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Milton Mills, M.D. v. Giant of Maryland

August 2, 2006


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiffs-Milton Mills, Rashid Gholson, Hua-Wei Cherng, Norma Humphries, Lynette Garner, Darrell Bransome, Paul Miller, Glenda Costner, Sybil Harold, and Elizabeth Russell- bring this putative class action on behalf of "all those lactose intolerant persons who, unaware of their condition, have purchased milk in Washington, D.C., and suffered the consequences of their condition." Compl. ¶ 29. Plaintiffs seek injunctive relief and an award of damages as a result of what they allege was the defendants'-Giant of Maryland, LLC; Safeway, Inc.; Horizon Organic; Dean Foods Co.; Nestle Holdings, Inc.; Farmland Dairies, LLC; Shenandoah's Pride, LLC; Stonyfield Farm, Inc.; and Cloverland Farms Dairy, Inc.-"negligent failure to warn causing personal injury." Id. at 15. Plaintiffs additionally assert a products liability claim premised on defendants' sale of milk without proper warning labels. Before the court are defendants' motions to dismiss.*fn1 Upon consideration of the motions, the oppositions thereto, the record of this case, and the argument of counsel at a hearing, the court concludes that plaintiffs' claims must be dismissed.


Plaintiffs seek to focus attention on what is purported to be a widespread, but largely unrecognized, health problem-lactose intolerance. This condition results from the absence of lactase enzymes that facilitate the digestion of lactose, the sugar found in milk. Following the consumption of milk and milk-products, those who suffer from lactose intolerance exhibit symptoms including "flatulence, bloating, cramps, and diarrhea." Compl. ¶ 2.

According to plaintiffs, while nearly all infants and young children are able to digest lactose, lactose intolerance is pervasive among adults. Plaintiffs assert that "75% of the world's population, including 90% of Asian Americans, 90% of Native Americans, 60% to 80% of African Americans, 50% to 80% of Latinos, and 6% to 22% of Caucasians are lactose intolerant." Id. ¶ 3.

Notwithstanding the vast number of people allegedly afflicted with lactose intolerance, plaintiffs insist that the extent to which people suffer from this condition has been minimized by the milk industry and "the government's marketing efforts." Id. ¶ 6. Plaintiffs maintain that defendants, with the aid of the government, have propagated the myth that milk is a necessary part of a healthy diet while simultaneously stifling information about the incidence of lactose intolerance.

Because of the limited dissemination of information about the scope of lactose intolerance, plaintiffs contend that many individuals remain unaware that they suffer from this illness. Plaintiffs, for example, are all individuals who, "unaware of their lactose intolerance, have unwittingly been subjected to gastrointestinal pain and discomfort by purchasing and consuming milk sold by defendants." Id. ¶ 8.

In order to address the public's ignorance of what plaintiffs allege is a common malady, plaintiffs request that defendants be enjoined from marketing their products in the District of Columbia until they adopt a warning label that alerts consumers about the possible risks of lactose intolerance.*fn2 In addition, the named plaintiffs seek money damages for the injuries they have suffered as a result of milk consumption.

Defendants now move to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn3


Defendants identify a number of bases for the dismissal of plaintiffs' complaint; foremost among them that plaintiffs' claims are preempted by federal legislation. Defendants rely upon two theories in support of their argument that the common law claims pursued by plaintiffs are preempted: explicit preemption-present when Congress's intent to preempt state law is "explicitly stated in the statute's language," Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977), and implied conflicts preemption-applicable "where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (quotations and citations omitted).

A. Preemption

The statutory basis for defendants' explicit preemption argument is found in Section 6 of the National Labeling & Education Act of 1990 ("NDEA"), 104 Stat. 2353, which added Section 403A to the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 343-1(a). Section 403A reads in pertinent part:

Except as provided in subsection (b), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce-(1) any requirement for a food which is the subject of a standard of identity established under section 341of this title that is not identical to such standard of ...

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