Why does that last half-inch of conditioner seem to last as long as the entire rest of the bottle? This question is merely the philosophical beginning of our morning ablutions. The time is not billable. Pity. But rinse and renewal are not irrelevant to our thinking. Fresh face, fresh mind. Some of the best ideas penetrate our noggin before we head downstairs.

Maybe some plaintiffs and their lawyers get their ideas over the bathroom sink. Consider the recent case of Critcher v. L’Oreal USA, Inc., 2020 WL 2311890 (2d Cir. May 11, 2020). Someone somewhere, whether it was a lawyer or one of the putative class members, noticed that there was a dollop of skin cream that just wouldn’t come out of the bottle. That cream, bought and paid for, was not usable. Frustrating? Sure. Fraud? Oh, come on. Maybe the lotion couldn’t escape the bottle, but a fraud claim animated by that sticky truth couldn’t escape preemption.

The plaintiffs claimed that the volume amounts listed on the skin cream bottles were lies. The “creams are not fully accessible.” Plaintiff lawyer entrepreneurs and defense hacks all learned in law school that for every wrong there is a remedy (now that’s a lie), and the plaintiff lawyers in Critcher located that remedy in the consumer protections laws of New York, Florida, Kansas, Missouri, Texas, Nevada, Maryland, and Michigan. The plaintiffs’ theory was that these state laws required an additional disclosure on the skin cream packaging, “indicating that some cream cannot be retrieved or that the cream that is accessible is less than the net quantity displayed on the package label.”

The Critcher trial court dismissed the class action complaint on three grounds: (1) preemption by the Food Drug and Cosmetic Act (FDCA), (2) preemption by the Fair Packaging Labelling Act, and (3) “no reasonable consumer” could have been deceived. Permit us a word on that last point. We all know about the recalcitrant goop at the bottom of the bottle. It doesn’t want to exit. We knew that before we dropped the bottle in our shopping cart (real or virtual). Also, whatever happened to self help? There are ways of getting at that stuff. But if you disgustedly tossed the bottle in the rubbish bin and fired up a class action lawsuit – well, you’re a very particular sort of person.

The plaintiffs appealed to the Second Circuit. That court saw the FDCA preemption as so clear that it affirmed on that ground alone, not needing to get to the other issues at all. Skin creams are cosmetics. Congress installed an expansive preemption provision covering cosmetics: “no State or political subdivision of a State may establish or continue in effect any requirement or packaging of a cosmetic that is different from or in addition to, or that is otherwise not identical with, a requirement specifically applicable to a particular cosmetic or class of cosmetics under this chapter.” The Second Circuit summarized this provision to mean that the FDCA preempts “any state law that provides for labeling requirements that are not exactly the same as those set forth in the FDCA and its regulations.” (Emphasis in original).

Did the plaintiffs’ theory that the skin cream bottles were functionally underfilled survive the FDCA preemption provision? Nope. Not even close. The plaintiffs’ proposed disclosure would clearly be different from and in addition to the FDCA requirements. That conclusion was supported by other court decisions. That conclusion was supported by common sense. Weren’t the Critcher plaintiffs just as stuck in preemption as the cream was stuck at the bottom of the bottle?

Yes.

But first, the weekly Covid-19 digression.

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We decided to extract something good from this lockdown. We planted a vegetable garden. We baked bread. We finally laid our hands on Cocchi Americano and can now make a proper Vesper. We did some Pilates. (Okay – we helped move a Pilates reformer.) And we vowed to read novels that have been on our to-do list for the last (shudder) 40 years. Brothers Karamazov and Bleak House, here we come. But our first assignment was to tackle three 19th Century authors we had somehow managed to avoid: Thackeray, Tolstoy, and Trollope. Call them The Three Towering T’s of the Baggy Novel.

We liked Vanity Fair well enough. It is a fascinating example of a writer apparently losing control of a main character. Becky Sharp is meant to be thoroughly despicable. But she’s the most interesting one in the book by a country mile. She’s talented and charming. (In the recent movie version, Reese Witherspoon played Becky Sharp. Big surprise: Witherspoon’s version of Becky isn’t so villainous.) It is only by lobbing in a suggestion around page 850 that Becky possibly murdered someone that Thackeray clinches the moral case against Becky. Similarly, in War and Peace, we felt little warmth for Tolstoy’s obvious stand-in, Pierre. To our eyes beclouded by 21st Century cynicism, flinty Prince Andrey is the more interesting figure. But, in any event, we almost forgot all of the characters after Tolstoy drowned us in his theory of history in pages 1300-96. Trollope’s Orley Park was our favorite of the three doorstop novels. First, it took up a mere 820 pages – a breeze compared to the others. Second, Orley Park is about a lawsuit involving forgery of a will. Trollope knew a little something about the legal system. That knowledge did not result in unqualified admiration. Trollope offers the following thoughts on the most talented barrister in the case:

“Considering the lights with which he had been lightened, there was a species of honesty about Mr. Chaffanbrass which certainly deserved praise. He was always true to the man whose money he had taken, and gave to his customer, with all the power at his command, that assistance which he had professed to sell. But we may give the same praise to the hired bravo who goes through with truth and courage the task which he has undertaken. I knew an assassin in Ireland who professed that during twenty years of practice in Tipperary he had never failed when he had once engaged himself. For truth and honesty to their customers – which are great virtues – I would bracket that man and Mr. Chaffanbrass together.”

Now, some of you might equate lawyer Chaffanbrass to modern day corporate defense hacks. But isn’t his profile at least as applicable to plaintiff lawyers who whip up all species of prejudice against their opponents, whether or not there is any connection to the issues ostensibly at hand?

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It would take more than the great Chaffanbrass to steer clear of preemption in the Critcher case. The plaintiffs contended that “the state laws implicated by their claims would merely impose labeling requirements consistent with those already in the FDCA – that is, not ‘different from’ or into addition to’ the FDCA requirements.” The plaintiffs argued that there are general FDCA requirements that labels not be “false and misleading in any particular” and that containers not be “formed, or filled to be misleading.” The problem with this position is that the FDA has already promulgated regulations specifically setting out information on labels necessary to avoid misleading consumers. Some of those regulations involve the net quantity of the product in a container. That specificity, coupled with the Congressional “broad, categorical statement of preemption in the FDCA” meant that the plaintiffs’ requested relief looked like “additional” and “different” requirements that would “disrupt what Congress intended to be a uniform – and federally led – regulatory scheme.”

The plaintiffs also argued that the skin cream labels were “defective” – even aside from being misleading. But that argument was a post hoc maneuver to elude preemption; it was not included in the complaint. Moreover, a new label on the cause of action could not erase the reality that the claim was about the label. And that labeling claim could not “avoid the sweeping force of the FDCA.”

The Second Circuit affirmed the district court’s dismissal of this blemished lawsuit.