FDCA preempts arguments that structure/function claims in fact mislead about disease prevention

Dachauer v. NBTY, Inc., — F.3d —-, 2019 WL 150016, No. 17-16242 (9th Cir. Jan. 10, 2019)Defendants make vitamin E supplements that claim, on their labels, to “support cardiovascular health” and to “promote[ ] immune function,” “immune health,” “heart health,” and “circulatory health.” Dachauer alleged false advertising, because the supplements do not prevent cardiovascular disease and might increase the risk of all-cause mortality. The district court granted summary judgment, and the court of appeals affirmed, mostly on the alternate ground of preemption. The FDCA distinguishes between “disease claims” and “structure/function claims” for dietary supplements. A structure/function claim “describes the role of a nutrient or dietary ingredient intended to affect the structure or function in humans” or “characterizes the documented mechanism by which a nutrient or dietary…

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