1st Cir. Refuses to Reinstate Lactaid Misbranding Action, Says Claims Preempted

BOSTON — The 1st Circuit U.S. Court of Appeals has upheld dismissal of a putative class action alleging that Lactaid products are misbranded as dietary supplements, ruling that the claims are impliedly preempted.

In a Sept. 18 opinion, the appellate panel explained that the plaintiff’s claims are based solely upon violations of the by the Food, Drug and Cosmetic Act, which contravenes the U.S. Supreme Court’s ruling in Buckman Co. v. Plaintiffs’ Legal Committee, which states that the FDCA provides no right of action.

Lactose intolerance is "characterized by abdominal cramps and diarrhea after consumption of food that contains lactose," …