CVS Vitamin E Mislabeling Class Action Gets Revived

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A federal appeals court will allow a CVS class action lawsuit to continue, finding that federal law does not preempt the plaintiff’s claims under New York consumer protection laws.

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.

The appeals court concluded that Kaufman alleged behavior on CVS’s part that would equally violate the FDCA and state law.

The FDCA differentiates between claims about a supplement’s structure and function and claims that the supplement can cure or treat disease. Claims of disease treatment or cure must be reviewed by the FDA.

Structure and function statements are permitted if the manufacturer can substantiate that they are truthful and not misleading, and if the statement is accompanied by a statutory disclaimer.

While Kaufman and CVS agree that the statements on the Vitamin E label are structure and function statements, Kaufman argues that CVS cannot substantiate that the statements are truthful and not misleading.

CVS argued that Kaufman “shot herself in the foot” by citing studies in her pleadings that actually support the statements on the Vitamin E label.

However, the First Circuit found those studies do not substantiate the CVS label’s heart health statements – at least not enough to support a dismissal at this stage in the litigation.

Furthermore, some of the studies Kaufman cited provide plausible evidence that Vitamin E may damage the heart, the court said.

While the FDCA grants CVS a “preemptive license” to describe the role of a nutrient, the court concluded, the statute does not license a description that could mislead consumers by failing to mention another role that conflicts with the first.

Since Kaufman’s New York Consumer Protection Act claims invoke requirements that are no different from those under the FDCA, the court said, there is no basis for dismissing those claims as preempted.

The court reached the same conclusion on Kaufman’s unjust enrichment claim, since it alleges conduct that would equally violate the federal law.

Kaufman initiated this CVS class action lawsuit back in May 2014. She claims she bought a CVS store-brand Vitamin E supplement from a CVS store in Plainview, N.Y.

The supplement’s packaging allegedly bore a label that displayed the phrases “HEART HEALTH” and “Vitamin E helps maintain healthy blood vessels and supports heart health.” The plaintiff says she relied on this label when deciding to buy the CVS Vitamin E supplement.

Kaufman now claims that, contrary to the CVS label, scientific studies show that Vitamin E offers no benefit for cardiovascular health.

One study cited in her CVS class action lawsuit allegedly found a higher instance of heart failure and hospitalization for heart failure in patients who took Vitamin E.

Kaufman is represented in the appeal by attorney Brian D. Penny of Goldman Scarlato & Penny PC.

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