remotely or tenuously related to its federal contracts and thereby impermissibly expand the scope of federal officer removal[.]’”

Grable jurisdiction. The court next turned to Pfizer’s argument that Grable jurisdiction—or substantial federal question jurisdiction applies. The court detailed that Grable jurisdiction is proper only if “‘the federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.’”

Pfizer argued that Kansas’s claims implicated federal law by challenging the FDA’s vaccine approval and compliance with consent judgments tied to federal requirements (FDC Act and FDA guidance). The court was not persuaded, “Even assuming that either of these rationales necessarily raises a federal issue, neither is ‘substantial’ within the meaning of the Grable test.” The court also stressed that Pfizer had not identified any “concrete federal law or regulation that the case definitively implicates[,]” finding that Pfizer’s references to “the federal government’s policy response to a national emergency” and “federal decisions made during a national emergency” would be too abstract to satisfy the standard for this prong. The court concluded that Grable jurisdiction was improper due to the lack of a substantial federal issue.

Complete preemption. Finally, the court addressed Pfizer’s preemption argument. Pfizer argued the Public Readiness and Emergency Preparedness Act’s (PREP Act) willful-misconduct provision preempted Kansas’s claims. The court noted that the Tenth Circuit applies a two-step test to “determine whether a state-law claim is completely preempted by federal law,” asking: (1) whether Congress intended a federal cause of action for removal, and (2) whether the federal law preempts the state law. The PREP Act also provides two remedies: (1) an exclusive federal cause of action for death or serious physical injury caused by willful misconduct, and (2) a compensation fund for injuries from covered countermeasures.

Pfizer asserted that the PREP Act completely preempts the state’s claims, thus allowing removal. The court rejected this argument, finding that the PREP Act’s willful-misconduct remedy applies only to claims involving death or serious physical injury, and here, Kansas’s claims focused on deceptive marketing, not physical harm. The court determined that the PREP Act’s willful-misconduct cause of action does not “vindicate the same basic interest or right that would be vindicated under state law,” and Pfizer’s claims—which allege deceptive and misleading marketing—are “too far removed from the interest that would be vindicated” under the PREP Act’s cause of action. The court found that Pfizer’s preemption argument failed.

The case is No. 24-1128-DDC-BGS.

Judge: Crabtree, D.

Attorneys: Kaley Schrader, Office of the Kansas Attorney General, for State of Kansas. Andrew J. Hoffman, II (D'Amore Law Group, PC) for Pfizer Inc.

Companies: Pfizer, Inc.

Cases: CaseDecisions Covid19 DrugBiologicNews GeneralNews KansasNews