Bourbia v. S.C. Johnson & Son, Inc.
375 F. Supp. 3d 454
S.D. Ill.2019Background
- Plaintiff brought a class action after purchasing Off! Family Care Clean Feel (picaridin-based) alleging label statements ("repels mosquitoes", "effective protection", "repels for 3–4 hours", reapply every 3–4 hours, do not apply more than three times per day) are false and misleading.
- Off! Clean Feel is EPA-registered (EPA Reg. No. 4822-536); EPA approved label claims in 2001 and later amendments adding WNV, Dengue, and Zika repellency claims after reviewing efficacy data submitted by defendant.
- Plaintiff relies on independent laboratory testing (2018) and Consumer Reports (2016) showing poor repellency against Aedes and Culex mosquitoes within one hour, and alleges he read and relied on the label when purchasing.
- Defendant moved to dismiss, arguing FIFRA preempts state-law claims and that Plaintiff’s pleadings fail under Rules 12(b)(6) and 9(b).
- The court considered FIFRA’s registration/labeling scheme, the statute’s express preemption clause (7 U.S.C. §136v(b)), and FIFRA’s misbranding prohibition in resolving whether state-law claims survive.
- Judge Crotty denied dismissal of breach of express warranty, MMWA, NY GBL §§ 349/350, and fraud claims; granted dismissal of unjust enrichment as duplicative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FIFRA preempts Plaintiff's state-law claims | Bates and FIFRA do not bar state common-law or warranty claims that parallel FIFRA misbranding or otherwise do not impose additional labeling requirements | Plaintiff's claims attack EPA-approved label and thus are preempted as they would impose labeling requirements different from FIFRA | Not preempted: claims survive to the extent they do not impose labeling requirements "in addition to or different from" FIFRA and/or allege misbranding under FIFRA |
| Breach of express warranty | Label statements created express warranties that were part of the basis of the bargain | EPA approval of label means state warranty claims are preempted or otherwise barred | Denied dismissal: express warranty claim not preempted and sufficient under NY UCC § 2-313 |
| Magnuson-Moss Warranty Act (MMWA) | Label statements constitute written affirmation/promise of performance over time; MMWA claim parallels express warranty | Same preemption and pleading arguments as to warranty | Denied dismissal: MMWA claim adequately pleaded and not preempted |
| NY GBL §§ 349 & 350 (consumer protection / false advertising) | Label statements were materially misleading and caused injury | Preempted because they would impose labeling requirements differing from FIFRA; safe-harbor applies if label complies with federal law | Denied dismissal: claims not preempted to the extent they align with FIFRA misbranding prohibition; safe-harbor inapplicable if misbranding shown |
| Fraud (Rule 9(b)) | Defendant knowingly made false representations about effectiveness inducing purchase | EPA approval defeats fraud or pleads insufficient scienter/particularity | Denied dismissal: pleadings sufficiently particular and allege facts supporting a strong inference of fraudulent intent |
| Unjust enrichment | Plaintiff seeks restitution for premium paid due to misrepresentations | Claim duplicates other pleaded claims and thus improper | Granted dismissal: unjust enrichment duplicative under New York law (Corsello) |
Key Cases Cited
- Bates v. Dow Agrosciences, 544 U.S. 431 (establishes FIFRA's preemption scope for state labeling requirements)
- Wyeth v. Levine, 555 U.S. 555 (federal approval of label does not automatically preempt state-law claims)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausibility)
- Bell Atlantic v. Twombly, 550 U.S. 544 (pleading standard for plausibility)
- Mutual Pharm. Co. v. Bartlett, 570 U.S. 472 (conflict-preemption principles)
- Corsello v. Verizon New York, Inc., 18 N.Y.3d 777 (unjust enrichment cannot duplicate other claims)