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Chavez v. Church & Dwight Co., Inc.

United States District Court, N.D. Illinois, Eastern Division

May 16, 2018

DAVID CHAVEZ, individually and on behalf of others similarly situated, Plaintiff,
CHURCH & DWIGHT CO., INC. Defendant.


          John J. Tharp, Jr. United States District Judge.

         With due respect to Mae West, sometimes too much of a good thing isn't wonderful. In this consumer fraud action, Defendant Church & Dwight Co., Inc. (“Church”) is accused of understating the amount of folic acid found in its Vitafusion B Complex Adult Vitamin Gummies dietary supplement (“Vitafusion”). Plaintiff David Chavez, an Illinois consumer, alleges that Vitafusion contains more than three times the amount of folic acid per serving declared on the label and that this overabundance is potentially harmful. Chavez seeks, on behalf of himself and several classes of consumers, including nationwide and multistate classes, to hold Church liable for deceptive business practices, fraud, breach of express and implied warranties, and unjust enrichment. Church responded to the amended complaint by filing a motion to dismiss under Rule 12(b)(6), arguing that Chavez's claims are preempted by federal nutrition labeling laws. Alternatively, Church asks the Court to abstain from hearing this case until the Federal Drug Administrative (“FDA”) resolves a technical issue at the heart of this dispute. And, as a last resort, Church argues that Chavez cannot represent a class of consumers outside of Illinois due to a lack of standing and personal jurisdiction. Having reviewed the parties' submissions, the Court grants in part and denies in part the motion to dismiss.


         Church is a publically traded Delaware corporation based out of New Jersey that manufactures and distributes household products, including dietary supplements. (Am. Compl. ¶¶ 19, 36, ECF No. 6.) Vitafusion is one of many dietary supplements that Church produces and sells. (Id. ¶¶ 1, 39-40.) Church markets Vitafusion as an excellent source of certain B vitamins, including folic acid.[2] (Id. ¶ 40.) According to the nutrition facts listed on the back of a bottle of Vitafusion, one serving (that is, one gummy) provides 400 mcg[3] of folic acid, [4] which is equal to 100% of one's “Daily Value” of the vitamin. (Id. ¶¶ 41-42.) Church also advertises on its website that it delivers “high quality dietary supplements in the gummy vitamin industry” and “place[s] the utmost importance on nutritional accuracy and high product quality.” (Id. ¶ 38.)

         Testing by Chavez's counsel shows that Vitafusion gummies contain 1232.2 mcg of folic acid-more than three times the amount listed on the label. (Id. ¶ 46.) According to the Office of Dietary Supplements at the National Institute of Health (“NIH”), the Upper Tolerable Intake Limit (“UTIL”) for folic acid in a supplement is 1, 000 mcg. (Id. ¶¶ 32-33.) Consuming more than this amount may cause adverse health effects and, “in some circumstances, ” could “be dangerous.” (Id. ¶¶ 29, 33.) The effects include, among others, increasing the risk of heart attack, increasing the risk of certain precancerous tumors becoming malignant, and exacerbating anemia. (Id. ¶¶ 30-33.) Chavez purchased and consumed Vitafusion on a number of occasions over the last few years believing that it would provide him with the amount of B vitamins stated on the bottle and benefit his health. (Id. ¶¶ 58-60, 62.) He alleges that he would not have done so had he known that the product contained a level of folic acid above the UTIL. (Id. ¶¶ 61, 63.)

         Chavez brought suit in March 2017 and seeks to represent three classes of Vitafusion consumers: one nationwide, one multistate, and one based in Illinois. (Id. ¶¶ 64, 66.) Although the amended complaint comprises six counts, it asserts four claims for relief. The first claim is that Church mislabels the amount of folic acid found in Vitafusion. In Counts I and II, Chavez contends that the mislabeling violates several state consumer laws, including the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”). Count III asserts that the label is fraudulent under Illinois common law, while Counts IV and V contend that the label breaches several express and implied warranties under the Uniform Commercial Code in all fifty states and the District of Columbia. Finally, in Count VI, Chavez seeks to disgorge Church's Vitafusion revenues under an unjust enrichment theory because the product is mislabeled.

