Category Archives: Preemption

FDCA Express Preemption Victory in Benecol Misbranding Class Action

By Maya Ingram and Claudia Maria Vetesi on May 16th, 2013 Posted in False Advertising Claims, Misbranding, Preemption

A recent Third Circuit case brings good news for defendants making express preemption arguments under the Food, Drug and Cosmetic Act (FDCA) in misbranding class actions. Last week, the court affirmed the dismissal of a putative class action holding that Johnson & Johnson’s representations of the trans fat content and cholesterol-lowering capabilities of its Benecol®… Read More

A Dismissal That’s Sweeter Than Honey

By William Tarantino on April 2nd, 2013 Posted in Preemption

A recent case from the Central District of California brings good news to defendants making preemption arguments under the Nutrition Labeling and Education Act (NLEA) in private surgeon general cases. Cardona v. Target Corporation, et al., No. 2:12-cv-01148-GHK-SP, Docket Entry 48 (C.D. Cal. Mar. 20, 2013). While defendants have had mixed success with preemption, especially… Read More

Preemption: The Cure for the Common Claim?

By William Tarantino on February 28th, 2013 Posted in Misbranding, Preemption

Although the landscape of the Federal Food Drug and Cosmetic Act (FDCA) preemption of private Surgeon General class action claims continues to shift under our feet in California, first with POM and recently with this case, the Sixth Circuit has recently made clear that consumer protection claims that would not have existed “but for” the… Read More

Preemption Still Has Teeth: The FDCA Keeps California False Advertising Claims at Bay in Pom Wonderful Suit

By Alexis Amezcua on February 14th, 2013 Posted in False Advertising Claims, Preemption

As we have noted in prior posts (FDCA, POM, preemption), the Food, Drug, and Cosmetic Act (“FDCA”) can provide a powerful tool to food companies that are hit with claims about their labeling. Yesterday, Judge Otero in the Central District of California confirmed that preemption under the FDCA has teeth, finding that the FDCA preempts… Read More

Preemption and the Health Claim Class Action:
FDA to the Rescue?

By William Tarantino on September 13th, 2012 Posted in False Advertising Claims, Misbranding, Preemption

In one of the very first private surgeon general class actions, plaintiffs alleged that pictures of fruits on fruit drink products conveyed to consumers that the products contain those fruit in amounts greater than the 10% fruit juice common in most fruit juice drinks. Thankfully, the Central District of California ruled that the FDA’s precise… Read More