Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—N.D. Ill.: California deceptive advertising claims against Walgreen over Vitamin E labeling were preempted by federal law, (Aug 12, 2013)

By Tobias J. Gillett, J.D., LL.M.

A purchaser of a Vitamin E supplement from Walgreen Co. failed to state a claim under California law concerning deceptive and misleading advertising, because the purchaser’s claim was preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), the federal district court in Chicago has ruled (Trujillo v. Walgreen Co., August 9, 2013, Zagel, J.).

The purchaser alleged that Walgreen falsely advertised its Walgreens Vitamin E 400 IU Dietary Supplement with the statement “Vitamin E naturally contributes to cardiovascular health by helping to protect LDL cholesterol from oxidation which may cause cellular damage.” Walgreen’s bottle also contained the disclaimer: “This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, cure, or prevent any disease.” The purchaser alleged “that numerous scientific studies have proven that Vitamin E supplements do not contribute to cardiovascular health,” and therefore that Walgreen’s statement violated California law against false and misleading advertising.

The court concluded that the purchaser’s claims were preempted by the FDCA. The FDCA, as amended by the Nutrition Labeling and Education Act of 1990 (NLEA), contains an express preemption provision “prohibit[ing] states from imposing, directly or indirectly, requirements” concerning labels like Walgreen’s statement that were not “identical to the federal requirements,” the court explained.

Here, relevant federal regulations provided that a statement regarding a dietary supplement could be made if (A) the statement “describes the role of a nutrient or dietary ingredient intended to affect the structure or functions in humans, characterizes the documented mechanism by which a nutrient or dietary ingredient acts to maintain such structure or function, or describes general well-being from consumption of a nutrient or dietary ingredient, (B) the manufacturer of the dietary supplement has substantiation that such statement is truthful and not misleading, and (C) the statement contains” a disclaimer identical to that included on Walgreen’s label.

Walgreen’s label met these criteria, according to the court. Walgreen’s statement described Vitamin E’s role in “inhibit[ing] cell-damaging oxidation, as well as atherosclerosis, or accumulation of fatty materials in the blood vessels, which obviously contributes to cardiovascular health.” The court noted that it was “not inconsistent” for Walgreen “to say that a nutrient ‘contributes’ to good cardiovascular health,” even if the nutrient had not been shown to help prevent major cardiovascular events. Moreover, Walgreen’s statement was “substantiated by the very studies that [the purchaser] relie[d] on in” his complaint, and Walgreen’s disclaimer “perfectly track[ed]” the disclaimer in the regulations.

The court distinguished its present holding from Pearson v. Target Corp., 2012 WL 7761986 (N.D. Ill. Nov. 9, 2012), in which the court declined to dismiss Illinois Consumer Fraud and Deceptive Practices Act claims “that there was no substantiation for the claim that Glucosamine and Chondroitin affected the structure or function of the human body in the way that the products’ labeling claimed.” Here, the purchaser claimed that Walgreen’s statement was “misleading because some studies suggest that Vitamin E supplements are ineffective in preventing major cardiovascular diseases,” but the court observed that “stating that a nutrient ‘contributes to health’ is not equivalent to stating that it ‘cures disease.’” The court noted that the purchaser had “effectively pled herself out of court” on a claim that no scientific substantiation existed for the claim that antioxidants contribute to cardiovascular health.

The case is No. 13 CV 1852.

Attorneys: Elaine Ryan (Bonnett Fairbourn Friedman & Balint, PC) for Andrea Trujillo. Robert M. Andalman (Loeb & Loeb LLP) for Walgreen Co.

Companies: Walgreen Co.

Cases: StateUnfairTradePractices Advertising IllinoisNews