MEMORANDUM DECISION AND ORDER
This case is before the Court on defendant Bayer Healthcare LLC’s (“Bayer” or “defendant”) motion to dismiss the Master Complaint (“Complaint”). The eleven above-captioned individual actions have been transferred to a multidistrict litigation docket established to consolidate, for purposes of coordinated pretrial proceedings, cases arising from claims that defendant misrepresented the virtues of Bayer Women’s Low Dose Aspirin + Calcium (“Bayer Calcium”), which combines low-dose aspirin with calcium, and Bayer Aspirin with Heart Advantage (“Heart Advan *362 tage”), which combines low-dose aspirin with phytosterols. 1
Plaintiffs allege that Bayer marketed the combination products as if they had been approved by the Food and Drug Administration (“FDA”); as if they were appropriate for long-term use; and as if Bayer Calcium were a source of calcium and Heart Advantage provided cardiovascular benefits. However, the combination products were not FDA-approved and, plaintiffs claim, were inappropriate for long-term use and incapable of delivering the health benefits touted on their packaging. Plaintiffs argue that someone could not take either combination product as part of a daily low-dose aspirin regimen and get both the recommended daily dose of aspirin and the recommended daily dose of phytosterols or calcium. Someone taking Heart Advantage as part of low-dose aspirin regimen would get the recommended dose of aspirin, but only half the recommended amount of phytosterols. Similarly, someone taking Bayer Calcium as part of a low-dose aspirin regimen would get the recommended daily dose of aspirin, but only one-third of the recommended amount of calcium. Plaintiffs assert that Bayer’s labeling was confusing because it commingled statements about the virtues of low-dose aspirin with those about the health benefits of calcium and phytosterols. In sum, rather than the whole being greater than the sum of its parts, the combination products, according to plaintiffs, were less.
Defendant presents several alternative grounds for dismissing plaintiffs’ claims, the essence of which is that plaintiffs have alleged nothing more than a violation of the Food, Drug, and Cosmetic Act (“FDCA”) 21 U.S.C. § 301 et seq. (2009), which does not provide a private cause of action. In the alternative, defendant argues that plaintiffs’ claims allege insufficient theories of injury and damages.
For the reasons set forth below, defendant’s motion is denied.
BACKGROUND
Bayer is a major pharmaceutical company that has “been associated with aspirin” for over 100 years and describes itself as the “worldwide leader in the field of nonprescription drugs.” One of its marquee products is low-dose aspirin. Bayer markets its aspirin products at the website www.wonderdrug.com and has long touted the benefits of a daily regimen of low-does aspirin. Aspirin is an analgesic, one of a class of drugs that act in various ways on the nervous system to decrease pain. Low-dose aspirin may be sold over-the-counter (“OTC”) subject to an FDA monograph, which specifies what claims a manufacturer can make about the drug. 21 C.F.R. § 330.13 (2009). An aspirin manufacturer making approved claims does not need to go through the new drug approval (“NDA”) process and can rely on the FDA monograph. In other words, any manufacturer can sell aspirin under the FDA monograph for aspirin as long as that manufacturer makes only claims permitted by the monograph. 2 All such a manufacturer *363 need do is include standard directions and warnings, including that a long-term aspirin regimen should be pursued only under a doctor’s supervision. Bayer sells its low-dose aspii'in under the FDA monograph.
The FDA has approved unqualified health claims for calcium, for reducing the risk of osteoporosis, and phytosterols, for lowering cholesterol and reducing the risk of heart disease. Id. at §§ 101.72, 101.83. The FDA only permits unqualified health claims to be made after a “significant scientific agreement, among experts qualified by scientific training and experience ... that the claim is supported by such evidence.” Twelve nutrients have won this approval. Once awarded an unqualified health claim, the product’s label is entitled to vaunt the nutrient’s health benefits. 21 U.S.C. § 343(r) (2006). Calcium, the FDA found, reduces the risk of osteoporosis by contributing to peak bone mass. Accordingly, certain food and dietary supplements that provide at least 20 percent of the recommended daily amount of calcium may take advantage of the unqualified health claim and advertise the benefits of calcium. 21 C.F.R. § 101.72. Likewise, certain food and dietary supplements with the requisite levels of phytosterols can place “[a] health claim associating diets that include plant sterol/stanol esters with reduced risk of heart disease” on their labels. Id. at § 101.83.
