“Don’t leave home without it.”  “Takes a licking and keeps on ticking.”  “Just do it.”  “Tastes great, less filling.”  Iconic ad campaigns so recognizable that we don’t even need to tell you the product being advertised.  Here’s another one:  “The nighttime sniffling, sneezing, coughing, aching, stuffy head, fever, so you can rest medicine.”  For over forty years Nyquil has been a staple in American homes for when your head feels like it weighs 50 pounds, you’re shivering with fever and you’re going through a box of tissues an hour.  You take Nyquil and you lose about eight hours of your life, but boy did you need it.   We aren’t pharmacists, pharmacologists, or doctors – but we know it works.  And while we may only be lawyers, we are also parents.  So, we also know a thing or two about chicken soup, gargling salt water, humidifiers, eucalyptus, neti pots, and vitamin C.  Vitamin C, right?  Isn’t that supposed to help fight colds?  Well, it turns out that the science on vitamin C, like other supplements such as zinc and Echinacea, is mixed at best.  So, what happened when vitamin C was added to Nyquil?  You guessed it.  A consumer fraud class action lawsuit.

We first happened upon Loreto v. The Procter & Gamble Company, when the district court dismissed all plaintiffs’ claims, 737 F.Supp.2d 909 (S.D. Ohio 2010), and we blogged about it here.  Late last month the Sixth Circuit largely upheld the dismissal, but found a sliver of a claim survived.  2013 U.S. App. LEXIS 3813 (6th Cir. Feb. 22, 2013).

While the suit was filed in Ohio, the named plaintiffs were New Jersey residents and both courts determined that their claims arose under the New Jersey Consumer Fraud Act (“NJCFA”).  Id. at *3-4.  Plaintiffs alleged that defendant misled them in its marketing of Nyquil and Dayquil Plus Vitamin C because “no scientific evidence supports the claim that Vitamin C can alleviate cold symptoms.”  Id. at *2.   Plaintiffs claimed that but for defendant’s statements about the added benefits of vitamin C, they would have purchased lower-priced competitor products.  Id.  Defendant’s marketing and advertising of the “Plus Vitamin C” varieties of Nyquil and Dayquil and FDA’s position on vitamin C in combination cold symptom medications, including a Warning Letter to defendant, is detailed in the district court’s opinion.  737 F.Supp.2d at 914-16.

The Sixth Circuit found that plaintiffs’ NJCFA claims were premised on two different theories – one preempted and one not.  We’ll start with the good news, the preempted claim. Relying heavily on the FDA Warning Letter, plaintiffs alleged that they were misled because defendant failed to tell them that the medicine had not been recognized as safe and effective by the FDA.   737 F.Supp.2d at 915.  The Sixth Circuit summed up this claim as defendant’s failure to tell consumers that its products were illegal.  2013 U.S. App. LEXIS 3813 at *7.  Hmmm.  So how would this warning read?  Warning:  This product does not comply with requirements of the Federal Food, Drug and Cosmetic Act (“FDCA”).

Putting aside the somewhat ridiculous image conjured by the language used by the Sixth Circuit — we’re picturing a bag of marijuana with a label that says “this product is illegal” – the court’s conclusion is sound:

This theory of liability depends entirely upon an FDCA violation–i.e., the only reason Procter & Gamble’s products were allegedly “illegal” was because they failed to comply with FDCA labeling requirements. The theory is impliedly preempted by federal law.

Id.  And, it is based on Buckman and the well-settled law that individuals do not have a private cause of action for enforcing the FDCA:

The [FDCA’s] public enforcement mechanism is thwarted if savvy plaintiffs can label as arising under a state law for which there exists a private enforcement mechanism [i.e., NJCFA] a claim that in substance seeks to enforce the FDCA. Under principles of implied preemption, therefore, private litigants may not bring a state-law claim against a defendant when the state-law claim is in substance (even if not in form) a claim for violating the FDCA[.]

Id. at *5 (citations and quotation marks omitted).

Unfortunately, the Sixth Circuit did find that one of plaintiffs’ allegations supported a different and not preempted legal theory.  Plaintiffs contended that defendant misrepresented that “taking Vitamin C can blunt the effects of a cold.” The court concluded that this claim did not depend upon any determination by the FDA and would still exist in the absence of the FDCA.  In other words, that statement may be misleading.  Id. at *7-8.  Plaintiffs made the same allegations about three other of defendant’s statements, but the court found those to be neither false nor plausibly misleading.  Id. at *13-14 & n.3.  So, only a small piece of plaintiffs’ claim was resurrected.  Given the mixed bag of science on the issue, this may be a hollow victory.

Finally, the district court had also dismissed plaintiffs’ claims because they did not sufficiently allege an “ascertainable loss” as required under the NJCFA.  The court focused on the fact that plaintiffs did not allege that they did not receive what they bargained for or that the products were ineffective in treating their cold symptoms.  737 F.Supp.2d at 922-23 (citing In re Schering–Plough Corp. Intron/Temodar Consumer Class Action, 2009 U.S. Dist. LEXIS 58900 at *38-39 (D.N.J. Jul. 10, 2009) (plaintiffs “have no private cause of action where they receive the benefit of the bargain in the form of effective drugs”).  For the Sixth Circuit, efficacy wasn’t an issue.  Rather, it concluded that plaintiffs’ allegation that they would have purchased a lower-priced cold remedy was a quantifiable loss sufficient to withstand dismissal.  2013 U.S. App. LEXIS 3813 at *10.  We found it interesting that in reaching its conclusion, the district court cited decisions by New Jersey courts whereas the Sixth Circuit opted for New York and California interpretations of New Jersey law.  We’re Jersey lawyers, we’ll stick with the Jersey courts.

In case you were wondering:  American Express, Timex, Nike, and Miller Lite.