CVS Vitamin False Label Suit Revived

Class Action Litigation Report® is a one-stop resource for tracking the most important class-action and multi-party litigation across the nation, and across all subjects with particular focus on...

By Julie A. Steinberg

Sept. 6 — CVS Pharmacy, Inc. must face a would-be class suit alleging it deceptively touted its vitamin E supplements as providing heart-health benefits ( Kaufman v. CVS Caremark Corp. , 1st Cir., No. 16-1199, 9/6/16 ).

Federal law doesn’t bar Ronda Kaufman’s claims under New York’s consumer law or her claims for unjust enrichment, the U.S. Court of Appeals for the First Circuit said Sept. 6, reviving the suit.

Kaufman alleged CVS misleads consumers because no scientifically valid studies show that the “heart health” statements are both true and not misleading.

A district court said the claims were barred because the label complies with regulations issued under the Federal Food, Drug and Cosmetic Act.

The FDCA precludes any state labeling requirement that’s not identical to federal ones.

But the appeals court said Kaufman plausibly alleged that CVS lacks substantiation for its heart health statements—meaning the claims wouldn’t be barred because the label doesn’t satisfy federal requirements.

CVS contended that Kaufman undercut her own argument by describing, in the complaint, seven studies providing the required substantiation.because the complaint described seven studies that it says provide the substantiation required under federal law.

But existence of the studies doesn’t render the claims implausible, the court said. Most weren’t designed to test whether vitamin E supports heart health.

Additionally, the studies may plausibly indicate that in the aggregate vitamin E, in the doses packaged by CVS, can even damage the heart.

Supplements that could harm health at the supplied or recommended dosage, bearing a label claiming the product supports health, may be misleading under federal law, the court said.

Goldman, Scarlato & Penny, P.C. represented the plaintiff.

A&G Law LLC represented CVS.

To contact the reporter on this story: Julie A. Steinberg at jsteinberg@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Nicholas Datlowe at ndatlowe@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.