NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0197n.06 No. 10-4274 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RI CHARD L ORETO, on behalf of himself and others simil arly situated; L ARRY BU FF A, on behalf of himself and other s simil arly situated, Plaintiffs-Appellants,

v. THE PROCTER & GAMB L E COMPANY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI S T R I C T COU R T FOR THE SOUTHERN DI STRI CT OF OH I O

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; and T HAPAR, District J udg e. *
GRI FF I N, Circuit J udg e. Plaintiffs Richard L oreto and L arr y Buf fa appea l the district court’s dismiss al of their claims
ag ainst Procter & Gamble for violation of various consumer- protec tion statutes. For the following

rea sons, we af

firm in part a

nd reve rse in par

t. I

. This proposed class action involves the char g e that Procter & Gamble was unjustly enric hed and violated the consumer- protec tion laws of all fifty States when it sold and marke ted t wo new product s i n 2009: Day Quil Plus Vitamin C and Ny Quil Plus Vitamin C. Acc ording to plaintiffs,

The Honora

ble Amul R

. Thapa

r, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 10-4274

Loreto, et al. v. Procter & Gamble Co.

the company soug ht to exploi t the commonly held, y et alleg edly

unfounded, be lief that Vitamin C is eff ective for treating cold s y mptoms by adding the vi tamin to its Day Quil and Ny Quil products and using the following statements in its advertisements: Combini ng the power ful multi-sy mptom relief of Day Quil with more than 150% of the re commended va lue of vitamin C.
VI CKS Ny Quil Cold & Fl u S y m ptom Relief Plus Vitamin C provides multi-sy mptom cold and flu relief so y ou can g et the sleep y ou need to enjoy an even swee ter tomorrow. Plus, y ou’l l al s o replenish y our body with 150% of the daily value of vitamin C. Vitamin C: I t won’t cure a cold, but vit am i n C can help bl unt its eff ects. Aim for 500 mg a day

. Fig hting Cold and Flu Season.

. . . Don’t fo rge t to take y our daily vitamins. Consider taking extra vitamin C, vi tamin A, and zinc, all of which ma y help y ou. Plaintiffs purcha sed the products over competing ones in part beca use of thes e s t atements. They alleg e that no scientific evidenc e supports the claim that Vitamin C can alleviate cold sy mptoms, and that, but for Procter & Gamble’ s false or misleading statements to the contra ry , plaintiffs would have purcha sed a lower- price d competing product instead. Plaintiffs seek a ref und of the purcha se price

. They also reque st class trea tment. Ex erc ising orig inal jurisdiction under the Class Action Fa irness Act of 2005, 28 U.S.C. § 1332(d), the d i s t ri ct court dismiss ed all of plaintiffs’ claims. Plaintiffs timely appea led.
I I

. We first addre ss which state’s law applies. Ohio is the forum state, so we apply its choice -oflaw rules. Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941). Under Ohio’s rules, “the

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Loreto, et al. v. Procter & Gamble Co.
place of the injury controls in a consumer- protec tion lawsuit, requiring application of the home-state law of eac h p o tential class member.” Pilgrim v. Universal Health C ard, LLC , 660 F.3d 943, 947 (6th Cir. 201 1 ) (apply ing Morgan v. Biro Mfg. Co. , 474 N.E.2d 286 (Ohio 1984)). New J erse y , plaintiffs’ state of residenc e an d t h e s t at e wher e they purcha sed the products, was the “plac e of injury ” her e, so its law applies. See id. Plaintiffs respond that Oh i o law should apply beca use the adver

tising campa ign they challeng e emana ted from Procter & Gamble’ s Ohio hea d q u ar t er s . They rely on two decisions

— Parker v. Berkle

y Premium Nutraceuticals, Inc. , 2005 Ohio Misc. L EXI S 605 (Ohio C.P. 2005), and Brown v. Marke t Dev elopment, Inc. , 322 N.E.2d 367 (Ohio C.P. 1974). But we declined to follow those ver

y decisions i n Pilgrim , and Pilgrim is indist inguisha ble. See P ilgrim , 660 F.3d a t 947. The district cour

t corre ctly

dismiss ed plaintiffs’ c laims under Ohio law.

