Reid v. Johnson & Johnson, No. 12-56726 (9th Cir. 2015)
Annotate this CasePlaintiff filed a false advertising lawsuit against Johnson & Johnson and McNeil Nutritionals, LLC (collectively, McNeil) challenging several of McNeil’s assertions about its product, Benecol, a vegetable oil-based spread. Specifically, Plaintiff alleged that McNeil’s claims about its product were not authorized under the FDA’s regulations and were false. Plaintiff asserted claims for relief on behalf of a putative class of Benecol purchasers under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The district court granted McNeil’s motion to dismiss, concluding that Plaintiff lacked standing because he failed to plead reasonable reliance on any misrepresentations and that Plaintiff’s claims for relief were preempted under federal law. The Ninth Circuit reversed, holding (1) Plaintiff had standing to challenge McNeil’s statements; (2) Plaintiff’s claims for relief were not preempted to the extent they were predicated on McNeil’s statements about trans fat, and a certain FDA letter was not entitled to preemptive effect; and (3) Plaintiff’s action was not barred by the primary jurisdiction doctrine. Remanded.
Court Description: Standing / Preemption. The panel affirmed in part, and reversed in part, the district court’s decision dismissing a false advertising lawsuit brought against Johnson & Johnson and McNeil Nutritionals, LLC, concerning assertions McNeil made about its product Benecol, a substitute for butter or margarine. McNeil declared on Benecol’s label that the product contained “No Trans Fat” because the amount of trans fat in Benecol was so insignificant that it was authorized under the Food and Drug Administration’s regulations to make that statement. McNeil also contended that Benecol satisfied the standards set forth in a 2003 FDA letter that authorized its plant stanol esters statements, and was entitled to preemptive effect. The panel held that the plaintiff-appellant had standing to challenge McNeil’s statements. The panel also held that appellant’s state law claims for relief were not preempted. Specifically, the panel held that appellant’s claims were not preempted to the extent they were predicated on McNeil’s trans fat statements. In addition, the panel declined to afford preemptive effect to agency actions that did not carry the force of law under United States v. Mead Corp., 533 U.S. 218, 234 (2001), and its progeny; and applying the rule, the panel held that the FDA’s 2003 letter lacked preemptive effect. Finally, the panel held that appellant’s action was not REID V. JOHNSON & JOHNSON 3 barred by the primary jurisdiction doctrine, which allows courts to stay proceedings or dismiss a complaint without prejudice pending resolution of an issue within the special competence of an administrative agency. The panel remanded for further proceedings.
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