OTC drugs). See id. § 352(a). 19 . 21 U.S.C. § 379r(a)(2). 20 . Wilbur v. Toyota Motox Sales, U.S.A., 86 F.3d 23, 26 (2d Cir.1996) (citing 15 U.S.C. § 2310(d)(1)). 21 . 15 U.S.C. § 2310(d)(3)(A). 22 . Taveras v. UBS, 513 Fed.Appx. 19, 22 (2d Cir.2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). 23 . Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir.2013) (citing Gorman v. Consolidated Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007)). 24 . 21 U.S.C. § 379r(a)(2). 25 . In re PepsiCo., Inc., Bottled Water and Sales Practice Litig., 588 F.Supp.2d 527, 538 (S.D.N.Y.2008) (emphasis added). 26 . Id. at 539. 27 . Def. Mem. at 7. 28 . Opp. Mem. at 9. 29 . Id. 30 . ' See, e.g., Red v. Kraft Foods, 754 F.Supp.2d 1137, 1141 (C.D.Cal.2010) (<HOLDING>) (internal citation omitted). 31 . Opp. Mem. at
holding that as a matter of state law nonmutual offensive issue preclusion does not apply against the state holding that state claims for fraudulent submissions to the fda were preempted holding that plaintiffs state claims were not preempted because defendant failed to show that these claims rested on standards other than those permitted by the fda holding that the logic of in re pepsico does not apply to state law claims that are premised on misrepresentations concerning subject matter that the fda has not endeavored to regulate holding that primary jurisdiction did not apply to claims of violation of fda regulations and guidance concerning all natural fresh antioxidant and other nutrient claims