I I I

. That leave s plaintiffs’ claim under New J erse y ’s Consumer Fr aud Act, which the district
court dismiss ed under Fe dera l Rule of Civil Procedur e 12(b)( 6). We revie w that decision de novo. 1
See R oberts v. Hame r , 655 F.3d 578, 581 ( 6th Cir. 2011). The district court offe red alterna tive rea sons for dismiss ing plaintiffs’ New J erse y claim. I t deter mined first that the claim was pree mpted by the Fe dera l Food, Drug , an d Cosmetic Act (the
“F DCA” or “ Act”) . I t also ruled that the c laim was not cog nizable under Ne w J erse y law.

Plaintiffs ab an d o n ed their unjust-enrichme nt claim by not addre ssing it in their opening 1 brief. See M

usic v. Arrowood Indem . Co. , 632 F.3d 284, 286 n.1 ( 6th Cir. 2011). - 3 -No. 10-4274

Loreto, et al. v. Procter & Gamble Co.

A. We f irst c onsider Procter & Gamble’ s pree mption ar g ument. “The FDCA leave s no doubt that it is the Fe deral Go v er nment rathe r than private litigants who [i s] authorized to file suit for noncompliance with” its substantive provisions. Buck man Co. v. Plaintif

fs’ Legal Comm. , 531 U.S. 341, 349 n.4 (2001); see Bailey v. Johnson , 48 F.3d 965, 966 (6th Cir. 1995) (re cog nizi ng that the FDCA cre ates no express or implied private cause of action). The statute’s public enfor ceme nt mecha nism is thwarte d if savvy plaintiffs can label as arising under a state law for which there exis ts

a private enfor ceme nt mecha nism a cl ai m t h at in substance seeks to enfor ce the FDCA. Under principles of “implied pree mption,” there fore , p ri v ate litigants may not “bring a state-law claim
ag ainst a defe ndant when the state-law claim is in substance (eve n if not in form) a claim for violating the FDCA[.]” R i l ey v. Cordis Corp. , 625 F. Supp. 2d 769, 777 (D. Minn. 2009) (citing Buck man Co. , 531 U.S. at 352–53); see In re Epogen & Aranesp Off-Label Mktg. & Sales Practices
Liti g. , 590 F. Supp. 2 d 1282, 1290–91 (C.D. Cal. 2008) (“[P] laintiffs may not use other fede ral
statutes or state unfair competition laws as a vehicle to br ing a private cause of action that is based on violations of the FDCA.” ). The question, then, i s how t o deter min e whether a claim formally asser ted under state l aw is in substance one seeking to enfor ce the FDCA. The Supreme Court supplied the test in Buck man : I f the claim would not exis t in the absenc e of the FDCA, it is impliedly pree mpted. 531 U.S. at 353.
I n other wor ds: [T] he conduct on which the claim is premised must be the ty pe of conduct that would traditionally g ive rise to liability under state law—and that would g ive rise to liability - 4 -No. 10-4274

Loreto, et al. v. Procter & Gamble Co.

under state law even if the FDCA had never been enac ted. I f the defe ndant’s conduct is not of this ty

pe, then the plaintiff is eff ectively suing for a violation of the FDCA (no matter how th e p l ai n t i ff labels the claim), and the plaintiff’s claim is thus impliedly pree mpted under Buck

man . Riley , 625 F. Supp. 2d at 777. I n Buck man , for e x ample, the Court dee med pre empted a state tort claim that the defe ndant defr auded th e FDA in the course of obtaining approva l for its medical device s and that, as a result, the device s improperly obtained marke t clea ranc e and wer e later used
to the plaintiffs’ detriment. The claims, the Court held, did not rely on “tra ditional s t at e tort law which had preda ted” the FDCA, for the Act’s exis tence was “a critica l element” of t he plaintiffs’

case. 531 U.S. at 353. I n other words, wer e it not for the fede ral reg ulatory scheme the FDCA

cre ated, ther e would have been no f raud tha t could support the tort claim.
I n this case , plaintiffs have asser ted claims under state consumer- protec tion laws based upon two differ ent theorie s, only one of w hich is impli edly pree mpted by

the FD CA. First, the pree mpted theory

. Plaintiffs alleg e that Procter & Gamble omitted telling

consumers that its products wer e “illeg al,” and had p la in tiffs known it, they wouldn’t have purcha sed the products. The products wer e illega l, plaintiffs maintain, beca use their labeling did not comply with the FDCA’ s require ments. This theory of liability depends entirely upon an FDCA violation— i.e. , the only rea son Procter & Gamble’ s products wer e alleg edly “illeg al” was beca use they failed to comply with FDCA l ab el i n g require ments. The theory is impliedly pree mpted by fede ral law

