Lester v. CVS Pharmacy, Inc.

Background

Michael Lester brought a proposed class action against CVS Pharmacy, Inc. He alleged that CVS’s 3% hydrogen peroxide solution was falsely or misleadingly labeled because the front of the package said it was “[f]or treatment of minor cuts & abrasions.” Lester interpreted “treatment” to mean attempting to heal, improve, or cure a condition, and alleged that hydrogen peroxide could not help heal wounds or shorten healing time. He alleged that he bought the product for $1.79 at a Manhattan CVS between May and June 2022.

Lester asserted claims under New York General Business Law sections 349 and 350 and similar consumer-protection statutes in other states. He also asserted claims for breach of express warranty, breach of implied warranties, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, fraud, and unjust enrichment. He sought to represent New York and multistate classes of consumers. CVS moved to dismiss under Rule 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim.

Federal preemption and labeling

The court held that Lester’s state-law claims were expressly preempted by the Food, Drug, and Cosmetic Act. Federal preemption means that state requirements must give way when federal law bars states from imposing different or additional requirements. For over-the-counter drugs, the Act prohibits state labeling requirements that are “different from,” “in addition to,” or not identical with federal requirements.

The court reviewed the Food and Drug Administration’s rules and monographs governing 3% hydrogen peroxide products. The FDA had considered labeling stating “First aid antiseptic” and “For treatment of minor cuts and abrasions” in its 1991 tentative monograph and had not prohibited that wording. The later final monograph authorized hydrogen peroxide as an active ingredient in first-aid antiseptic products and required labeling concerning uses, warnings, and directions.

The court concluded that CVS’s label satisfied the applicable federal requirements. It rejected Lester’s argument that “treatment” conveyed a different function from the back-label language stating that the product was “first aid to help prevent the risk of infection in minor cuts, scrapes, and burns.” The court found the differences in wording minor and held that Lester could not use state law to impose additional labeling requirements or challenge the FDA’s scientific determinations in this action.

Magnuson-Moss Warranty Act claim

The court separately addressed Lester’s claim under the Magnuson-Moss Warranty Act, a federal statute concerning certain written warranties. It held that the claim was barred because the making or content of the relevant warranty was governed by federal law. The court also held that the claim failed the Act’s requirements for a class action: among other requirements, each individual claim must involve at least $25, and Lester alleged only that he bought a product costing $1.79 without alleging enough purchases to reach that amount.

Disposition

The court stated that Lester’s state-law claims were preempted and that his Magnuson-Moss claim failed. Although Lester alternatively requested permission to amend, the court denied that request because he had not sought amendment within the court-ordered deadline. The court also stated that amendment would be futile because Lester had not identified additional allegations that could overcome preemption. The court GRANTS CVS’s motion to dismiss with respect to all claims, directed entry of judgment for CVS, and closed the case.