         Chavez's other three claims also relate to Church's alleged mislabeling of Vitafusion, but are nonetheless distinct. His second claim for relief is that the Vitafusion label fails to disclose that it contains an “unsafe” level of folic acid, while his third claim is that Church misrepresents on its website the quality of its dietary supplements and the level of accuracy of its nutrition labels. Chavez's legal theory for these claims is that Church's lack of disclosure and online misrepresentations violate state consumer protection laws (Counts I and II) and constitutes fraud (Count III). Chavez's final claim, embodied only in Count V, is that because Vitafusion contains an unsafe level of folic acid, the supplement is unfit for consumption.

         Church responded to the amended complaint by moving to dismiss. Church argues that Chavez's claims should be dismissed or stayed on several grounds, including preemption, primary jurisdiction, lack of standing, and lack of personal jurisdiction. The Court addresses each argument in turn, beginning with preemption.


         I. Federal Preemption

         Church argues first and foremost that the amended complaint should be dismissed on federal preemption grounds. A dismissal based on federal preemption is a Rule 12(b)(6) dismissal on the merits for failure to state a claim. See Healy v. Metro. Pier & Exposition Auth., 804 F.3d 836, 840-41 (7th Cir. 2015) (citing Turek v. Gen. Mills, Inc., 662 F.3d 423, 425 (7th Cir. 2011)). Under Rule 12(b)(6), “a plaintiff must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 365-66 (7th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 366 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court “must accept as true all factual allegations in the . . . complaint and draw all permissible inferences” in Chavez's favor. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (internal quotation marks omitted) (quoting Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015)). However, “[w]hile a plaintiff need not plead ‘detailed factual allegations' to survive a motion to dismiss, he still must provide more than mere ‘labels and conclusions or a formulaic recitation of the elements of a cause of action' for [his] complaint to be considered adequate under [Rule] 8.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678).[5]

         There are three types of preemption: express preemption, conflict preemption, and field preemption. Bible, 799 F.3d at 651-52 (citing Aux Sable Liquid Prods. v. Murphy, 526 F.3d 1028, 1033 (7th Cir. 2008)). Church relies only on express preemption, which “occurs when a federal statute explicitly states that it overrides state law or local law.” Aux Sable, 526 F.3d at 1033 (citation omitted). There is a strong presumption against preemption, Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1046 (7th Cir. 2013); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (“[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act . . . .”) (internal quotation marks and citation omitted), and Church bears the burden of overcoming it, Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 309 (7th Cir. 2010) (citation omitted).

         A. Preemption under the NLEA

         The issue here is whether the amended complaint is preempted by the labeling requirements of the Food, Drug, and Cosmetic Act (“FDCA”), as amended by the Nutrition Labeling and Education Act (“NLEA”). The NLEA includes an express preemption provision that prohibits states from establishing any requirements that are “not identical to” certain federal requirements for the labeling of food and dietary supplements. 21 U.S.C. § 343-1(a); see also Krommenhock v. Post Foods, LLC, 255 F.Supp.3d 938, 951 (N.D. Cal. 2017) (discussing general framework of preemption under the NLEA).[6] In particular, the provision expressly preempts any state requirements for nutrition labeling that are not identical to the requirements of section 343(q) of the FDCA. 21 U.S.C. § 343-1(a)(4). It also preempts states from imposing requirements on nutrient-content or health-related claims made on a label that are not identical to the requirements set forth in section 343(r) of the Act. Id. § 343-1(a)(5).

