MDL Court Disposes of Motions in Bisphenol A Litigation; Formula Labeling Claims Preempted
A multidistrict litigation (MDL) court in western Missouri has issued orders disposing of a number of motions in the dozens of cases transferred to it in litigation involving claims of fraud against companies that make baby bottles and sippy cups, reusable drink containers, and baby formula sold in metal cans lined with a substance containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., orders entered November 9, 2009).
The court has dismissed breach of express warranty claims and claims that depend on misrepresentations (as opposed to omissions) for insufficient pleading under Ashcroft v. Iqbal; and breach of implied warranty of fitness for a particular purpose. Remaining are claims for fraudulent omissions, violation of state consumer protection statutes, breach of implied warranty of merchantability, and unjust enrichment.
The court denied defendants’ motion to dismiss on the ground of primary jurisdiction, which applies when a claim involves issues within the special competence of an administrative body. According to the court, while the Food and Drug Administration (FDA) may have determined that BPA is safe, “Plaintiff’s claims are independent of the FDA’s ‘safety’ determination,” because they involve whether defendants failed to disclose material information to plaintiffs and whether defendants’ products were merchantable. The court also noted that plaintiffs do not challenge the FDA’s safety determinations and, with respect to the type of relief requested, plaintiffs seek monetary remedies only, “which the FDA cannot provide.”
The court determined that the claims were not impliedly preempted because they were not in direct conflict with federal law. According to the court, “the FDA’s approval of BPA as safe without labeling requirements establishes only a regulatory minimum; nothing in these regulations either required or prohibited Defendants from providing the disclosures sought by Plaintiffs.” Relying on the U.S. Supreme Court’s ruling in Wyeth v. Levine, the court found that federal law did not prevent the manufacturers from strengthening their labels “as necessary to comply with the standard imposed by state law.”
The makers of infant formula argued express preemption under the Food, Drug, and Cosmetic Act’s misbranding provisions and the FDA’s accompanying regulations. The court agreed with them, finding that federal law prohibits states from requiring food labels “not identical” to those required under federal law. Thus, the court dismissed all claims against the formula manufacturers as preempted.
