CVS Dodges Suit Alleging False Advertising of Vitamin E Supplements

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The motion to dismiss a potential class action lawsuit against CVS over allegations of misleading labels was granted in a Rhode Island federal court last week. The CVS class action lawsuit claimed that the company misled shoppers about the heart-healthy benefits of its vitamin E supplements.

Plaintiff Ronda Kaufman initially filed the lawsuit against CVS Caremark Corp. in May 2014 accusing the company of misrepresenting claims on its store brand vitamin E labels, and stated that this misrepresentation tricked her into purchasing the supplements to support the health of her heart.

The CVS class action argued that the majority of scientific research published on vitamin E did not demonstrate that the supplement provided heart health benefits. Kaufman further alleged that she would not have purchased the supplement if CVS hadn’t claimed the supplement was heart healthy.

In the proposed class action lawsuit, Kaufman hoped to represent a nationwide class of consumers or two subclasses, consisting of Rhode Island and New York consumers who bought CVS vitamin E with “heart health” claims on the label or statements claiming that the product had healthy effects on blood vessels.

Kaufman alleged CVS vitamin E labels violated Rhode Island’s Deceptive Trade Practices Act, New York’s Consumer Protection Act and that the company is liable for unjust enrichment.

U.S District Judge Mary M. Lisi did not find Kaufman’s statements convincing and said that the labels on the vitamin E packaging contained appropriate language in line with the requirements set forth by the Food Drug and Cosmetics Act.

Judge Lisi stated, “Kaufman’s allegations that ‘defendants misled consumers to believe these products protect consumers’ hearts and/or reduce consumer’s risk of heart disease;’ and that she ‘was misled by defendants’ statements to believe its vitamin E products would reduce her risk of heart disease’ are inconsistent with the statements that are actually written on the label, and they are in direct contravention of the explicit disclaimer on the product label.”

As evidence for her CVS lawsuit, Kaufman cited several research studies that she felt supported her claims of the false and misleading labeling on vitamin E labels supplied by the store. Judge Lisi, however, felt that Kaufman’s research studies the she cited “support, rather than refute, the representations of the Defendants’ product label.”

Judge Lisi stated, “The statements on the Defendants’ product label, however, make no assertions that conflict with these findings. The specific disclaimer that the Defendants’ supplement ‘is not intended to diagnose, treat, cure or prevent any disease,’ complies with FDCA requirements. The results of these cited studies cannot support a finding of misrepresentation by the Defendants for the limited content of their function/structure claims, which is, moreover, supported by the same studies.”

Judge Lisi summarized by saying, “The Court concludes that Kaufman has failed to allege that the representations on the product label are false and misleading. Accordingly, Kaufman’s claims are both preempted by the FDCA and insufficient to state a claim for fraud. In the absence of a viable fraud claim, Kaufman’s unjust enrichment claim must fail as well.”

Kaufman is represented by K. Joseph Shekarchi of Shekarchi Law Offices, Brian D. Penny, Laura Killian Mummert and Douglas Bench of Glodman Scarlato Jaron & Penny PC and John Zaremba of Zaremba Brownell & Brown PLLC.

The CVS Vitamin E Mislabeling Class Action Lawsuit is Ronda Kaufman et al. v. CVS Caremark Corp. et al., Case No. 1:14-cv-00216, in the U.S. District Court for the District of Rhode Island.

UPDATE: On May 16, 2016, CVS pleaded with the First Circuit to uphold a Rhode Island federal court’s dismissal of a consumer class action lawsuit filed by a customer alleging the pharmacy chain misleadingly markets its vitamin E products bearing the “heart health” label.

UPDATE 2: On July 25, 2016, Kaufman pleaded with the First Circuit to revive the lawsuit, telling the panel of judges that a lower court misinterpreted her state-law claims alleging that CVS misled consumers about the supplement’s ability to fight heart disease and improperly dismissed the case.

UPDATE 3: On Sept. 6, 2016, the U.S. Court of Appeals for the First Circuit reversed a district court’s February 2016 ruling that plaintiff Ronda Kaufman’s claims under New York’s Consumer Protection Act are preempted by the federal Food, Drug, and Cosmetic Act.