Guest Post - The Sweet Smell Of Preemption Overcomes Plaintiffs' Stinky Consumer Fraud Claims

What follows is a guest post from Reed Smith's Andrew Stillufsen, an associate in our Princeton office. He discusses a new FDCA preemption case involving a cosmetic, rather than a drug or device. As always, Andrew is entitled to all the credit (and any blame) for the contents of this post.

Take it away Andrew, and beware Sir Nose D'voidoffunk.

The ingenuity of our friends in the plaintiffs' bar is never-ending and always fascinating, like Cyrano de Bergerac's prodigious proboscis. For example, this post is about a case brought by some resourceful lawyers who did not turn up their nose at the possibility of a contingent fee based on the weight of a stick of deodorant. Perhaps they were inspired by television ads showing average-looking twenty-somethings apply a certain deodorant and instantly becoming the best-looking (and best-smelling) people in the room. Perhaps not. In any case, one thing is certain: the court did not like what it sniffed after plaintiffs' claims were unwrapped, and so applied the sweet smell of preemption. Another thing is also certain: an overload of olfactory references appear in this post.

Before we nosedive into the court's preemption analysis, let's take a look at plaintiffs' claims. This putative consumer fraud class action was brought in the Southern District of New York and alleged the usual potpourri of violations of consumer protection laws, as well as common law claims for breach of warranty, negligent misrepresentation and unjust enrichment. Plaintiffs alleged that the defendant deceived them by (a) misstating the actual weight of usable product in each stick of its deodorant, (b) misstating the total net weight of each stick, and (c) not stating the amount of non-functional slack fill in each stick. Bimont v. Unilever United States, Inc., 2015 US Dist. Lexis 119908, at *2 ( S.D.N.Y. Sept. 9, 2015).

Defendant's motion to dismiss was likely inspired by the fragrance of preemption, since the deodorants at issue were both cosmetics and OTC drugs, and thus subject to the FDCA and FDA regulations. This blog has posted before on preemption, cosmetics and OTC drugs, including sunscreen twice, and mouthwash.

The court began its preemption analysis with the refrain familiar to readers of this blog that "there is no private right of action to enforce the FDCA." Id. at *3. Furthermore, "the FDCA explicitly forbids the states [from establishing] any requirement for labelling or packaging of a cosmetic that is different...