Defendant has extolled Bayer Calcium and Heart Advantage as the sum of their respective parts. In addition to the qualified health claims about low-dose aspirin, Bayer Calcium employs the health benefit claim authorized for high-calcium foods and Heart Advantage employs the health benefit claim authorized for foods high in phytosterols. Each tablet of Bayer Calcium contains 81 mg of aspirin, the amount recommended for a daily aspirin regimen, and provides 300 mg of elemental calcium. It is labeled as a “PAIN RELIEVER/CALCIUM SUPPLEMENT” and for “ASPIRIN REGIMEN” use. The package labeling states that Bayer Calcium “Provides 300 mg of Calcium Which Helps Strengthen Bones To Help Fight Osteoporosis.” There is a glass of milk next to the health benefit statements on the label and the product’s name, which plaintiffs contend “represents that, like milk, Bayer Calcium is a source of dietary calcium.” Although one tablet of Bayer Calcium is the recommended (and advertised) dose for someone on a low-dose aspirin regimen, that would provide only 300 mg of calcium, a fraction of the recommended daily dose. 3
Bayer Calcium’s label employs the health claims approved for calcium, including which groups are at an increased risk of developing osteoporosis (menopausal women and those with a family history of the disease) and that “[a]dequate calcium intake” is one factor that “may reduce the risk of osteoporosis.” 21 C.F.R. § 101.72. The packaging also advertises Bayer Calcium as a source of aspirin and recites the health claims used on Bayer Low-Dose Aspirin: “Aspirin Protects Your Heart by Keeping Your Blood Flowing Freely.” Additionally, identical to the packaging of Bayer Low-Dose Aspirin, the insert recites aspirin’s cardiovascular benefits, in- *364 eluding reducing the risk of stroke and heart attacks. According to plaintiffs, there is nothing to alert a consumer that the aspirin benefits recited in the insert were FDA-approved for use in low-dose aspirin, but not Bayer Calcium. 4
On October 27, 2008, the FDA sent a letter warning that, because of Bayer Calcium’s combined active ingredients and their combined labeled uses, it was a new drug that could not be sold OTC. Although each of Bayer Calcium’s component parts could be sold OTC, the FDA’s letter stated that the combination product would be subject to NDA because no other product with those ingredients and marketed for those uses had previously been commercially marketed. Current marketing, the FDA advised Bayer, misbranded the combination product because it lacked “directions under which the layman can use a drug safely for the purposes for which it is intended.”
Bayer introduced Heart Advantage in early 2008. Each tablet contains 81 mg of aspirin, the standard daily dose, and 400 mg of phytosterols, half the recommended daily dose. Heart Advantage’s packaging implies, plaintiffs contend falsely, that the combination product has all the virtues of its component parts. 5 The label advertises Heart Advantage as Bayer Aspirin “Plus Cholesterol Lowering Phytosterols,” and describes the product as an “analgesic/phytosterol supplement.” It distinguishes Heart Advantage as “[t]he only product that contains ... aspirin, to protect your heart by keeping your blood flowing freely [and] Phytosterols, to help lower bad cholesterol.” The label contains the FDA-approved health benefit claim that “[d]ietary supplements or food containing at least 400 mg of Phytosterols eaten twice a day with meals for a daily total intake of at least 800 mg, as part of a die t low in saturated fat and cholesterol, may reduce the risk of heart disease by lowering blood cholesterol.” The FDA sent a warning letter identical to that for Bayer Calcium regarding Heart Advantage.
Each of the five named plaintiffs bought either Bayer Calcium or Heart Advantage after becoming concerned about their own health and seeing the combination product’s promises — decreased risk of osteoporosis or lowered cholesterol. Plaintiff Robert Nosbich’s allegations, substantively identical to those of his co-plaintiffs, are illustrative. 6 Nosbich, an Illinois resident, saw Heart Advantage at his local pharmacy, read the claims about lowering cholesterol, and, in reliance on those promised benefits, began taking Heart Advantage. From mid-2008 to early 2009, Nosbich purchased about one 30-pill-bottle per month. Nosbich’s allegations of misrepresentations and harm are intertwined-that Bayer misrepresented Heart Advantage’s *365 merit s, its ability to actually decrease his cholesterol; and that Bayer misrepresented the fact that Heart Advantage was FDA-approved. But for these misrepresentations, Nosbich avows, he never would have purchased the product at all. 7 Had Nosbich known that taking a single tablet of Heart Advantage as his low-dose aspirin regimen would only provide half the recommended daily amount of phytosterols, which he argues is insufficient to lower cholesterol, then he would have purchased other low-dose aspirin available for a fraction of the price. A bottle of 60 tablets of Heart Advantage costs $10.99, approximately $0.18 per-pill, 8 whereas other low-dose aspirins cost as little as $4.99 for two bottles of 120 pills each, or just $0.02 per pill. Alternatively, if Nosbich had taken two tablets of Heart Advantage a day, as he would have in order to get the recommended daily dose of phytosterols, he would have ingested twice the recommended daily amount of aspirin, which can lead to health dangers of its own. 9 In sum, Nosbich alleges that it would have been impossible for him to get both the recommended daily amount of low-dose aspirin and phytosterols from Heart Advantage.
The named plaintiffs have brought this action on behalf of a putative nationwide class of consumers. They argue that while none suffered physical harm, all were injured in substantially the same sense— they paid a premium for a product that they thought was superior to other low-dose aspirins because of defendant’s false representations. Plaintiffs assert that had they known that the combination products were not FDA approved and, because of the inadequate amounts of calcium or phytosterols, could not provide the health benefits touted on their labels, they never would have purchased them at all. Accordingly, plaintiffs claim they are entitled to a full refund of the purchase price.
