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Date: 01-25-2023

Case Style:

Theda Jackson-Mau v. Walgreen Co.

Case Number: 1:18-cv-04868

Judge: Frederic Block

Court: United States District Court for the Eastern District of New York (Kings County)

Plaintiff's Attorney:

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Defendant's Attorney: Courtney Janae Peterson, Darci F. Madden, Ann Elizabeth Sternhell Blackwell, Bieta Andemariam, Stefani L. Wittenauer

Description: Brooklyn, New York civil litigation lawyers represented Plaintiff, who sued Defendant on a fraud and Truth-In-Lending theories.

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Plaintiff Theda Jackson-Mau brought this action against Walgreens for violations of New York General Business Law §349, breach of contract, and unjust enrichment. The defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendant's motion is granted in part, denied in part.

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Walgreens contended that the plaintiff's claims should dismissed based on preemption because the plaintiff did not allege that she tested the product following the proper FDA testing protocol. Walgreens claimed that the plaintiff's failure to allege compliance with FDA testing protocol is an attempt to impose labeling requirements not identical to those set forth by the FDA.

Here, the plaintiff's relevant allegations are as follows: (1) she purchased a bottle labeled Glucosamine Sulfate at Walgreens, (2) she brought the bottle to her counsel, who had the pills professionally analyzed, (3) the lab tests uncovered "that there was no Glucosamine Sulfate in the pills that were tested" despite the bottle stating the pills contained Glucosamine Sulfate, Complt. ¶21 (emphasis in original), and (4) "[i]t is implausible to consider that [the lab test] is the result of simple manufacturing variance." The plaintiff implicitly concedes that she has not alleged FDA testing compliance, but argues that compliance is not necessary at the pleadings stage. Federal preemption is an affirmative defense; therefore, the defendant bears the burden of proof. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 251 n. 2 (2011).

The Food, Drug, and Cosmetic Act ("FDCA") grants the Food and Drug Administration ("FDA") the authority to regulate food labels. 21 U.S.C. § 393(b)(2)(A). The Nutrition Labeling and Education Act ("NLEA"), which amended the FDCA, expressly preempts state laws that implement labeling requirements "not identical to the requirement of section 343(q)." 21 U.S.C. § 343-1(a).

The FDA created testing protocols for compliance with its food labelling regulations. These regulations require nutrient analyses to consist of 12 subsamples taken from "12 different randomly chosen shipping cases, to be representative of a lot." 21 C.F.R. §101.9(g). Nutrient analyses may also follow the "'[o]fficial methods of analysis of the AOAC International' or, if no AOAC method is available or appropriate, [] other reliable and appropriate analytical procedures." Id.

Circuit courts have not addressed the issue of whether dismissal is proper where the plaintiff failed to allege compliance with FDA testing protocol.1

District court caselaw is split on that issue, which has not been addressed by any district court in the Second Circuit. One body of cases has determined that if the plaintiff fails to allege compliance then dismissal is required, regardless of other allegations in the complaint.2 Another body of cases has determined that specific factual allegations, including independent testing results similar to those in our case, are sufficient to survive dismissal if they allow the court to reasonably infer the defendant's liability.3

This Court opts to deny the motion to dismiss, adopting the reasoning in the second body of cases. This is consistent with the liberal approach to pleading requirements. See Twombly, 550 U.S. at 570. The plaintiff has alleged that independent testing results determined that Walgreen's product did not contain any Glucosamine Sulfate, despite being labelled as containing such. Upon this allegation, the Court can plausibly infer the defendant's liability.

Liberally reading the plaintiff's allegations and making all inferences in the plaintiff's favor, the Court denies the motion to dismiss on preemption grounds.

Outcome: 01/25/2023 155 CLERK'S JUDGMENT in favor of International Vitamin Corporation, Walgreen Co. against Theda Jackson-Mau. ORDERED and ADJUDGED that Defendants' motion for summary judgment is granted and Jackson-Mau's motion for partial summary judgment is denied. (Signed by Jalitza Poveda, Deputy Clerk on 1/25/2023) (SG) (Entered: 01/25/2023)

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