Crozier v. Johnson & Johnson Consumer Companies, Inc.
901 F. Supp. 2d 494
D.N.J.2012Background
- Plaintiffs allege NJCFA violations and implied warranties related to Neosporin NEO TO GO! first aid antiseptic spray sold by J&J.
- Two nearly identical state-court complaints were removed to federal court and consolidated for pre-trial purposes under CAFA jurisdiction.
- The spray contains benzalkonium chloride (non-antibiotic); plaintiffs contend branding mimics Neosporin products with antibiotics to mislead consumers.
- Plaintiffs claim the price is unreasonably high relative to antiseptics due to alleged antibiotic misrepresentation; no express antibiotic claim is on the label.
- Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(6) arguing labeling preemption and failure to plead NJCFA and warranty claims with particularity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are labeling claims preempted by federal law? | NJCFA claims target advertising/labeling; labels must reveal active ingredients; preemption arguable only if conflicting with FDA. | FDCA § 379r preempts state labeling requirements for OTC drugs; labeling claims are preempted. | Labeling claims preempted; marketing claims may proceed with cure; warranty claims dismissed. |
| Do NJCFA claims fail for lack of misrepresentation and reliance? | Signature Gold Mark/trade dress misleads consumers into thinking antibiotics are present. | Plaintiffs failed to plead when/where they saw ads or relied on branding; misrepresentation not pled with particularity. | NJCFA claims dismissed without prejudice for lack of particularized pleadings; opportunity to amend. |
| Whether implied warranties claims survive given lack of defect evidence? | Product lacked antibiotics and thus failed to meet merchantability/fitness for purpose. | Claims improperly rest on advertising; no defect alleged affecting ordinary purpose. | Breach of implied warranty claims dismissed with prejudice. |
Key Cases Cited
- Wyeth v. Levine, 555 U.S. 555 (U.S. 2009) (prescription labeling preemption does not extend to OTC drugs)
- In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) (standard for considering extrinsic materials on motion to dismiss)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (U.S. 1992) (Supremacy Clause and preemption framework)
- Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) (NJCFA requires proof of unlawful conduct, causation, and ascertainable loss)
- Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590, 581 A.2d 91 (N.J. App. Div. 1990) (reliance requirements in NJCFA for manufacturer liability)
- Lieberson v. Johnson & Johnson Consumer Cos., 865 F. Supp. 2d 529 (D.N.J. 2011) (puffery and pleading specificity under NJCFA; Rule 9(b) implications)
- Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84 (D.N.J. 2011) (NJCFA claims sound in fraud; Rule 9(b) pleading applies)
- Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) (unlawful conduct categories and causation in NJCFA)