The First Circuit recently overturned a district court ruling dismissing a class action against CVS Caremark Corp. Kaufman v. CVS Caremark Corp., 16-1199 (1st Cir., order entered September 6, 2016).

The original complaint, filed in May 2014, claimed that CVS markets, sells and distributes vitamin E products that they represent as supporting “heart health.” The plaintiff alleged the retailer’s “heart health” and “supports heart health” statements were false, misleading and reasonably likely to deceive the public.

The district court ruled that the suit was preempted by the Food, Drug, and Cosmetic Act (FDCA), dismissing the complaint. The three-judge panel for the First Circuit disagreed. While finding that CVS would be protected by the safe harbor of FDCA if its label met the requirements of section 343(r), the panel ultimately decided that Kaufman adequately pled that the labeling does not meet the statutory requirements.