The named plaintiffs have brought suit under the consumer protection laws of their various states of residency (New York, New Jersey, California, and Illinois) and, in the alternative, similar statutes of some 43 other states. Plaintiffs also claim that defendant’s misrepresentations violated express and implied warranties protected by state law. In addition to the nationwide class, whose claims plaintiffs argue will be governed by New Jersey law, plaintiffs have proposed a California subclass, on behalf of which they claim violations of the California Civil Code and Business and Professional Code.
STANDARD OF REVIEW
Bayer moves to dismiss for failure to state a claim upon which relief may be granted. The standard of review for a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is well known and need only be restated briefly. The Federal Rules require that a complaint set forth “a short and plain state
*366
ment of the claim showing that the pleader is entitled to relief.” 8(a)(2). Plaintiff need only “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly,
Complaints that sound in fraud, however, must meet a higher threshold than Rule 8’s notice pleading. Pursuant to Rule 9(b), a plaintiff claiming fraud “must state with particularity the circumstances constituting fraud.” The purpose of the heightened pleading standard is threefold; to provide defendant notice of the suit, protection from baseless charges, and sufficient information to frame a response.
ATSI Commc’ns. Inc. v. Shaar Fund, Ltd.,
Plaintiffs pursuing fraud claims pursuant to state consumer protection laws may be held to Rule 9’s heightened standard.
See Ramirez v. STi Prepaid LLC,
*367 DISCUSSION
Defendant argues that plaintiffs’ allegations that the combination products were misleadingly labeled boils down to nothing more than charges that Bayer violated the FDCA by selling products that were not FDA approved, an impermissible private attempt to enforce the FDCA. Because plaintiffs are claiming nothing more than a violation of the FDCA, defendant contends, their claims are preempted and fail to state a cognizable claim of fraud under the state law consumer protection statutes. In the alternative, defendant argues that plaintiffs have failed to allege an injury or a viable theory of damages.
I. Judicial Notice
As an initial matter, defendant has moved for judicial notice of several exhibits that may be divided in two categories: FDA documents and facts about aspirin. First, Bayer would have the Court take judicial notice of the publication and contents of three documents on the FDA website regarding the high standard for scientific agreement; the FDA’s authority; and FDA enforcement options. Plaintiffs would limit judicial notice to the fact of publication alone. Second, Bayer moves for judicial notice of certain facts regarding aspirin — that it has been sold in the United States for more than 100 years; is recognized as useful in preventing heart attacks and strokes by the American Heart Association; and that other low-dose aspirin is marketed for cardiovascular uses. Plaintiffs dispute these facts and argue that it would therefore be error to take judicial notice of them.
Although the purpose of a motion to dismiss is to test the legal sufficiency of a plaintiffs claims, taking all the allegations as true and reading them in the light most favorable to the plaintiff, the court is not required to reason in a vacuum. 5B Wright & Miller § 1357, at 376. At any stage of the proceeding, the court may take judicial notice of facts “not subject to reasonable dispute” because such facts are “generally known” or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” without converting a motion to dismiss into a motion for summary judgment. Fed.R.Evid. 201(b), (f). Courts routinely take judicial notice of extrinsic facts that may be independently, and reliably, verified.
See, e.g., Hayden v. Paterson,
Plaintiffs rely on
Global Network Communications Inc. v. New York,
Pursuant to Rule 201(b), the Court takes judicial notice of the six exhibits. The facts set forth on the FDA website are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,” widely recognized, and incorporated into federal regulations and leading cases. Similarly, the facts regarding aspirin and its marketing by other manufacturers are widely acknowledged and easily verified.
II. Preemption
Defendant attacks the adequacy of plaintiffs’ complaints about the defects of Heart Advantage and Bayer Calcium, the gravamen of which is that plaintiffs have averred nothing more than a violation of the FDCA. As defendant argues in its brief: “Plaintiffs’ claims fail, first, because they are [ ] private attempts to enforce the [FDCA] ... Even if a state were to recognize it, a cause of action based on a failure to obtain FDA approval would be preempted as interfering with the FDA’s approval process.” Both arguments are built on the premise that plaintiffs’ cardinal complaint is that Bayer sold unapproved drugs. Bayer’s reading narrows plaintiffs’ allegations to the fact that it sold Heart Advantage and Bayer Calcium without first winning FDA approval, which plaintiffs argue it was obliged to do because, although the components of each are FDA-approved, the combination products are new drugs that require FDA approval. “At the heart of the Complaint is the allegation, for each of the named plaintiffs, that he or she ‘would not have purchased [Bayer’s product] had [he or she] known that Bayer submitted [it] to the FDA.” Bayer dismisses plaintiffs’ allegations of the substantive defects in the products — that it would be impossible to take either Heart Advantage or Bayer Calcium and get the recommended amount of low-dose aspirin and calcium or phytosterols — as “irrelevant” without corresponding allegations of physi *369 cal harm or deficient directions. Because plaintiffs have not claimed physical injury, defendant argues they have not been injured at all. Finally, defendant contends that plaintiffs’ claims fail because they plead an insufficient “price inflation” or “price impact” theory of damages.