. Apar t from t h i s cl ear ly pree mpted theory , plaintiffs also alleg e that Procter & Gamble violated state law when it repr esente d to the public that taking Vitamin C can blunt the eff ects of a - 5 -No. 10-4274

Loreto, et al. v. Procter & Gamble Co.
cold, a statement plai n t i ffs contend is false or misleading

. These statements alleg edly induced plaintiffs to purcha se the adver tised products instead of a lower- price d competitor’s product not containing Vitamin C. This theory relies solely on traditional state tort law preda ting the FDCA, and would exis t in the absenc e of the Act. Buck man , 531 U.S. at 353. This claim is not preempted.
To be sure, the complaint does include extensive ref ere nce to a war

ning letter the FDA issued
to Procter & Gamble conce rning its products, which might sug g est plaintiffs’ sec o n d t h eo ry also depends upon the FDCA. That letter war ns that FDA reg ulations do not permit combining Vitamin C with any of the active ingr edients contained in Day Quil and Ny Quil in part beca use the evidenc e is “insufficient to cla ssify vitamin C as safe and effec tive” for over- the-c ounter use. Even thoug h the FDA has appar ently conclude d that Vitamin C has not been proven eff ective in cold trea tment, plaintiffs’ claim does n o t depend upon this deter mination and would logic ally exis t even in its absenc e. Cf. In re Epogen , 590 F. Supp. 2d at 1291 (“[S] ome false statements made in connec tion with presc ription drug marke ting are actionable under state or fede ral law, even if their truth may be
g ener ally within the purview of the FDA .” (c itation and internal quotation marks omitted))

. B. The district court alterna tively held that plaintiffs failed to state a claim under New J erse y ’s Consumer Fr aud Act beca use they did not plausibly alleg e an “asc erta inable loss.” N.J

. Rev. Stat. § 56:8-19; see Bosland v. W arnock Dodge, Inc. , 964 A.2d 741, 749 (N.J. 2009) (an asce rtainable loss is “without any

question” an e lement of a private pla intiff’s prima fa cie c ase unde r the Ac t).

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Loreto, et al. v. Procter & Gamble Co.

“Asc erta inable loss” is not define d in t h e s t at u t e, and “[t] here is littl e that illumi nates the
prec ise meaning that the L eg islature intended in respe ct of the term.” Thiedemann v. Merc edes- Benz USA, LLC , 872 A.2d 783, 792 (N.J. 2005). Recog nizi ng this ana l y t i ca l v o i d , the New J erse y Supreme Court offe red guida nce i n T h i ed em a n n . I n order to rea ch a jury , the court instructed, “a private plaintiff must produce evidenc e from which a fac tfinder could find or infer that the plaintiff suffe red an actual loss .” Id. (empha sis a dded). An “out-of -pocke t loss” will do. Id. Moreove r, a plaintiff’s burden at summary judgme nt is to put forth “e vidence of loss that is not hy pothetical or illusory ”; he must prese nt the evidenc e “with some cer tainty demonstrating that it is capa ble of calc ulation.” Id. ; see also Bosland , 964 A.2d at 749–50 (an asce rtainable l o s s i s “quantifiable or

measura ble,” not “me rely

theore tical”)

. Her e, plaintiffs alleg e that they suffe red an out-of-poc ket loss when they purcha sed Day Quil or Ny Quil Plus Vitamin C inst ead of a lower -price d competing cold medicine tha t did not contain the vitamin. The district court found this loss insufficient as a matter of law. I n its view, plaintiffs suffe red no loss in the absenc e of any alleg ation that the product failed to trea t their colds, one plaintiffs never made. I n other words, plaintiffs rec eived prec isely what they paid for—a n eff ective cold re medy

