Expand Federal Pre-emption In Supplement Claims Complaints? Not So Fast, Says Ninth Circuit
The ruling reverses district court’s dismissal of class action against CVS after determining the lower court erred in determining federal law pre-empted the consumer plaintiff’s state-law causes of action. It says while consumers are prohibited under California law from arguing that a product doesn’t provide a benefit that isn’t claimed, plaintiffs can demand substantiation for claims that are made.
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Plaintiff Claims Against Beiersdorf For ‘Unlawfully Marketed Drug’ Are Preempted By FDCA, Court Rules
After five and a half years, three dismissal motions and one appeal, Beiersdorf’s prevailed on 15 April by summary judgment in a proposed class action alleging that its Nivea Skin Firming Hydration Body Lotion is an unlawfully marketed drug. Of course, the plaintiff still could appeal.
Beiersdorf’s Long Court Battle Over Nivea ‘Drug’ Claims May Be Ending; In Similar Case, L’Oreal May Settle
The Beiersdorf and L’Oreal cases, both pending in California federal courts, have important implications for the cosmetics industry and its use of benefit claims that test statutory boundaries between unapproved drug products and cosmetics.
Following the recommendation of Solicitor General Donald Verrilli, the Supreme Court has declined to review Allergan v. Athena Cosmetics, a case examining if the Federal Food, Drug and Cosmetic Act preempts an unfair competition claim in California characterizing Athena's RevitaLash products as unapproved drugs. Athena predicts a "torrent of novel and disruptive litigation" could ensue.