A. FDCA and preemption
Defendants rely heavily on the well-established principle that enforcement of the FDCA is the sole province of the FDA. 21 U.S.C. § 337(a) (“[A]ll such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.”); see
Buckman Co. v. Plaintiffs’ Legal Comm.,
Following Buckman, courts have distinguished preempted claims from viable ones in the following manner:
The plaintiff must be suing for conduct that violates the FDCA ... but the plaintiff must not be suing because the conduct violates the FDCA (such a claim would be impliedly preempted under Buckman). For a state-law claim to survive, then, the claim must be premised on conduct that both (1) violates the FDCA and (2) would give rise to a recovery under state law even in the absence of the FDCA.
Riley v. Cordis Corp.,
After
Buckman.
state law consumer protection statutes (and the Lanham Act) continue to serve their traditional complementary role with FDCA labeling requirements.
Mut. Pharm. Co. v. Ivax Pharms., Inc.,
Thus, in
Wyeth v.Levine,
— U.S. —,
After
Wyeth,
federal drug labeling regulations continue to set only threshold requirements and states remain free to erect additional protections.
See, e.g., Demahy v. Actavis,
B. Misrepresentations
Guarding against false or deceptive advertising in the marketplace, including false claims of FDA approval, is within the province of false advertising suits and state law consumer protection claims, many of which were enacted to ensure an honest marketplace.
See id.,
at *, 2009 U.S. Dist. Lexis 58697, at *24-25 (explaining that in order to bring a state law consumer fraud claim, plaintiff needed to allege that defendant had made false or deceptive statements and dismissing plaintiffs’ amended complaint for failure to set forth specific instances where defendant made such statements). The very purpose of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1.1
et seq.
(2007) (“CFA”), was to “give consumers relief from fraudulent practices in the marketplace and to deter merchants from employing those practices.”
Furst v. Einstein Moomjy, Inc.,
Thus, in
Mylan Laboratories,
the Fourth Circuit found that the plaintiffs claim could proceed where it alleged that the defendant had falsely represented that its product was “bioequivalent” to the plaintiffs. Athough FDCA regulations define bioequivalence, the court found that the plaintiffs claim was viable because it had alleged that the defendant’s statement was literally false.
There is a distinction between respecting the FDA’s primary jurisdiction to determine in the first instance whether a drug is lawfully marketed ... and, on the other hand, a Lanham Act claim that a false statement has been made about a product. Even though the FDA has not required [defendant] to demonstrate the equivalence of [its drug to plaintiffs] ... [defendant] is not free to make false or misleading statements about its product.
In
Mylan Laboratories,
the Fourth Circuit distinguished between the plaintiffs sufficient claim for false representations of bioequivalence from its inadequate claim that merely placing drugs on the market with standard inserts often used for FDA-approved drugs was sufficient to falsely imply that the drug was FDA-approved. The plaintiffs claims that the defendant falsely implied FDA approval failed for the same reason that its claims that the defendant falsely implied bioequivalence survived — specificity. In order for the plaintiffs claims of misrepresentation as to the drug’s FDA approval to survive, the court explained, it would have had “to point to
some
claim or representation that is reasonably clear from the face of the defendants’ advertising or package inserts.”
*373
False representations of FDA approval are evaluated consistently with claims of misrepresentations about other aspects of drugs — where plaintiffs sufficiently detail their allegations and point to specific instances where defendants have made false or misleading representations, they have actionable claims. Thus, in
Mutual Pharmaceutical Co. v. Ivax Pharmaceuticals, Inc.,
C. Application
Plaintiffs assert that Bayer made misrepresentations designed to lead consumers to believe that the Heart Advantage and Bayer Calcium had been FDA approved. First, plaintiffs that Bayer’s reputation gave the combination products the imprimatur of FDA approval, which was cemented by Bayer’s repetition of the claims it makes on low-dose aspirin and use of FDA-approved health benefit claims as to phytosterols and calcium. 11 Plaintiffs contend that by employing valid FDA-approved statements about the virtues of the component parts of the combination products, Bayer falsely implied that the combination products were themselves FDA approved. Bayer does not dispute that it employed FDA-approved statements about phytosterols, calcium and low-dose aspirin in marketing the combination products, and argues that there was nothing wrong with doing so. According to Bayer, the FDA’s approval of the claims about calcium, phytosterols and low-dose aspirin entitled it to use them on the combination products. It is immaterial, in Bayer’s view, that the FDA never approved any *374 claims as to the combination products themselves. 12
Second, plaintiffs contend that defendant misrepresented the safety and efficiency of the combination products. Plaintiffs argue that Bayer misrepresented the efficiency of the combination products because it would be impossible to receive adequate amounts of calcium or phytosterols if taking them as part of a daily aspirin regimen. Although taking multiple doses would provide the recommended amounts of calcium or phytosterols, it would be dangerous quantities of aspirin. As plaintiffs allege:
To provide any putative benefit, the dosage of phytosterols necessary to be consumed equals 2 tablets of Bayer Heart Advantage. By contrast, a daily aspirin regimen consists of a single 81mg tablet. Thus, a person cannot simultaneously ingest the recommended dose of aspirin while obtaining any purported cholesterol lowering effects of phytosterol.
