Today’s case, Kouyate v. L. Perrigo Company, 2026 WL 591874 (W.D. Mich. Mar. 3, 2026), is the latest entry in the ever-growing pile of meritless benzene OTC class actions. This time, the target is acne treatments containing benzoyl peroxide (BPO), with the now-familiar allegation that BPO degrades into benzene during storage and shipping. If that sounds familiar, it should. Back in October, we covered dismissal of this very plaintiff’s nearly identical lawsuit against a different manufacturer. Then, we suggested that despite a steady stream of preemption dismissals, more of these cases were likely on the way. Not only were we right, but here we have the same plaintiff trying again in a different court against a different defendant. At some point, the definition of insanity starts to feel less like a cliché and more like a litigation strategy.

In this new installment, defendant moved to dismiss on both preemption and standing grounds. Standing survived. Preemption did not. And, in a bit of poetic symmetry, plaintiff’s standing theory helped seal the fate of his claims.

On standing, defendant argued that plaintiff’s alleged injury was hypothetical as opposed to “actual or imminent.” He never tested the products he purchased and instead relied on the presence of benzene found in generalized testing of BPO products. Normally, that sort of leap doesn’t clear the Article III hurdle. But here, the court accepted plaintiff’s allegation that defendant “always manufactured, stored and transported the Products in the same manner,” which was enough to infer “widespread or extensive contamination.” Id. at *3-4.

That was enough—for standing purposes. But that same allegation created a preemption problem plaintiff could not escape.

For OTC drugs, the FDCA expressly preempts all state court claims that impose requirements “different from or in addition to” federal requirements. 21 U.S.C. §379r(a). Here, those federal requirements are set out in the FDA’s monograph, dictating what goes on the label and what warnings are required. Therefore, claims that the product should have been designed differently or labeled with additional warnings would impose requirements “different from or in addition to” federal law and are expressly preempted. Plaintiff tried several familiar detours around that roadblock—all hinging on allegations that defendant’s labeling and sale of its products violated FDA regulations.

First, he argued the product was “adulterated” because benzene is a “decomposed substance” prohibited by general FDCA regulations. Id. at *8. The court was not persuaded. In context, the statutory language—paired with terms like “filthy” and “putrid”—targets organic decomposition, not the sort of chemical breakdown alleged here. Benzene, in other words, is not that kind of “decomposed substance.”

Next came misbranding. Plaintiff claimed the label failed to disclose that the product might be dangerous due to the presence of benzene. But monograph compliance forecloses that argument. A product that satisfies the FDA’s labeling requirements is not misbranded simply because a plaintiff disagrees with the agency’s safety determination. Id. Recasting the argument as one about manufacturing, storage, and shipping conditions did not help. Plaintiff never identified any specific practices that supposedly caused degradation. Instead, he alleged that degradation occurs under “normal conditions”—the very conditions the FDA presumably considered when approving BPO for OTC use. That theory runs headlong into the FDA’s conclusion that these products are safe and effective. Id.

Which brings us to the most interesting twist–plaintiff’s standing theory comes back to haunt him. To establish standing, plaintiff needed to allege that benzene formation is widespread—essentially inevitable under ordinary conditions—so the court could infer it was present in the products he bought. But to avoid preemption, plaintiff needed to argue the opposite: that benzene formation depends on atypical, manufacturer-specific conditions and doesn’t undermine the FDA’s safety determination. The court wasn’t persuaded that plaintiff could have it both ways. If degradation is universal, then the claims challenge the FDA’s conclusion that BPO is safe. If it’s not universal, then plaintiff’s standing theory falls apart. Id. at *9. Pick your poison. Either way, the claims don’t survive.

Plaintiff’s remaining arguments fared no better. Plaintiff’s claim that the products were mislabeled for failing to list benzene as an inactive ingredient failed because benzene is not an “inactive ingredient” under FDA definitions. It is, at most, an unintended byproduct. Id. at*9-10. And the attempt to recast the case as one about CGMP violations went nowhere, because those allegations still rested on the same core theory that conflicts with the FDA’s monograph determination. Id. at *10. CGMPs are not a back door around preemption when the front door is firmly shut.

So, despite clearing the low bar the court set for standing, the case ultimately met the same fate as its predecessors–dismissal on preemption grounds. So where does that leave us? Right where we were in October. Watching these benzene OTC class actions pile up—and pile out. The theory has not changed. The result has not changed. And yet the filings keep coming. For now, at least, the preemption wall is holding—but we are not betting that we have seen the last attempt to run straight into it.