Richard Loreto v. Procter and Gamble Company
515 F. App'x 576
6th Cir.2013Background
- Procter & Gamble marketed DayQuil Plus Vitamin C and NyQuil Plus Vitamin C in 2009 and faced a proposed nationwide class action under state consumer-protection laws.
- Loreto and Buffa allege P&G’s ads falsely claimed Vitamin C helps blunt cold symptoms, prompting them to pay more for the P&G products.
- Plaintiffs seek a refund and class treatment; district court dismissed under the Class Action Fairness Act and for other grounds.
- Ohio choice-of-law rules were used; New Jersey law was determined to apply to the NJ residents’ injury, and Pilgrim controls to home-state law.
- The district court also held NJ CFA claim preempted by the FDCA and separately dismissed for lack of ascertainable loss; the court addressed standing and merits.
- On appeal, the Sixth Circuit reversed in part, reviving the NJ CFA claim regarding the Vitamin C statement and affirming others; nationwide class claims were deemed futile to certify.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCA preemption of NJ CFA claim | NJ CFA claim is not preempted; misrepresentation claims stand independently of FDCA. | Some theories rely on FDCA labeling violations and are impliedly preempted; only pre-FDCA, traditional claims survive. | Partially preempted; one NJ CFA theory survives as non-preempted. |
| Choice of law for the class claims | Advertising from Ohio headquarters should apply Ohio law for all claims. | Home-state injury dictates which state's law applies; New Jersey law applies. | New Jersey law applies to the injury and claims. |
| Ascertainable loss under NJ CFA | Difference in price between P&G product and cheaper alternatives constitutes ascertainable loss. | Plaintiffs did not allege a loss absent product’s effectiveness; no loss shown. | District court erred; there is ascertainable (economic) loss. |
| Standing to sue under NJ CFA on the asserted claim | Plaintiffs have injury in fact from paying a premium due to misrepresentation. | Standing requires concrete injury; misrepresentation alone may be insufficient. | Standing satisfied for the revived NJ CFA claim. |
Key Cases Cited
- Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (U.S. 2001) (implied preemption when FDCA precludes private state-law action)
- Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) (home-state law controls class damages under choice-of-law rules)
- Thiedemann v. Mercedes-Benz USA, LLC, 872 A.2d 783 (N.J. 2005) (ascertainable loss requires actual loss and measurable damages)
- Bosland v. Warnock Dodge, Inc., 964 A.2d 741 (N.J. 2009) (ascertainable loss framework under NJ CFA)
- New Jersey Citizen Action v. Schering-Plough, 842 A.2d 174 (N.J. Super. Ct. App. Div. 2008) (material misrepresentation under NJ CFA requires statements of fact)
- Desiano v. Warner-Lambert Co., 326 F.3d 339 (2d Cir. 2003) (false drug-marketing statements may be actionable even if FDA regulates core claims)