Compl. at ¶ 67. Likewise, plaintiffs claim that in order to provide any putative benefit, someone would have to take multiple tablets of Bayer Calcium, which would supply the recommended amount of calcium but multiples of the recommended daily dose of aspirin. Id. at ¶ 37. Because of this dosing conflict, plaintiffs argue that the combination products were neither as effective (at lowering cholesterol or providing calcium) nor as safe (because ingesting sufficient quantities of phytosterols or calcium would require double-doses of aspirin) as Bayer represented.
Plaintiffs have pointed to specific instances of how Bayer allegedly implied that the combination products were FDA approved, which brings the present case
closer to
Mutual Pharmaceutical
and
Cottrell,
in which the plaintiffs attacked not merely the marketing and sale of drugs in general, but the “peculiar form that marketing has taken as having a specialized, implicit meaning in the eyes of the consumer [ ] that the drug is FDA-approved.”
Mutual Pharm.,
Reading the Complaint in the light most favorable to plaintiffs, it alleges not a statutory violation, but that defendant made misrepresentations that the combination products had been FDA approved. Plaintiffs’ first claim is viable because it focuses on representations directed to consumers and asserts that defendant put into commerce false representations of FDA approval.
See id.; TrafficSchool.com,
Plaintiffs’ second and third claims (that Bayer misrepresented the safety and effectiveness of the combination products) are both grounded in their dosing discrepancy argument. Plaintiffs allege that Bayer’s labeling made the products appear to be all things to all people — providing adequate sources of calcium or phytosterols as part of a low-dose aspirin regimen. This is a traditional claim of consumer misrepresentation, not an attempt to enforce the FDCA’s labeling requirements.
Jackson v. Balanced Health Prods.,
No. C 08-05584,
Defendant argues that the FDA’s silence since the 2008 warning letters means that it has tacitly approved of the advertising, thereby preempting plaintiffs’ state law false advertising claims. This is exactly the reasoning rejected in
Wyeth.
Even if defendant is correct and the labeling meets the floor established by federal regulations, there is nothing to indicate
*376
that it could not still be misleading and therefore actionable under state consumer protection laws. Moreover, in order to prevail on such a preemption argument, defendant would have to show not only that its labeling met federal requirements, but that it was impossible for it simultaneously comply with the state consumer protection laws. In short, even if the statements met the FDA’s threshold requirements, they could still be misleading under state law consumer protection statutes.
See In re Bextra,
Finally, plaintiffs rely on FTC actions to show that the labeling claims were misleading.
See, e.g., Am. Home Prods. Corp. v. Fed. Trade Comm’n,
For the reasons set forth above, the Court concludes that plaintiffs’ claims are not preempted by the FDCA and allege that defendant misrepresented whether the FDA had approved the combination products, and the safety and effectiveness of the combination products.
III. Motion to dismiss under the laws of states other than those in which named plaintiffs reside
Bayer has moved to dismiss plaintiffs’ claims brought under the laws of states other than those in which the named plaintiffs reside and where each made their purchases. The five named plaintiffs live, and purchased the combination products, in New York, New Jersey, Illinois, and California. Plaintiffs argue that New Jersey law will ultimately govern, but in the alternative, bring suit under some 43 state consumer protection acts. 13 Plaintiffs also invoke the express and implied warranty laws of 30 states. 14 Plaintiffs have broken out a California subclass. 15 Bayer argues that the causes of action plaintiffs bring in the alternative pursuant to the various state law consumer protection statutes and pursuant to the express and implied warranty laws of all states other than New York, New Jersey, Illinois, and California, should be dismissed because the named plaintiffs lack standing to bring suit in states other than their own and because the pleadings are inadequate. 16 Defendant’s first argument confuses Article III standing with the adequacy of named plaintiffs in a class action and its second fails because plaintiffs’ pleadings are sufficiently detailed.
A. Standing to bring suit under state laws in which named plaintiffs do not live
“The issue of standing is a constitutional one and should not be conflated with Rule 23 class action requirements.”
Ramirez v.
