The following is a guest post by Mollie Benedict and Amanda Villalobos, both of Tucker Ellis, about a recent dismissal they won of one of those all-too-common California “consumer protection” strike suits where nobody’s really injured.  They get all the credit for the win, and all the blame for this post.

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In an April 27, 2012 post, “Who Needs TwIqbal?”,  John Sullivan examined a putative class
action in New Jersey federal court, Young v. Johnson & Johnson.  Sullivan
credited the defendant for putting a standing argument (usually a bench player)
into the starting line-up  in the case,
and both standing and federal preemption came through in the clutch:  The court dismissed Plaintiff’s claims that
he had been misled by representations on the labels of the margarine substitute
Benecol Spread, finding both that (1) Plaintiff lacked standing because he had
not alleged any injury and (2) his claims were preempted because he sought to
impose labeling requirements that were not identical to those imposed by the
Federal Food, Drug and Cosmetic Act (FDCA) as amended by the Nutrition Labeling
and Education Act (NLEA).

Reid v. Johnson & Johnson, 2012 U.S. Dist. Lexis 133408
(S.D. Cal. Sept, 17, 2012) is a west coast rematch – another putative class
action involving Benecol spread, this time in federal court in San Diego.  As in Young, Plaintiff alleged that the
defendants made misleading claims regarding Benecol’s trans fat content and the
cholesterol-lowering benefits of Benecol’s key ingredient, plant stanol
esters.  Plaintiff claimed he purchased
the product in reliance on these alleged misrepresentations, asserting causes
of action under California’s consumer protection statutes, the Unfair
Competition Law, the False Advertising Law, 
and the Consumer Legal Remedies Act.
Defendants again brought standing off the bench to lead
off, arguing that Plaintiff lacked standing because he suffered no injury in
fact and, more significantly, because no reasonable consumer was likely to be
deceived by Benecol’s label claims, a standing requirement under all three
consumer protection statutes.  Although
the court found that Plaintiff had adequately pleaded an injury in fact because
he alleged that he “paid more for Benecol, and would have been willing to pay
less, or nothing at all, if he had not been misled by the representations and
practices”…
[Editorial note:  This proves that California is even more extreme than New Jersey]
…it also found that Plaintiff “has not set forth alleged facts
showing that Benecol’s statements may deceive a reasonable consumer.”  Score another win for standing.
But preemption, still waiting on deck, again came to the
plate to hog some of the glory.  As
mentioned in Sullivan’s Young post, the NLEA contains a broad express
preemption provision prohibiting states from establishing labeling requirements
that are not identical to federal regulations.
The court concluded that because Benecol’s claims regarding
plant stanol esters and their cholesterol-reducing properties were permitted by
federal law, Plaintiff’s claims were preempted. 
The court based its preemption analysis on an enforcement discretion
letter issued by FDA in 2003.  The letter
advised that, based on new scientific evidence, the agency would relax the
content requirements for products eligible to bear the plant stanol ester
health claim codified in 21 C.F.R. §101.83. 
While Benecol’s label conformed to the requirements of the 2003 letter,
Plaintiff contended the letter did not constitute a final agency action and did
not have the force and effect of federal law, so Benecol should be required to,
but did not, conform to 21 C.F.R. § 101.83.
The court disagreed, finding that “[t]he [2003] letter
reflects the FDA’s position” and that “Plaintiff’s plant [stanol] esters claim
essentially … seeks to impose a different, outdated interim rule requirement
for  Defendants from that set forth in
the 2003 FDA Letter….”  Id. at
*21-22.
[Editorial note:  The FDA letter in Reid was not a warning letter, which are different]

The court also found that Plaintiff’s trans fat claims were
barred by preemption. According to Plaintiff, Benecol’s “No Trans Fat” and “No
Trans Fatty Acids” statements constituted unauthorized nutrient content claims
even though the FDA permits the statements “0g trans fat” or “0 grams trans
fat” to appear on food labels.  The
court, relying on the doctrine of common sense, disagreed with Plaintiff and
noted that an attempt to distinguish the statements “No Trans Fat” and “0 grams
trans fat” was unreasonable because the two terms are functionally
equivalent. 

Defendants also argued that Plaintiff’s claims should be
dismissed based on primary jurisdiction and its closely related cousin,
judicial abstention.  While the court
found application of primary jurisdiction to be inappropriate in this case, it
declined to rule on the issue of judicial abstention, leaving open the
possibility that it too may have been a basis to bar Plaintiff’s claims.