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When we first read what the claims were in Cohen v. Saraya  USA Inc., (E.D.N.Y. Jan. 20, 2025), we thought of the old Catskills joke about the elderly couple at dinner:  

Wife: “The food here has really gotten terrible.” 

Husband: “Yes. And such small portions.”  

The plaintiff in Cohen filed a class action complaining that the defendant deceptively marketed sugar substitutes. The allegedly deceptive representations were about “the serving size, health impact, and nutrient content levels of the Products.”   

Obviously, Cohen is a food case.  So why is the Drug and Device Law blog spilling ink on it?  Well, Cohen ends up being a nice defense preemption win under the Food, Drug and Cosmetics Act. The plaintiff argued that the defendant lied about its products and listed incorrect servings sizes on the product label in violation of Food and Drug Administration (FDA) regulations. We usually talk about the D in the FDA, but the F is at least as big a part of the FDA’s wheelhouse (maybe bigger?  The F, after all, does come first).  A rising FDCA preemption tide lifts all boats piloted by defense hacks.  There might be some ideas in food preemption worth stealing by drug defense lawyers. Or maybe a good food preemption case such as Cohen will merely inspire jealousy. Why can’t drug preemption be as vigorous?  Either way, the magistrate judge’s food preemption analysis in Cohen gives us something to chew on as we dream our preemption dreams. 

The class action complaint alleged violations of New York’s consumer protection statute (New York General Business Law sections 349 et seq). It also included a claim for unjust enrichment.  Among the items of relief sought was an injunction against the allegedly false advertising.  The plaintiff lawyers had also brought similar claims under California law in S.D. Cal., and the defendant in Cohen asked EDNY to stay the Cohen case pending resolution of the S.D. Cal. case. But the Cohen defendant got something better — complete dismissal. 

The Cohen plaintiff alleged that certain unspecified “testing” showed that the defendant’s food labeling misstated the number of calories per serving for the defendant’s artificial sweetener.  The complaint alleges that for some period of time the product label listed a serving size that was too small. You’ve probably heard of similar claims before. Back in the bad old days a small potato chip bag (clearly the kind that an average American would knock back in one sitting if not one swallow) might have promised low caloric or fat amounts, but got to those low numbers by assuming consumption of only a quarter of the bag.   It was silly.  Then again, it was so silly that it was hard to believe anyone was fooled. 

The NY consumer protection claims in Cohen were dismissed with prejudice, partially on TwIqbal and partially on preemption.  The court held that the complaint failed to allege that the defendant engaged in “materially misleading” conduct. The standard is an objective one. It “requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.”  But here there was not even an adequate allegation of falsity. “[B]are, unsubstantiated allegations that separate studies, independent tests, and data results” contradict the products’ labeling “are insufficient to state a claim.”  That language has equal applicability to all testing allegations against any sort of product.  Such allegations must have factual substantiation.  This part of the opinion is where a drug and device lawyer might feel pangs of jealousy. There are too many drug or device cases where vague allegations of falsity or bad test results can get a plaintiff past the motion to dismiss stage. The more searching analysis of the Cohen court is deliciously appropriate.  Seconds, please.  To make things even more appetizing, the Cohen court supplies a nice collection of similar cases.  

Further, any potential misleading ambiguity caused by the front label regarding the amount of carbohydrates and caloric contents was “readily clarified by the back panel” of the label, which, per FDA regulations, listed the amount of carbohydrates and calories in each product.  Given that application of a sort of rule of completion, no reasonable consumer could be misled. 

The plaintiff tried to save her claim by invoking various FDA regulations, but under New York law challenged acts “cannot be recharacterized as ‘deceptive’ simply on the grounds that they violate another statute which does not allow for private enforcement.”  Violation of an FDA regulation — even assuming it is, indeed, a violation — does not make something inherently deceptive. 

Now we get to federal preemption. Importantly, the Cohen court quickly dispenses with any presumption against preemption.  Congressional intent to displace local, inconsistent food regulation is clear.  One of the plaintiff’s main beefs with the defendant’s labeling was the calculation of “net carbs.”  But because  the plaintiff could not explain how the defendant’s net carbs claim violated the federal scheme, “federal law preempts Plaintiff’s state law claims challenging Defendant’s net carbs claims.”  Similarly, the plaintiff’s attack on the defendant’s “zero calorie” claim failed.  FDA regulations permitted caloric calculations under any of five different methods.  Those regulations also offer a safe harbor permitting 20% leeway.  The plaintiff did not plead that she had tested the product under all five methods, or that every one of the test results exceeded the calorie value on the label by more than 20%.   

The unjust enrichment claim in Cohen, as in most cases alleging deceptive marketing, looked to be pure make-weight (somewhat ironic, given the claims alleged).  It rested on precisely the same allegations as the New York consumer protection claims. It was wholly duplicative and, for that reason, the magistrate judge recommended dismissal. 

Finally, the court recommended dismissal of the injunctive count for lack of standing. An injunctive claim does not arise much in personal injury cases, but does, for example, in OTC class actions.  Although past injuries may provide a basis for standing to seek money damages, they do not confer standing to seek injunctive relief unless the plantiff can demonstrate that she is likely to be harmed again in the future in a similar way.  Absent an intent to purchase the offending product in the future, a plaintiff lacks standing to seek injunctive relief.  Here, the plaintiff alleged that had she known the correct caloric and carbohydrate content of the products, she would not have purchased the products, or she would have paid less. That’s not good enough for standing. The plaintiff’s typical common injunctive “conditional promise” phraseology (e.g., I’d buy the products if their nutrient statements were accurate) was held insufficient.