No, your DDL bloggers are not offering a money-back guarantee—although we suppose offering one would not cost us anything, since reading the blog is free.  For enterprises that actually sell products though, the story is sometimes different, and many product sellers do guarantee satisfaction—or your money back.  Moreover, when those guarantees are unrestricted, we have a difficult time seeing how consumers could ever file lawsuits claiming they were overcharged.  All they had to do was ask for refunds, without the need for litigation or exorbitant claims for attorneys’ fees.  Case closed.

That is what happened a little while back in a short-but-smart order from a New York trial court.  In Scott v. Walmart, Inc., No. EF012051-2025, 2026 WL 2561736 (N.Y. Sup. Ct. July 28, 2026), the court dismissed a consumer class action brought by the purchaser of an over-the-counter sleep aid.  Because the seller offered a money-back guarantee, the purchaser/plaintiff had no standing to sue.  And, federal law preempted the claims to boot.

In Scott, the OTC product’s label said the product was “non-habit forming.”  The plaintiff alleged that statement was misleading because the product’s active ingredient allegedly could elevate the user’s mood, which could cause the user to want to use the product more.  Now mind you, this plaintiff did not allege that he actually experienced these sensations, or experienced any alleged injury at all.  He alleged instead that he paid more for the product because of the “misleading representations” and thus sought a partial refund for himself and his proposed class.

The court was having none of it.  First, the product seller offered an unrestricted money-back guarantee under which purchases could return the package for a full refund.  Sure, if there were strings attached, perhaps the purchaser could allege an injury in fact under New York’s consumer protection statutes.  But here the guarantee was unrestricted.  As a result, the court concluded that “Plaintiff herein would likewise be fully compensated by virtue of [the defendant’s] unrestricted money-back guarantee for the Product and therefore, having suffered no injury on fact, he lacks standing.”  Scott, at *4.

Second, even if the plaintiff had alleged a cognizable injury, federal law preempted his claims in any event.  As the court explained, Congress has created a national and uniform scheme to protect consumers from fraud or misrepresentations in the sale of food, drugs, and cosmetics.  Moreover, the FDCA contains an express preemption clause that bars states from establishing any requirement for OTC drugs that is “different from or in addition to, or that is otherwise not identical with” federal requirements.

Here, the FDA regulates the OTC product at issue through an FDA Monograph, which sets forth federal requirements for product labeling.  Because the plaintiff’s lawsuit would require the product seller to include different or additional information on a federally approved drug label, the plaintiff’s state-law claims were preempted.  In so holding, the court rejected precedent from our home district, the Northern District of California, which ruled that similar claims were not preempted because the Monograph did not explicitly address whether the “non-habit-forming” statement is misleading.  The New York court correctly saw it differently, and it held that if the FDA regulates a given subject matter—here, dependency on a certain active ingredient—then federal law “preempts all non-identical state laws within that subject matter.”  Scott, at *5.  Regulation of particular or specific statements within that subject matter is not required. 

The court closed with some choice words for the plaintiff’s counsel, who evidently favors exaggerated punctuation (lamely echoed in the title to this blogpost!!).  The court did not appreciate counsel’s attempt to denigrate defense counsel, nor counsel’s “specious attempt to cast aspersions on his adversary and to detract from the issues raised in the motion, especially in light of the disjointed and excessively punctuated submissions by Plaintiff’s counsel.”  Scott, at *5.  We will accept the court’s admonition on behalf of law bloggers everywhere.  Will our analysis be disjointed?  Usually not.  Will we excessively punctuate our pithy observations?  Never!!!!  Guaranteed, or your money back.