. The district court err ed by ignor in g t h e al leg ation that plaintiffs would have purcha sed a lower- price d cold re m edy (thus saving money ) wer e it not for Procter & Gamble’ s alleg ed misrepre sentations. The “quantifia ble or measura

ble” loss in this case is the differ ence in price

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Loreto, et al. v. Procter & Gamble Co.

betwee n Procter & Gamble’ s product and a lower- price d competing product. The products’ overa ll 2 eff ectivene ss in trea ting pla in ti f f s ’ c o ld sy mptoms does not underc ut a showing of asce rtainable loss. Cf. Desiano v. W

arner-Lambert Co. , 326 F.3d 339, 349–50 (2d Cir. 2003) (finding loss sufficie nt to support a similar claim under New J erse y ’s Consumer Fr aud Act, explaining that the plaintiffs’ claim was “unaf

fec ted” by whether any one was phy sically injured by the defe ndant’s drug ; the fac t that the plaintiffs purcha sed the defe ndant’s product instead of a chea per alterna tive was sufficie nt
to demonstrate loss); In re Baye r Corp. Combination Aspirin Prods. Mktg. & Sales Practices Liti g. , 701 F. Supp. 2d 356, 380–81 (E.D. N.Y. 2010) (allowing a simil ar claim under New Jersey law to
p ro ce ed , noting that the pl aintiffs’ inabilit y to point to any phy sical i njuries from the product was “immateria l”; economic loss exis ted wher e, as here , the plaintiffs alleg ed that the defe ndant’s misrepre sentations wer e the very rea son plaintiffs purcha sed the product); In re Bex tra & Celebrex Mktg., Sales Practices & Prod. Liabil ity Liti g. , No. MDL 05–01699, 2 0 0 7 W L 2028408, at *5–6 (N.D. Cal. J uly 10, 2007) (finding economic loss wher e the plaintiffs alleg ed “that phy sicians
presc ribed Celebrex and insurers paid for it prec isely beca use defe ndants falsely marke ted it as having few er g astrointestinal sy mptoms than the [cheape r] available over- the-c ounter NSAI Ds”; “in other words, plaintiffs could have and would have rec eived exactly the same relief at a much lower cost but for de fenda

nts’ dece ption”).

Although plaintiffs seek a ref und of the full purcha se price , even if they preva il, they are not 2 entitled to one. Their claim is that they would have purcha sed a lower- price d product not containing Vitamin C but for the misrepre sentation, not that they would have fore g one purcha sing any product. - 8 -No. 10-4274

Loreto, et al. v. Procter & Gamble Co.

I V.
Procter & Gamble offe rs alterna tive g rounds for aff irming. See Harchar v. United States ( In

re Harchar) , 694 F.3d 639, 644 (6th Cir. 2012) (“We may aff irm the district court’s dismiss al of a plaintiff’s claim on any prese rved g round, including a g round not relied upon by the district court.” ). First, P rocte r & Gamble contends that plaintiffs lack Ar t i cl e I I I standing beca use t hey can demonstrate no “injury in fac t.” See Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560 (1992). This
arg ument simply repa ckag es the company ’s ar gu ment reg arding asce rtainable loss. Plaintiffs’ alleg ation that they suffe red a monetary loss by pay i n g m o re for a cold reme dy beca use of the
company ’s misrepre sentation establishes a c og nizable injury

. The case s Procter & Gamble relies upon are inapposite. See Rivera v. W yeth- Aye rst Labs. , 283 F.3d 315, 319–21 (5th Cir. 2002) (finding no leg al injury wher e the plaintiffs purcha sed a drug that failed to war

n of possible side-ef

fec ts y et perf

ormed as expected; howeve r, the plaintiffs did not alleg e that they would have purcha sed a lower- price d alterna tive but for the failure to war n); Medle y

v. Johnson & Johnson Consumer Cos. , No. 10-cv- 02291, 2011 WL 1596 7 4 , at * 2 & n.2 (D.N.J.
J an. 18, 2011) (holding that there was no injury wher e par ents who purc hased baby shampoo used the product without adver se health eff ects and only l at er d i s cover ed that the product contained a potentially

harmful c hemical; howe ver, the pare nts never alleg ed an economic injury from pay ing

a premium for the product); W illiams v. Purdue Pharma Co. , 297 F. Supp. 2d 171, 177–78 (D.D.C. 2003) (finding no standing wher e the plaintiff suffe red no phy sical injury from the drug , declining
to rec og nize an economic injury based on the claim that the drug ’s price was inflated beca use of false

