RONDA KAUFMAN, on behalf of herself and all others similarly situated Plaintiff, Appellant,
CVS CAREMARK CORPORATION; CVS PHARMACY, INC., Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge]
D. Penny, with whom Goldman Scarlato & Penny, P.C., was
on brief, for appellant.
M. Andalman, with whom A&G Law LLC was on brief, for
Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
Pharmacy, Inc. ("CVS") sells a Vitamin E dietary
supplement with a label that touts the product as supporting
"heart health." Having purchased CVS's Vitamin
E product, Ronda Kaufman alleges that CVS's label
deceives consumers because no scientifically valid studies
show that the label's "heart health" statements
are both truthful and not misleading. Finding that federal
law does not preempt Kaufman's effort to maintain this
action under New York's consumer protection law, we
reverse the district court's order dismissing
the district court dismissed this lawsuit on a motion to
dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6),
our review is de novo and we assume that the facts alleged in
the complaint, plus reasonable inferences drawn from those
facts, are true. In re Celexa & Lexapro Mktg. &
Sales Practices Litig., 779 F.3d 34, 39 (1st Cir. 2015).
Kaufman purchased CVS-brand Vitamin E 400 International Units
("IU") Softgels (100 count) at a CVS located in
Plainview, New York. The bottle containing the Vitamin E
product bore the following label:
alleges that in deciding to purchase the product, she relied
on the label.
now claims that there are no scientifically valid studies
supporting CVS's "heart health" statements.
Rather, she alleges that various studies evaluating
Vitamin E "demonstrate that vitamin E and vitamin E
supplementation offer no cardiovascular benefit" and
"do not reduce the risk of suffering a cardiovascular
event, such as a heart attack, nor [do they] reduce the risk
of dying from cardiovascular disease." She adds that one
study reflects "that those taking vitamin E had higher
rates of heart failure and were more likely to be
hospitalized for heart failure, " while another study
found "an increase in mortality that progressively
increased as daily dosage exceeds 150 iu." The complaint
further states that "[a]ll variations of [CVS's]
pill-type vitamin E products exceed the 150 iu level shown to
increase mortality in this study." As a result, she
alleges, CVS's representation that its product supports
heart health is misleading.
marshalled these allegations in service of a putative class
action complaint that advances two counts at issue on appeal:
violation of the New York Consumer Protection Act, N.Y. Gen.
Bus. Law § 349 ("NYCPA section 349"), which
makes unlawful "[d]eceptive acts or practices in the
conduct of any business, trade or commerce or in the
furnishing of any service" in New York, id.
§ 349(a), and a piggy-back common law claim of unjust
enrichment. The district court found that federal law
preempts both of these statements because CVS's label on
its Vitamin E product complied with labeling requirements for
dietary supplements under the Federal Food Drug and Cosmetic
Act ("FDCA"), 21 U.S.C. §§ 301 et
seq.; see also id. § 343-1(a)(5).
Kaufman v. CVS Caremark Corp., No.
14-216-ML, 2016 WL 347324, at *8 (D.R.I. Jan. 28, 2016).
parties initially debate whether the district court erred in
requiring Kaufman to state with particularity the
circumstances constituting the alleged deception at issue in
this case under Federal Rule of Civil Procedure 9(b). We
agree with CVS that Kaufman waived any objection to that
requirement, having failed twice to argue in the district
court that Rule 9(b) did not apply. See United
States v. Argentine, 814 F.2d 783, 791
(1st Cir. 1987). At the same time, we also find that the
applicability of Rule 9(b) has no bearing on any possible
disposition of this appeal. The circumstances to be stated
with particularity under Rule 9(b) generally consist of
"the who, what, where, and when of the allegedly
[misleading] representation." Alt. Sys. Concepts,
Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004)
(quoting Powers v. Bos. Cooper
Corp., 926 F.2d 109, 111 (1st Cir. 1991)). CVS makes no
argument that the complaint fails to provide this
particularity. And, indeed, it does contain sufficient
particularity: CVS is the "who"; the heart health
statements are the "what"; the label is the
"where"; and the occasion on which Kaufman
purchased the product is the "when." Therefore, as
CVS acknowledges, "[t]he District Court's decision
did not turn on whether the applicable pleading standard was
pursuant to Fed.R.Civ.P. 8(a) or 9(b)." Neither does our
the pivotal question on this appeal is whether Kaufman's
complaint plausibly describes conduct by CVS that fell
outside the preemptive safe harbor provided by federal law.