*377
Dollar Phone Corp.,
No. 09-CV-2290,
The relevant question ... is not whether the Named Plaintiffs have standing to sue Defendants — they most certainly do — but whether their injuries are sufficiently similar to those of the purported Class to justify the prosecution of a nationwide class action. This question is ... appropriately answered through the class certification process.
It follows that the sundry state law claims cannot be dismissed for lack of standing when there is no requirement that the named plaintiffs have standing to bring them. Under the guise of standing, defendant has raised the issues of adequacy of the representatives and whether there are common questions of law or fact that predominate over any questions affecting only individual members.
Ramirez I,
B. Standing to bring suit on their own behalf
At this preliminary stage of the litigation, the only relevant standing inquiry is that of the named plaintiffs. Defendant argues that because plaintiffs have not pled physical injury caused by defects in Heart Advantage or Bayer Calcium, they have failed to allege the cognizable harm required for Article III standing.
W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche, LLP,
C. Adequacy of pleadings of sundry state law consumer protection statutes
Defendant’s second argument, that the claims under state laws other than those of New York, New Jersey, Illinois and California should be dismissed for failure to state a claim, also fails. Granting this motion would permit Bayer to accomplish indirectly what it cannot directly. As defendant acknowledges, it is widely acknowledged that choice of law is determined at class certification to determine whether there is commonality.
Pirelli Armstrong Tire Corp. v. Walgreen Co.,
No. 09 C 2046,
On the other hand, plaintiffs cannot use class actions to escape pleading requirements. Although the connection between the named plaintiffs and the jurisdictions they invoke is not material, the adequacy of their pleadings is. Defendant argues that plaintiffs’ pleading of the sundry state statutes is insufficient because they have merely listed them, failing to recite the requisite elements of a cause of action and the grounds for their entitlement to relief. “The pleader is required to ‘set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.’ ”
Kost v. Kozakiewicz,
Plaintiffs have outlined only the broad contours of the state law causes of action for states other than those in which they reside. That, however, is sufficient at this preliminary stage because, unlike the
McGarvey
plaintiffs, they have done more than “mere[ly] listing ... state consumer fraud statutes.” 639 F.SuppUd at 465-66. Plaintiffs have drawn the connection between the statutes and defendant’s offend
*379
ing conduct. This is sufficient for defendant and the Court to draw inferences that the elements exist.
See id.
at 464;
Kost,
The acts, practices, misrepresentations and omissions by Defendant described above, and Defendant’s dissemination of deceptive and misleading advertising and marketing materials in connection therewith, occurring in the course of conduct involving trade or commerce, constitute unfair methods of competition and unfair or deceptive acts or practices within the meaning of each of the above-enumerated statutes.
Compl. ¶ 110.
This pleading is representative of those for the breach of express warranties claimed in Count III and the breach of implied warranties claimed in Count IV. In all, plaintiffs link defendant’s actions to the elements of the state law causes of action and sketch the outlines of those causes of action. Cursory, yes, but especially when considered in conjunction with the detailed choice of law analysis to be conducted at class certification, the allegations are sufficient to survive defendant’s motion to dismiss.
See Rios,
Generally, consumer fraud cases are governed by the law of the state where the consumer resides.
In re Grand Theft Auto Video Game,
A. CFA
“Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful” may bring a CFA claim. N.J. Stat. Ann. § 56:8-19. “To state a cause of action under the CFA, a plaintiff must allege: (1) an unlawful practice by the defendants; (2) an ascertainable loss by plaintiff; and (3) a causal nexus between the first two elements — defendants’ allegedly unlawful behavior and the plaintiffs ascertainable
*380
loss.”
Parker v. Howmedica Osteonics Corp.,
07-02400,
Finally, although CFA claims sounding in fraud must meet the heightened pleading requirements of Rule 9(b),
see, e.g., Ramirez I,
B. Application
Accepting the allegations set forth in the Complaint as true, and viewing them in the light most favorable to plaintiffs, they have stated a viable CFA claim. Plaintiffs easily meet the first requirement. As detailed at length above, plaintiffs have charged defendant with falsely implying that the FDA had approved the combination products and that they were safe and effective for their advertised uses.
Defendant contends, however, that plaintiffs founder on injury and causation. According to defendant, plaintiffs cannot show the requisite injury, because they were not physically injured by the combination products, and cannot show that defendant’s misrepresentations caused any harm to them, because they alleged a price inflation theory of damages. First, defendant asserts that plaintiffs did not get less than they bargained for because the combination products provided what they promised — low dose aspirin and phytosterols or calcium. This interpretation reads out plaintiffs’ entire inadequate dosing argument, which is the foundational premise of its allegations that the combination products were substantively defective. Moreover, the fact that plaintiffs cannot
*381
point to any physical injuries is immaterial. As the Second Circuit explained in
Desiano,
the injury alleged is “unaffected” by whether anyone was physically injured. The
Desiano
plaintiffs were health insurers who alleged that the defendant’s misrepresentations about the safety of its diabetes drug caused them economic loss as purchasers because, had they not been misled by defendant’s misrepresentations, they never would have chosen to purchase its drug rather than cheaper available alternatives.
