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Bridget Crozier v. Johnson & Johnson Consumer Companies

September 28, 2012


The opinion of the court was delivered by: Simandle, Chief Judge:



Plaintiffs Bridget Crozier and Marguerite McNamee have brought these putative class actions alleging that Defendant Johnson & Johnson Consumer Companies Inc. has violated the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1, et seq, as well as the implied warranties of merchantability under N.J.S.A. § 12A:2-314, and of fitness under N.J. Stat. Ann. § 12A:2-314, in connection with the sale of Neosporin NEO TO GO! first aid antiseptic/pain relieving spray.

This matter comes before the Court on Defendant's Motions to Dismiss [Civ. No. 12-0008, Docket Item 4; Civ. No. 12-0010, Docket Item 4]*fn1 Plaintiffs' New Jersey Consumer Fraud Act ("NJCFA") and breach-of-warranty claims. The Court finds that federal law preempts any claims relating to the spray's label. In terms of the spray's advertising, the Court finds that Plaintiffs failed to state plausible claims for relief. The Motion to Dismiss will be granted. The NJCFA claims will be dismissed without prejudice, and the breach-of-warranty claims will be dismissed with prejudice.


The procedural history of the two cases, the factual and legal allegations contained in Plaintiffs' Complaints, and the arguments in Defendant's Motions to Dismiss are now discussed.

A. Procedural History

Plaintiffs Bridget Crozier and Marguerite McNamee both filed lawsuits against Johnson & Johnson Consumer Companies Inc. ("J&J")*fn2 in New Jersey Superior Court, Camden County Law Division. The Complaints in both cases were virtually identical. Defendant removed both cases to this Court. The Court has jurisdiction over these actions pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), because they are putative class actions having at least minimal diversity of citizenship, an aggregate amount in controversy in excess of $5,000,000, and 100 or more class members. The two cases were consolidated for pre-trial purposes. [Docket Item 16.] Defendant has filed identical Motions to Dismiss in both cases. This Opinion addresses both motions.

B. Factual Background

Plaintiff Bridget Crozier filed a lawsuit individually and on behalf of other similarly situated individuals in New Jersey who purchased Neosporin NEO TO GO! first aid antiseptic spray since the product was introduced "in or around 2008." [Docket Item 1, Ex. A.]; (Compl. ¶ 6). Plaintiff Marguerite McNamee filed an identical Complaint. [Civ. No. 12-0010, Docket Item 1, Ex. A.]

Defendant J&J produces over-the-counter medications, including Neosporin antibiotic ointments and NEO TO GO antiseptic spray. (Compl. ¶ 2.) Neosporin antibiotic ointment's intended use is "the prevention of infection and pain relief at the sites of scratches, cuts and other minor wounds." (Id. ¶ 29.) It contains three antibiotics as active ingredients. (Id. ¶ 30.) J&J also produces Maximum Strength Neosporin, which contains the same three antibiotics and also a pain reliever. (Id. ¶ 31.) Both Neosporin antibiotic ointment and Maximum Strength Neosporin are "sold in boxes that, in an attempt to capitalize on the product's established goodwill and reputation, prominently display the Neosporin Signature Gold Mark and Neosporin Trade Dress." (Id. ¶ 32.) J&J also makes Neosporin NEO TO GO! Single Use Packets, which are "single use packets which each contain a single dose of original Neosporin antibiotic ointment." (Id. ¶ 34.)

In addition to these antibiotic ointments, J&J produces Neosporin NEO TO GO! spray, which is the subject of this action. The spray "uses Benzalkanium Chloride as the active First Aid Antispetic," and its label identifies this active antiseptic ingredient. (Compl. ¶ 43.) It is sold in 7.7 ml (0.26 oz) spray bottles and "is specifically designed to fit anywhere to give you infection protection anytime, anywhere." (Id. ¶ 35.)

The antiseptic spray does not contain antibiotics, but Plaintiffs allege that the spray "is manufactured, marketed, advertised, and distributed in a manner that intentionally, recklessly, and/or negligently confuses and misleads consumers, including Plaintiff[s], into believing that they have purchased a product that contains antibiotics." (Id. ¶ 36.) The spray is allegedly marketed and labeled with the same green and yellow color scheme, Signature Gold Mark, trade dress, and goodwill and reputation that are associated with Neosporin, Neosporin Maximum Strength, and NEO TO GO! Single Use Packets, all of which contain antibiotics. (Id. ¶ 37.)

The Neosporin family of products also includes non-antibiotic products, such as Lip Treatment, Athlete's Foot Cream, Athlete's Foot Spray Powder, Athlete's Foot Spray Liquid, and Jock Itch Cream. (Id. ¶ 39.) These non-antibiotic products are not marketed with the "Neosporin Signature Gold Mark or the Neosporin Trade Dress and therefore do not capitalize on the goodwill and antibiotic reputation associated with each of them."

