August Term, 2023 Argued: May 2, 2024 Decided: August 16, 2024

No. 23-642 ____________________

THEDA JACKSON-MAU, on behalf of herself and others similarly situated,

Plaintiff-Appellant,

v.

WALGREEN CO. and INTERNATIONAL VITAMIN CORPORATION,

Defendants-Appellees. ____________________ Before: JACOBS, SACK and SULLIVAN, Circuit Judges.

A consumer of a glucosamine-based dietary supplement brought a putative class action lawsuit against the supplement’s manufacturer (International Vitamin Corporation) and retailer (Walgreen Co.) under New York law. The complaint alleged that the supplement was mislabeled because it contained a different formulation of glucosamine than the one displayed on the front of the label and disclosed as the main ingredient on the side. The United States District Court for the Eastern District of New York (Block, J.) granted summary judgment for the defendant companies on federal preemption grounds, and the consumer appealed. We hold that the consumer’s state law mislabeling claims are expressly preempted by the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq., and we AFFIRM the judgment of the district court.

____________________

PHILIP M. BLACK (Carl L. Stine, Matthew Insley-Pruitt, on the brief), Wolf Popper LLP, New York, NY, for Plaintiff-Appellant Theda Jackson-Mau.

JEAN-CLAUDE ANDRÉ, Bryan Cave Leighton Paisner LLP, Santa Monica, CA (Annie J. Avery, Mark K. Kanow, Elliot Averett, Bryan Cave Leighton Paisner LLP, Santa Monica, CA; A. Elizabeth Blackwell, Darci F. Madden, Stefani L. Wittenauer, Bryan Cave Leighton Paisner LLP, St. Louis, MO; Courtney J. Peterson, Bryan Cave Leighton Paisner LLP, New York, NY, on the brief), for Defendants-Appellees Walgreen Co. and International Vitamin Corporation. DENNIS JACOBS, Circuit Judge:

Glucosamine is a natural chemical compound that is widely used as a dietary supplement to alleviate pain caused by osteoarthritis. Plaintiff-Appellant Theda Jackson-Mau is a former consumer of a glucosamine supplement manufactured by International Vitamin Corporation (“IVC”) and sold by

2 Walgreen Co. (“Walgreens”) (collectively, “Defendants”). In 2018, Jackson-Mau brought a putative class action lawsuit in the United States District Court for the Eastern District of New York (Block, J.), asserting three causes of action under New York law: deceptive business practices, in violation of N.Y. Gen. Bus. Law § 349, 1 breach of contract, and unjust enrichment. The complaint alleged that the dietary supplement that she purchased was mislabeled because it contained a different formulation of glucosamine than the one displayed on the front of the label and disclosed on the label’s Supplement Facts panel. The district court granted summary judgment for Defendants on federal preemption grounds and dismissed Jackson-Mau’s complaint.

The decisive question is whether Jackson-Mau’s state law mislabeling claims are wholly preempted by the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301 et seq., which establishes national standards for the labeling of dietary supplements. We hold that Jackson-Mau’s state law claims are preempted, and we AFFIRM the judgment of the district court.

1N.Y. Gen. Bus. Law § 349(a) “declare[s] unlawful” “[d]eceptive acts or practices in the conduct of any busines