As the Second Circuit explained in
Desiano,
if a drug company marketed a drug that was new in name only and more expensive than the old drug, purchasers would be able to claim they suffered an economic injury.
Id.
at 349-50. In the hypothetical, as in the case at bar, plaintiffs have not argued that defendant’s misrepresentations caused the price of the product to rise, but that the misrepresentations were the very reason they purchased it at all.
18
Similarly, in
In re Bextra and Celebrex Marketing, Sales Practices and Product Liability Litigation,
MDL 05-01699,
In support of its argument that plaintiffs have made insufficient allegations of injury, defendant relies on cases where plaintiffs never contended that the product they purchased had a defect or harmed them.
See, e.g., Rivera v. Wyeth-Ayerst,
Finally, defendant attacks plaintiffs’ damages theory as alleging only that defendant’s misrepresentations caused a general price increase. New Jersey courts have rejected such price-impact theories as inadequate to state the causation required by CFA.
See, e.g., In re Schering-Plough,
Plaintiffs deny asserting that defendant’s misrepresentations caused the combination products to be more expensive than low-dose aspirin. Rather, they contend, those misrepresentations were the very reason they purchased the product at all.
20
In other words, as in
Desiano,
but for the misrepresentations, plaintiffs would have purchased a less expensive available alternative.
[H]ere, Plaintiffs allege that Ford’s fraudulent acts and omissions caused Plaintiffs’ damages in the form of diminution in value and loss of use. They do not claim that the price charged for the allegedly unsafe vehicles was inflated by a broad advertising campaign. Thus, unlike the plaintiffs in Merck and Schering-Plough, Plaintiffs here do not pursue the price inflation theory, nor otherwise allege circumstances associated with a change in price on the market.
Id. (internal quotations omitted).
Construing the complaint in the light most favorable to plaintiffs, and mindful of the “hesitation” urged by New Jersey courts when deciding motions to dismiss CFA claims, at this point in the litigation, it is simply too early to determine whether, as a matter of law, plaintiffs have pled only a legally insufficient fraud on the market theory of damages. Plaintiffs have alleged enough for the Court to infer that they are arguing that defendant’s false promises were the very reason they purchased the combination products and are, accordingly, seeking a full refund of the purchase price. Moreover, should this theory fail, plaintiffs have stated that they will seek to recover “the benefit of the bargain” or “out of pocket loss,” both theories of damages that other courts have accepted in state consumer protection actions to put defrauded consumers in the position they would have been had they received that which they bargained for.
See, e.g., Smith, Allen, Mendenhall, Emons & Selby, Inc. v. Thomson Corp.,
C. Breach of warranty and unjust enrichment claims
Defendant argues that plaintiffs’ breach of warranty and unjust enrichment claims fail for much the same reasons it argued that their state law consumer protection claims were preempted — that plaintiffs’ allegations boil down to an assertion that defendant was required to get FDA approval for the combination products. The gravamen of plaintiffs’ breach of express and implied warranty claims, defendant contends, is that its failure to get FDA approval for the combination products rendered them defective. This ignores not only plaintiffs’ allegations that defendant misrepresented the FDA approval of the combination products, but their detailed charges of substantive defects. Notably, in the eases defendant relies on, plaintiffs
*384
did not allege that the drugs were actually ineffective.
See, e.g., Schering-Plough,
As explained in the preemption discussion above, plaintiffs have alleged far more than that defendant should have won FDA approval for the combination products before selling them to consumers. Plaintiffs claim that the combination products cannot fulfill the promises Bayer makes on their labeling and that Bayer falsely implied that the combination products had been FDA-approved. Moreover, plaintiffs point out specific instances where they claim that defendant made a promise, such as that Bayer Calcium’s combination of aspirin and calcium helps “fight” osteoporosis, that plaintiffs claim the combination product could not fulfill. In sum, plaintiffs allege that Bayer is responsible for failing to live up to the terms of the promises that it made, the express warranty whose terms a seller defines for itself.
See Jackson,
Similarly, plaintiffs have made sufficient allegations that defendant breached an obligation imposed by law, as a result of which it retained profits from the sale of the combination products. Defendants argue that plaintiffs’ unjust enrichment claims fail because plaintiffs alleged only that defendant violated the FDCA by selling unapproved drugs. This characterization does a gross disservice to the Complaint’s allegations. As explained at length above, plaintiffs charge defendant with employing misleading statements about the virtues of the combination product to market them to consumers. Because of these misrepresentations, plaintiffs purchased the combination products and defendant retained those benefits. If the allegations in the Complaint are true, then defendant reaped a financial reward at plaintiffs’ expense. This is sufficient to state a claim for unjust enrichment.
See In re Chateaugay Corp.,
CONCLUSION
For the reasons set forth above, defendant’s motion to dismiss is denied.
SO ORDERED.
