Booker v. E.T. Browne Drug Co., Inc.

Background

Chezaree Booker and Qwonjit Nelson brought a proposed class action against E.T. Browne Drug Co., Inc. They alleged that three products—Palmer’s Massage Lotion for Stretch Marks, Palmer’s Massage Cream for Stretch Marks, and Palmer’s Tummy Butter for Stretch Marks—were ineffective for preventing or reducing the appearance of stretch marks despite their labels. The complaint asserted five New York-law claims: violations of New York General Business Law §§ 349 and 350, unjust enrichment, breach of express warranty, and fraud.

E.T. Browne moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. The company asked the court to dismiss the complaint in its entirety. In deciding the motion, the court considered the product labels because the complaint relied on them, but it did not consider six scientific articles submitted by E.T. Browne.

Analysis

E.T. Browne argued that the claims were preempted, meaning federal law displaced the state-law claims. The court explained that the Federal Food, Drug, and Cosmetic Act can preempt state requirements for over-the-counter drugs when those requirements differ from federal requirements. But the court could not determine at the pleading stage whether the products were drugs, cosmetics, or both under that law. The labels’ directions to apply the products to areas “prone” to stretch marks could suggest that the products were intended to prevent stretch marks, potentially making them drugs. The court therefore assumed only for purposes of this motion that the products were drugs and denied the motion to dismiss based on preemption.

The company also argued that four claims should be dismissed because the articles relied on by the plaintiffs addressed prevention or treatment of stretch marks, while the products allegedly claimed only to reduce their appearance. The court declined to dismiss those claims because it could not yet determine the products’ legal classification or intended use under the federal statute.

The court agreed with E.T. Browne’s argument concerning unjust enrichment. Under New York law, unjust enrichment is generally unavailable when it merely duplicates a conventional contract or tort claim. The court found that the unjust-enrichment claim was based on the same alleged conduct as the other four claims and dismissed it as duplicative.

Disposition

Judge Philip M. Halpern granted E.T. Browne’s motion to dismiss in part. The third claim, for unjust enrichment, was dismissed. The claims under New York General Business Law §§ 349 and 350, for breach of express warranty, and for fraud were allowed to proceed into discovery. The court directed E.T. Browne to file an answer within fourteen days and stated that it would issue an initial pretrial conference order.