Goldstein v. Walmart, Inc.

Background

Aileen Goldstein sued Walmart, Inc., individually and for proposed classes of purchasers. She alleged that Walmart sold Equate over-the-counter cough medicines containing dextromethorphan hydrobromide under labels prominently stating “Non-Drowsy.” Goldstein alleged that she bought Equate Daytime Tussin DM Max in March 2021, relied on the label, took the recommended dose, and became unexpectedly drowsy.

Goldstein asserted state consumer-protection claims, including claims under New York General Business Law sections 349 and 350 and comparable laws of several other states and Washington, D.C. She also alleged breach of express warranty and violation of the Magnuson-Moss Warranty Act. She claimed economic injury because the product allegedly was worth less than represented and because the label allegedly increased its price or demand. She also sought injunctive relief based on her alleged inability to rely on Walmart’s labels in the future.

Walmart moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s authority to hear a dispute, while Rule 12(b)(6) tests whether a complaint plausibly states a legal claim.

Federal preemption

The court held that Goldstein’s state-law claims were expressly preempted by the Federal Food, Drug, and Cosmetic Act. The statute bars states from imposing drug-labeling requirements that are different from, additional to, or not identical with federal requirements. The court explained that this restriction can apply to common-law duties, including duties imposed through warranty or consumer-protection claims.

The court focused on the FDA’s over-the-counter antitussive monograph. The FDA required drowsiness warnings for certain products containing diphenhydramine, but did not require such a warning for products containing dextromethorphan. The court found that the FDA had considered whether dextromethorphan required a drowsiness warning and concluded that available information did not support requiring one. In the court’s view, Goldstein’s theory would impose a nonidentical labeling requirement because Walmart could avoid liability only by removing the “Non-Drowsy” representation or adding clarifying information.

The court rejected Goldstein’s argument that her claims were not preempted because they challenged an affirmative statement rather than an omission. It reasoned that an alleged omission and an alleged misleading representation can impose the same practical labeling duty. The court also rejected the argument that the FDA had not regulated the specific phrase “Non-Drowsy.” It held that the FDA did not need to use that exact phrase because it had regulated the underlying subject—whether dextromethorphan cough medicines should carry a drowsiness warning.

The court concluded that Goldstein’s claims under the New York General Business Law and her warranty claims were preempted. It stated that the Magnuson-Moss claim failed as well. The court noted that the parties had not briefed whether the express-warranty claim fell within the federal statute’s exception for state product-liability law, but stated that Goldstein had not disputed Walmart’s preemption argument and that, even if she had not abandoned the issue, the warranty claim would be preempted because it sought recovery for purely economic loss rather than personal injury or property damage.

Standing for injunctive relief

The court separately held that Goldstein lacked Article III standing to seek injunctive relief. Article III standing requires an actual or imminent injury that a court order could remedy. A past purchase and past deception are not enough to establish standing for an injunction; the plaintiff must show a likelihood of future injury.

Applying Second Circuit precedent, the court reasoned that past purchasers generally are not likely to suffer future harm because they are not required to buy the product again. If they do buy it again after learning that the label is allegedly misleading, they would not be under the same alleged illusion. The court found Goldstein’s allegation that she would repurchase the products if they were truly non-drowsy insufficient because any future purchase was speculative. The court also noted that her claimed inability to rely on the label was based on her past injury and did not establish a separate imminent injury.

Disposition

Judge Lewis J. Liman granted Walmart’s motion to dismiss. The court determined that Goldstein’s state-law and warranty claims were preempted, that her Magnuson-Moss claim failed, and that she lacked standing to pursue injunctive relief. The court expressly stated that it did not need to decide whether Goldstein adequately pleaded her state claims or whether she had statutory standing to pursue consumer-fraud claims under laws outside New York. The Clerk of Court was directed to close Walmart’s motion.