Carter
Carter v. Novartis Consumer Health, Inc.
Opinion
Opinion
Pfaelzer, J.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
Carter v. Novartis Consumer Health, Inc. , CV 08-0334 MRP (JCRx), is one of four substantially identical cases before this court, along with Ostergard v. Wyeth, CV 08-1817 MRP (JCRx); Ostergard v. Adams Respiratory Therapeutics, Inc., et al, CV 08-2574 MRP (JCRx); and Kotler v. Johnson & Johnson, CV 08-3023 MRP (JCRx). Defendants move to dismiss the each of these four cases pursuant to Fed. R.Civ.P. 12(b)(6) on the grounds of express and implied preemption. In addition, Defendants move to dismiss Plaintiffs’ consumer fraud claims for failure to satisfy the requirements of Fed.R.Civ.P. 9(b).
I. BACKGROUND
A. Regulation of OTC Cough & Cold Medicine
Over-the-counter (“OTC”) cough and cold medicines are governed by a set of Food & Drug Administration (“FDA”) regulations, called a monograph. See 21 C.F.R. § 330.1 ; Mem. P. & A. Supp. Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’ Mot.”) at 5-7. The monograph for OTC cough and cold medicines (the “OTC monograph”) was promulgated by the FDA based on a process that involved the recommendation of an advisory panel of independent experts, which evaluated the safety and effectiveness of OTC…