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Loreto, et al. v. Procter & Gamble Co.

adver tising; howeve r, the plaintiff never claimed h e w o u ld h a ve purcha sed a lower- price d alterna tive but for the a dvertising ). Second, Procter & Gamble contends that plaintiffs’ claims fail beca use the four statements
upon which they are based—se t forth in section I above—a re neither false nor plausibly misleading

. We ag ree with respe ct to all but one statement: “Vitamin C: I t won’t cure a cold, but vitamin C can help blunt its eff

ects.” I t is plausible that plaintiffs could prove that Vitamin C either has no eff ect 3

on cold sy

mptoms or has such a mar g inal eff ect that a dvertising its abilit y to blunt cold sy mptoms

cre ates a “ca

pacity to mislead” the aver ag e consumer. Union Ink Co. v. AT& T Corp. , 801 A.2d 361, 379 (N.J. S u per. Ct. App. Div. 2002); see also Miller v. Am. Family Publishers , 663 A.2d 643, 653–54 (N.J. Super. C t. Ch. Div. 1995) (“ [A] claim of litera l truth will not constitute a defense to

a char g e that the overa ll impre ssion c rea ted by an adver tisement is misl eading and dec eptive to a n ordinary rea der.” ). The company responds that the statement, “take n in its en t irety , clea rly and expressly disclaims the usefulness of vitamin C as a cure for colds .” (E m phasis added.) True
enoug h, but the statement g oes bey ond disclaiming the vitamin’s ability to cure a cold; it claims the vitamin can blunt the effects of a cold , a claim plaintiffs have plausibly alleg ed is false or misleading

.
The complaint states no basis upon which to c onclude that the three rema ining statements 3 are false, and any alleg ation that they are misleading to aver ag e consumers is implausible. Although the statement “Consider taking extra vitamin C , v i t am i n A, and zinc, all of which may help y ou” prese nts a somewhat closer question, we ultimately find that the stat em en t ca n n o t be misleading beca use it does not state that the listed produ cts will do any thing, only that they might. See New Jerse y Citi zen Action v. Schering-P lough , 842 A.2d 174, 177 (N.J. Super. App. Div. 2008) (holding that, to be ac tionable under the New J erse y Consumer Fr aud Ac t, alleg edly misleading statements must be “stateme nts of fac t”); W endli n g v. P

f i z er , Inc. , No. L -348-04, 2008 WL 833549, at *3–5 (N.J. S uper. A

pp. Div. Mar. 31, 2008) (per curia m) (same ). - 10 -No. 10-4274

Loreto, et al. v. Procter & Gamble Co.

V. Finally , the district court dismiss ed plaintiffs’ claims under the consumer- protec tion laws of the other forty -nine States beca use it found plaintiffs could state none of their own claims. Now that

we have revive d a portion of plaintiffs’ New J erse y statutory claim, the district court’s rationale no longe r applies. I n the ordinary case , we would reinstate the claims and allow the di strict co u rt on

rema nd to consider whether class trea tment is appropr iate. See Glazer v. Chase Home Fin. LLC , — F.3d — , 2013 WL 141699, at *3 n.2 (6t h Cir. J an. 14, 2013). Howeve r, in view of our rec ent decisio n in Pilgrim that a fede ral district court in Ohio could not cer tify a nationwide class of members asser

ting consumer- protec tion claims under all fifty Stat es g iven Ohio’s choice -of- law rules and the m ater ial differ ence s betwee n the S tates’ c onsumer-pr otection laws, 660 F .3d at 945, reinstating the claims would be f utile. There fore , we a ffirm the dismissal of these c laims.

VI

. For these rea sons, we reve rse the portion of the judgme nt dismiss ing plaintiffs’ claim under
New J erse y ’s C onsumer Fraud Act predic ated on Procter & Gamble’s st atement in its adver tising that Vitamin C “won’ t cure a cold, but

. . . can help b l u n t i t s ef fe ct s .” I n all other respe cts, we aff irm.

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