         The phrase “not identical to” means that a state requirement imposes an obligation that is “not imposed by or contained in” or “[d]iffer[s] from those specifically imposed by or contained in” the FDCA or FDA regulations. 21 C.F.R. § 100.1(c)(4); see also Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982) (“Federal regulations have no less pre-emptive effect than federal statutes.”). Moreover, the Supreme Court has explained that the preemptive effect of the “requirements” language in § 343-1 “reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005). Chavez's claims then, whether rooted in positive or common state law, are preempted if they directly or indirectly impose a labeling requirement on Church that is not already “imposed by § 343(q), § 343(r), or the implementing regulations for those provisions.” Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2016 WL 1019794, at *4 (N.D. Ill. Mar. 15, 2016). Conversely, Chavez's claims survive dismissal if they merely seek to enforce those requirements; litigants may “enforce a violation of the Act as a violation of state law.” Turek, 662 F.3d at 426 (“This is important because the [FDCA] does not create a private cause of action.”); see also Beverages: Bottled Water, 60 Fed. Reg. 57076, 57120 (Nov. 13, 1995) (adding that “if the State requirement does the same thing that the Federal law does, . . . then it is effectively the same requirement as the Federal requirement” and not subject to preemption).

         B. FDA Regulation of Folic Acid Declarations

         The first step in unpacking Church's preemption defense is to determine what the FDCA has to say about the labeling of folic acid in dietary supplements. Under certain circumstances that are not in dispute here, the Act requires manufacturers to list folic acid as an ingredient on a supplement's nutrition label. See 21 U.S.C. § 343(q)(5)(F)(i); 21 C.F.R. § 101.9(c)(8)(ii); 21 C.F.R. § 101.36(b)(2). When folic acid is declared on a label, the FDCA dictates that the label include “the quantity of [folic acid] per serving.” 21 U.S.C. § 343(q)(5)(F)(ii); see also 21 C.F.R. § 101.9(c)(8)(iii) (“The quantitative amounts of vitamins and minerals, excluding sodium, shall be the amount of the vitamin or mineral included in one serving of the product.”). Moreover, the Act requires that the label accurately report the amount of folic acid found in the supplement; otherwise, the label is misbranded. See 21 U.S.C § 343(a) (“A food shall be deemed misbranded [if] its labeling is false or misleading in any particular . . . .”).

         FDA regulations specify when a labeled amount of folic acid is deemed to be accurate. Folic acid is a Class I nutrient (at least in the context of this litigation), [7] so the Court must look to 21 C.F.R. § 101.9(g)(4)(i) for guidance. Under that provision, a dietary supplement that includes a vitamin declaration “shall be deemed to be misbranded under [21 U.S.C. § 343(a)] unless” the content of the vitamin in the supplement is “at least equal to” the amount of the vitamin declared on the label. 21 C.F.R. § 101.9(g)(4)(i).[8] That is, a nutrition label is deemed inaccurate (or misbranded in FDCA parlance) when it overstates the amount of folic acid in a supplement. A supplement that contains more folic acid than the label suggests would not run afoul of this particular requirement.

         Section 101.9(g)(4)(i), moreover, is not the only regulation that bears on the accuracy of a folic acid declaration. When folic acid is understated on a label, section 101.9(g)(6) enters the fray. That provision provides: “Reasonable excesses of vitamins . . . over labeled amounts are acceptable within current good manufacturing practice.” 21 C.F.R. § 101.9(g)(6). The FDA does not define reasonable excess, but it does provide guidance on current good manufacturing practice (“cGMP”). Relevant to this dispute is a cGMP regulation that requires manufacturers to keep track of “any intentional overage amount of a dietary ingredient.” 21 C.F.R. § 111.210(e). An overage refers to the quantity of an ingredient added to ensure that the ingredient meets the amount specified on the label throughout the product's shelf life. Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements, 72 Fed. Reg. 34752, 34884 (June 25, 2007). When the FDA initially proposed this regulation, it referred to the additional amount as an “intentional excess.” Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Dietary Ingredients or Dietary Supplements, 68 Fed. Reg. 12158, 12203 (Mar. 13, 2003). But in enacting the final regulation, the FDA commented that the additional amount was more commonly known as an “overage” in the supplement industry, and so adopted that term. 72 Fed. Reg. at 34884. In either case, the FDA cautioned that the provision “is not intended to allow ...

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