CVS Says Vitamin E Label Disclaimer Justifies Dismissal

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Earlier this week, 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.

Specifically, the class action lawsuit claims that the company falsely represents that its vitamin E products – including CVS Vitamin E 1,000 IU Softgels and CVS Vitamin E 400 IU Softgels Natural (100 count) – will “help maintain healthy blood vessels and promote heart health” without scientific evidence to support such claims.

CVS argued that U.S. District Judge Mary M. Lisi rightly dismissed the complaint with prejudice finding that the CVS-branded vitamin E product had a disclosure on the packaging for the supplement, which stated vitamin E is not intended to cure or treat disease, as required by the Food, Drug, and Cosmetic Act and sanctioned by the FDA.

The drugstore chain further stated that the plaintiff’s suit cites medical studies that actually prove vitamin E has no effect in reducing the risk of heart disease.

“Every one of the studies took as a premise that vitamin E is an essential nutrient and antioxidant that functions in the body by trapping so-called free radicals, preventing tissue damage and benefiting blood vessels, all of which increase immune function, just as the label states,” CVS argued.

Filed in May 2014 by plaintiff Ronda Kaufman of New York, on behalf a proposed nationwide Class of consumers who purchased vitamin E pills from the major pharmacy chain, and subclasses for customers in Rhode Island and New York, the CVS Vitamin E Supplement False Labeling Lawsuit alleges that the CVS Vitamin E product labels are misleading to customers, making them believe the supplements could reduce the risk of heart disease.

Kaufman alleges she bought vitamin E supplements from a CVS store in New York after reading the label and lost money on the purchase, which she wouldn’t have made if not for the heart health claims.

In late October, Kaufman argued the court should apply rulings that kept alive class actions targeting Bayer’s One-A-Day vitamins and Hyland’s homeopathic remedies, saying judges had found those cases weren’t preempted by FDA regulations and arguing the Rhode Island court should follow their lead.

Kaufman said the labels violated Rhode Island’s Deceptive Trade Practices Act and New York’s Consumer Protection Act, noting that the nationwide pharmacy retailer had unjustly enriched itself.

However, in January Judge Lisi disagreed and dismissed the complaint, finding that Kaufman failed to allege that the representations on the CVS Vitamin E supplement label were false and misleading.

In her April appeal, Kaufman argued that Judge Lisi improperly dismissed the complaint, in part because the judge did not accept Kaufman’s factual allegations concerning the absence of heart benefits CVS claimed its vitamin E supplements provided in the light “most favorable” to a plaintiff.

Kaufman also disputes that the judge’s ruling that the supplement label disclaimer was preempted by the Food, Drug, and Cosmetic Act, maintaining that her allegations were not to enforce FDA regulations on CVS or its parent company, CVS Caremark Corp.

Instead, Kaufman claims that her suits namely seeks to hold CVS responsible for misleadingly advertising its vitamin E supplements to consumers as providing heart health benefits.

Kaufman is represented by Laura Killian Mummert and Brian D. Penny of Goldman Scarlato & Penny PC.

The CVS Vitamin E False Labeling Class Action Lawsuit is Kaufman v. CVS Caremark Corp., et al., Case No. 16-1199, in the U.S. Court of Appeals for the First Circuit.

UPDATE: 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 2: 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.