(Id. ¶ 40.)

Plaintiffs also allege that the spray is "significantly and exponentially more expensive . . . for a much smaller volume" than other brand name topical antiseptic products. (Id. ¶ 42.) The spray, which contains 7.7 milliliters, costs $4.00 to $7.00. (Id. ¶ 42.) A 16-ounce bottle of a common antiseptic typically sells for less than one dollar. (Id. ¶ 42.) Plaintiffs state that "[t]he extraordinary and unreasonable price differential between the subject spray and common antiseptic products can only be explained by the fact that Johnson & Johnson has intentionally, recklessly, and/or negligently misled consumers into believing that the subject spray contains antibiotic ingredients." (Id. ¶ 44.) Plaintiffs allege that consumers believe that "they are paying a higher price for the extra infection prevention that is provided by an antibiotic, when in fact the spray contains no antibiotics whatsoever." (Id. ¶ 44.)

Plaintiffs allege two counts. Count I alleges that J&J has violated the New Jersey Consumer Fraud Act ("NJCFA"). Plaintiffs allege that Defendant's actions constitute "unconscionable commercial practices, misrepresentations, concealment, suppression, or omission of material facts with the intent that Plaintiff[s] and members of the proposed class would rely on such concealment, suppression, or omission." (Id. ¶ 47.) Plaintiffs allegedly suffered "a measurable and easily-calculable economic loss between the value of an antiseptic and the cost of the subject spray." (Id. ¶ 49.)

Count II alleges that J&J breached implied warranties of merchantability and fitness for a particular purpose. Plaintiffs relied on J&J's "representations about the character, quality, and/or recommended uses of NEO TO GO! spray," (Id. ¶ 54), and J&J's "misleading marketing and advertising" breached implied warranties, (Id. ¶ 55). Plaintiff also alleges that "[t]hese breaches of warranties were substantial factors in inducing Plaintiff[s] and other New Jersey residents to purchase NEO TO GO! spray, and falsely indicated that the spray would provide infection protection in a manner similar to Johnson & Johnson's product lines." (Id. ¶ 55.)

C. Defendant's Motions to Dismiss

Defendant filed identical Motions to Dismiss pursuant to Fed. Rule Civ. P. 12(b)(6). [Docket Item 4.] Defendant argued that Plaintiffs' claims are preempted by federal law and that Plaintiffs did not state a claim for relief under New Jersey law.*fn3

J&J argued that the spray is labeled in accordance with federal regulations and that federal regulations regarding over-the-counter medications prohibit states from imposing different labeling requirements. J&J stated:

Plaintiff asserts that state law imposes additional or different requirements - either adding a disclaimer of antibiotic content to the federally mandated ingredient label, or removing Defendant's lawful trademark and trade dress. . . . Those different and additional requirements would be preempted. . . . (Def. Mem. Law Supp. Mot. Dismiss, at 2.)

J&J also argued that Plaintiffs did not state a claim under the NJCFA because Plaintiffs failed to plead elements required under the NJCFA and failed to state with particularity the alleged circumstances constituting fraud. In addition, J&J argued that Plaintiffs do "not allege that Defendant made any affirmative statement, either on the product label or in any advertising, that Neo to Go! spray contains antibiotics." (Id. at 10.) J&J noted that "[e]ntirely absent from the Complaint are any allegations that Defendant ever actually stated that Neo To Go! spray contained antibiotics; any allegations that the product failed to provide infection protection; and any specific allegations all [sic] relating to Plaintiff's purchase." (Id. at 4.)

And finally, J&J argued that Plaintiffs' warranty arguments "are duplicative and defective" because Plaintiffs did not allege that the spray was "unfit for its ordinary purpose" or that the Plaintiff had any "particular purpose," of which Defendant had reason to be aware, that was different from the spray's "ordinary purpose." (Def. Mem. Law Supp. Mot. Dismiss, at 26-27.) J&J argued that Plaintiffs' warranty claims were "a restatement" of the NJCFA claim. (Id. at 26.)

III. Standard and Scope of Review

The Court next addresses the standard and scope of its review. The Court outlines the standard of review for a motion to dismiss in federal district court and rejects Plaintiffs' argument that the New Jersey state court standard of review, N.J. Rule Civ. P. 4:6-2(e), should apply. In addition, the Court explains which materials it can consider at this procedural posture. Finally, the Court explains why it cannot deny Defendant's motion to dismiss simply because Plaintiffs have noted prior state and federal cases in which J&J was a party.

A. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint will survive a motion to dismiss if it contains sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court must accept as true all factual allegations in a complaint, that ...

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