Notes
. Together, both products are referred to as the "combination products.”
. OTC aspirin labeling directed at consumers cannot include statements about its cardiovascular benefits because “[i]t is not possible ... to provide adequate directions and warnings to enable the layperson to make a reasonable self assessment of these factors. Therefore, safe and effective use of aspirin to influence the risk of vascular events requires medical supervision by a practitioner licensed to prescribe drugs.” Final FDA Rule for Professional Labeling of Aspirin, 63 Fed. Reg. 56,-802, 56,808 (Oct. 23, 1998) (codified at 21 C.F.R. § 343.80). It is only the labeling for health care professionals that may include statements about aspirin's cardiovascular benefits. In 2000, the Federal Trade Com *363 mission ("FTC”), which enforces advertising requirements that parallel the FDA’s labeling requirements, approved qualified health claims about low-dose aspirin's cardiovascular benefits. United States v. Bayer, Consent Decree, http://www.ftc.gOv/os/2000/01/ sterlingdecree.htm.
. In order to employ the health claims about calcium, the product must qualify as "high” in calcium, providing at least 20 percent of the recommended daily value. 21 C.F.R. § 101.72.
. "Regarding the use of Bayer Calcium as a source of aspirin, the package labeling states that the analgesic is intended to treat pain. However, other statements and representations on the package suggest that the product is also offered for long-term daily use in preventing or treating cardiovascular disease.” Compl. at ¶ 40.
. Plaintiffs allege that Bayer has long “promoted daily consumption of its Low-Dose Bayer Aspirin as a measure that consumers can take to prevent heart attacks” and charges it built on that marketing when it introduced Heart Advantage, advertising the new product "as intended for long-term daily use in preventing heart attacks and lowering cholesterol, and therefore in preventing and treating cardiovascular disease and hypercholesterolemia.” Compl. ¶¶ 59-61.
. Each of the named plaintiffs claim that they purchased either Heart Advantage or Bayer Calcium in local drug stores for the same six-month period after seeing representations on the label about the product's health benefit.
. As plaintiffs note in their Complaint, "Bayer included claims on [Heart Advantage's] packaging such as 'Plus Cholesterol Lowering Phytosterols' and ‘Phytosterols, to help lower bad cholesterol,' that imply that the product may be used to treat, mitigate, or prevent hypercholesterolemia and coronary heart disease.” Compl. ¶ 65. Such claims, however, require FDA approval and, plaintiffs allege, imply that if Heart Advantage were taken as part of a low-dose aspirin regimen, it would provide sufficient quantities of phytosterols to provide those benefits.
. A bottle of 60 tablets of Bayer Calcium costs $7.49, or $0.12 per pill.
. "[TJaking aspirin long-term should be under a doctor's supervision as the medicine is meant for short-term use. The long-term use of aspirin can cause serious side effects like gastrointestinal bleeding.” Compl. ¶ 4
. Similarly, plaintiffs argue that the Court should not take judicial notice of the American Heart Association’s recognition that aspirin has cardiovascular benefits or that other low-dose aspirins are marketed to consumers for cardiovascular uses. Yet the Complaint itself notes that one of the traditional reasons doctors prescribe aspirin is as a blood thinner for patients suffering from heart disease and that the FDA has approved statements about the cardiovascular benefits of aspirin. Compl. ¶¶ 3, 41.
. Defendant devotes considerable effort to refuting an argument that plaintiffs don’t make — that selling products without FDA approval or marketing products for purposes which the FDA has not approved them is a violation of the FDCA, for which a private plaintiff cannot seek redress.
See, e.g., In re Epogen II,
. Although the 2008 warning letters criticized Bayer's labeling, the FDA never pursued any enforcement action. Bayer argues that this amounts to tacit approval of its marketing and that plaintiff's claims are therefore preempted or merely allege a violation of the FDCA.
. Count II of the Complaint.
. Counts III and IV of the Complaint
. Counts VI, VII, VIII of the Complaint.
. Notably, the named plaintiffs have each specified where they saw the misleadingly packaged Heart Advantage or Bayer Calcium; where their purchases occurred; how long they continued purchasing the product; and how they were deceived. The Complaint also explains, in great detail, why the labeling was misleading.
. It is worth noting that the state consumer protection statutes at issue are similar to, and modeled on, the FTC Act.
Karlin v. TVF Am.,
.
McLaughlin v. American Tobacco.,
. Moreover, in
In re Schering-Plough,
upon which Bayer relies, the plaintiffs were bringing a civil RICO suit, which "incorporate[s] common law principles of proximate cause.”
Blue Cross & Blue Shield of N.J., Inc. v. Philip Monis USA Inc.,
. Should this argument fail, plaintiffs state that they will seek recovery under the "benefit of the bargain,” or "out of pocket loss” methods of calculating damages.
. Another reason Schering-Plough is of limited persuasive value here is that it dealt with civil RICO claims, not warranty claims,