Second Circuit Clarifies the Reach of FDCA § 379r(a): Marketing and Pricing Claims for OTC Drugs Are Pre-empted When Success Would Impose Additional Label Requirements

1. Introduction

In Collaza v. Johnson & Johnson Consumer Inc., No. 24-2568-cv (2d Cir. Aug. 6, 2025), the United States Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action challenging the marketing, pricing, and labeling of Tylenol Extra Strength Rapid Release Gelcaps (“Gelcaps”). Although the plaintiff abandoned her labeling theory, she pressed state-law deceptive marketing and pricing claims under New York General Business Law (“GBL”) §§ 349 and 350, and an unjust-enrichment claim.

The district court (S.D.N.Y., Carter, J.) had held that all claims were expressly pre-empted by 21 U.S.C. § 379r(a), the Federal Food, Drug, and Cosmetic Act (“FDCA”) provision that bars state “requirements” for non-prescription drugs that are “different from or in addition to” federal requirements. The Second Circuit agreed, ruling that success on the marketing and pricing theories would necessarily impose additional label or disclaimer obligations beyond those approved by the Food and Drug Administration (“FDA”). Consequently, the court reiterated and, for the first time in a published Second Circuit opinion, explicitly applied § 379r(a) pre-emption to non-label OTC drug communications when those communications hinge on core FDA-regulated terminology.

2. Summary of the Judgment

• Holding: The FDCA expressly pre-empts state-law deceptive marketing and pricing claims regarding over-the-counter acetaminophen gelcaps because the challenged statements incorporate FDA-regulated terms (“rapid release”) and any finding of deceptiveness would require additional or different label disclosures.
• Disposition: Affirmance of the district court’s Rule 12(b)(6) dismissal.
• Scope: Although issued as a Summary Order (non-precedential under 2d Cir. R. 32.1.1), the decision provides the clearest Second Circuit guidance to date on § 379r(a)’s reach beyond product labels.

3. Analysis

3.1 Precedents Cited

The Second Circuit grounded its reasoning in both Supreme Court authority on pre-emption and a series of district-court opinions that had confronted the identical “rapid release” acetaminophen question:

• Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) – foundational case on congressional intent and pre-emption.
• Critcher v. L’Oréal USA, Inc., 959 F.3d 31 (2d Cir. 2020) – applied identical cosmetic-drug pre-emption language; underscored that the FDCA bars not only conflicting but additional state requirements.
• District-court decisions on “rapid release” gelcaps:
  • Morgan v. Albertsons Cos., 2023 WL 3607275 (N.D. Cal. Mar. 13, 2023)
  • Sapienza v. Albertsons Cos., 2022 WL 17404919 (D. Mass. Dec. 2, 2022)
  • Bischoff v. Albertsons Cos., 678 F. Supp. 3d 518 (S.D.N.Y. 2023)
  • Muskiar-Rosner v. JJCI, 2024 WL 3596897 (D. Mass. July 31, 2024)
  • Counterweight: Edwards v. Walmart, Inc., 2019 U.S. Dist. LEXIS 230993 (C.D. Cal. Apr. 18, 2019) (unpublished) – reached the opposite conclusion, but the panel implicitly rejected its reasoning.

By aligning itself with Morgan, Sapienza, and Bischoff, the Second Circuit effectively standardised the pre-emption analysis across jurisdictions that had been fractured by Edwards.

3.2 Legal Reasoning

1. Textual approach. The court began “as in any statutory exercise” with the text of § 379r(a), emphasising Congress’s choice of the expansive phrase “any requirement,” which includes “public communication” (defined in § 379r(c)(2)).
2. FDA regulatory landscape.
   • 1988 Tentative Final Monograph (“TFM”) for acetaminophen – codified in 2020 via the CARES Act – sets dissolution standards for “immediate release.”
   • Two FDA guidance documents elaborate 80 % dissolution in 30 minutes as the benchmark for “immediate” or “rapid” release.
   Plaintiff conceded that JJCI’s Gelcaps satisfy these standards and may lawfully bear the descriptor “rapid release.”
3. Necessary implication test. If a jury ruled that JJCI’s marketing of “rapid release” or its premium pricing were deceptive because the Gelcaps do not work faster than cheaper tablets, JJCI would have to add a comparative disclaimer to its label and advertising. That new disclosure is “different from or in addition to” federal requirements, triggering express pre-emption.
4. No carve-out for non-label media. The plaintiff tried to cabin her claims to website and advertising statements, but the panel rejected any distinction between label and non-label communications when the substance of the challenged message is FDA-controlled terminology.
5. Statute-of-limitations footnote. Even assuming some affirmative misstatement escaped pre-emption, none were pleaded inside New York’s three-year limitations period.

3.3 Impact of the Decision

Though technically non-precedential, Collaza is likely to be cited heavily for its well-articulated rule:

• In the Second Circuit, OTC marketing and pricing claims are just as vulnerable to FDCA pre-emption as labeling claims whenever success would require additional or different disclosures affecting the label.
• Brands can invoke § 379r(a) at the pleading stage to defeat state consumer-protection suits aimed at federally-regulated OTC drug terminology.
• Plaintiffs seeking to avoid pre-emption must plead misstatements unrelated to FDA-defined terms or demonstrate that the challenged claim falls within § 379r(b)’s narrow exceptions (e.g., product safety recall, manufacturing violations)—routes not explored here.
• The decision narrows the viability of price-premium theories concerning OTC drugs, because any allegation that a higher price implies superior efficacy will likely collide with FDA labeling permissions.

4. Complex Concepts Simplified

• FDCA § 379r(a) (Express Pre-emption). A federal statute that forbids states from imposing any extra or different requirements on non-prescription drug labels or related communications. Think of it as a “one federal voice” rule: once the FDA has spoken, states may not add their own speech mandates.
• Tentative Final Monograph (TFM). A comprehensive FDA framework—here for acetaminophen—specifying when a drug is “generally recognised as safe and effective.” Although “tentative” in name, the CARES Act converted many TFMs into binding administrative orders in 2020.
• Immediate / Rapid Release vs. Dissolution. Dissolution measures how quickly a pill breaks apart in liquid. FDA says an “immediate release” acetaminophen product must dissolve 80 % within 30 minutes; if it does, a manufacturer may lawfully market it as “rapid release.”
• Express vs. Implied Pre-emption. Express pre-emption is written directly into a federal statute (like § 379r(a)), whereas implied pre-emption arises from conflict or field dominance even without explicit language.
• GBL §§ 349 & 350. New York statutes prohibiting deceptive business practices and false advertising. They allow private suits but are limited by a three-year statute of limitations.

5. Conclusion

Collaza v. Johnson & Johnson Consumer Inc. cements the principle that, for over-the-counter drugs, federal authority over labeling terminology can simultaneously shield associated marketing and pricing strategies from state-law attack. By holding that § 379r(a) pre-emption applies whenever the success of state deceptive-practice claims would obligate a manufacturer to add disclaimers or change FDA-sanctioned language, the Second Circuit has significantly curtailed the litigation avenues open to consumers challenging OTC drug efficacy representations.

Practitioners should now scrutinise whether contested advertising statements merely echo FDA-approved label language. If they do, pre-emption is a formidable—often fatal—defence. Conversely, future plaintiffs must identify claims wholly independent of FDA-regulated terminology or exploit statutory exceptions. In the evolving interplay between federal drug regulation and state consumer protection, Collaza tilts the balance decisively toward a uniform national standard.