Full opinion text
OPINION SUHRHEINRICH, Circuit Judge. These appeals arise from a multidistrict litigation action consolidating sixty-eight claims against both generic and brand-name manufacturers for personal injuries related to the use of the drug propoxy-phene (brand-name Darvocet or Darvon). Each plaintiff in this appeal (collectively “Plaintiffs”) ingested the generic form of the drug (with one exception), and each plaintiff alleges that the manufacturers and sellers of the generic form (“Generic Manufacturers”) continued marketing pro-poxyphene products after they knew or should have known the risks of the drugs exceeded their benefits. Most of the plaintiffs also seek to hold one or more of the manufacturers and sellers of the brand form (“Brand Manufacturers”) liable for injuries, alleging that they made misrepresentations about propoxyphene, which led Plaintiffs’ physicians to prescribe the generic equivalent of propoxyphene to Plaintiffs. The district court granted the various defendants’ motions to dismiss or for judgment on the pleadings and entered final judgment in each case. We affirm the district court entirely, except for its holding regarding the claims in Dickerson, which we reverse and remand for further proceedings. I. Background A. Statutory and Regulatory Background Under the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., drug manufacturers must gain approval from the United States Food and Drug Administration (“FDA”) before marketing any drug in interstate commerce. § 355(a). A manufacturer seeking approval to market a new drug must submit a New Drug Application (“NDA”), including “full reports of [all clinical] investigations,” § 355(b)(1)(A), relevant nonclinical studies, and “any other data or information relevant to an evaluation of the safety and effectiveness of the drug product obtained or otherwise received by the applicant from any source.” 21 C.F.R. §§ 314.50(d)(2) and (5)(iv) (2014). An NDA must also include “the labeling proposed to be used for such drug,” 21 U.S.C. § 355(b)(1)(F); 21 C.F.R. § 314.50(c)(2)® and “a discussion of why the [drug’s] benefits exceed the risks under the conditions stated in the labeling,” 21 C.F.R. §§ 314.50(d)(5)(viii); 314.50. The FDA may approve an NDA only if it determines that the drug is “safe for use” under “the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof.” 21 U.S.C. § 355(d). In deeming a drug safe, the FDA makes a judgment that the drug’s “expected therapeutic gain justifies the risk entailed by its use.” United States v. Rutherford, 442 U.S. 544, 555, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979). Originally, the same rules applied to all drugs, including generic drugs, which are designed to be copies of a previously approved “reference listed drug” (“RLD”). Because the process of submitting an NDA is onerous, Congress passed the Drug Price Competition and Patent Term Restoration Act of 1984, commonly called the “Hatch-Waxman Act,” to “ ‘make available more low cost generic drugs by establishing a generic drug approval procedure.’ ” PLIVA, Inc. v. Mensing, — U.S. —, 131 S.Ct. 2567, 2574, 180 L.Ed.2d 580 (2011) (citing H.R.Rep. No. 98-857, pt. 1, p. 14 (1984)). Under the Hatch-Waxman Act, a generic drug may be approved by an abbreviated new drug application (“ANDA”) showing that the drug is equivalent to its RLD and that “the [safety and efficacy] labeling proposed ... is the same as the labeling approved for the [brand-name] drug.” 21 U.S.C. § 355(j)(2)(A)(v). As a drug is used more widely under diverse conditions, new information regarding the risks and benefits of the drug may become available. All NDA (brand) and ANDA (generic) holders must monitor and review post-marketing adverse drug experience information, from all sources, and comply with FDA post-marketing report requirements. See §§ 355(j)(2)(A)(v); § 365(j)(4)(G); 21 C.F.R. §§ 314.94(a)(8), 314.127(a)(7). If significant new adverse information comes to light, the FDA may withdraw approval of the drug, 21 U.S.C. § 355(e), or advise the manufacturer to remove the product from the market. Br. of U.S. as Amicus Curiae Supporting Petitioner (“FDA Br.”), Mutual Pharm. Co., Inc. v. Bartlett, — U.S. —, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013) (No. 12-142), 2013 WL 314460, at *5 (U.S. Jan. 22, 2013). In other situations, new information changing the risk/benefit profile of the drug may be addressed through labeling changes. Id. The FDA has created procedures by which manufacturers can make changes to a drug’s approved labeling or other changes to an approved application. Drug manufacturers may submit either “Prior Approval Supplements,” which require FDA approval before the proposed change may be implemented, or “Changes Being Effected” (“CBE”) Supplements, under which the proposed change may be implemented before the FDA has acted on the supplemental application. 21 C.F.R. § 314.70(b), (c). While most changes to a drug’s approved labeling must be requested through a Prior Approval Supplement, manufacturers may “add or strengthen a contraindication, warning, precaution, or adverse reaction” through a CBE supplement. See §§ 314.70(b)(l)(i), § 314.70(c)(6)(iii)(A). Under current regulations, brand-name and generic manufacturers have different labeling responsibilities, even though both are authorized to use the label supplement procedures. 21 C.F.R. § 314.97. Generic manufacturers are subject to the requirement that their labeling match that of the RLD, Mensing, 131 S.Ct. at 2575, and may invoke the CBE process only “to match an updated brand-name label or to follow the FDA’s instructions.” Id. As a result, while a brand-name manufacturer is responsible for the accuracy and -adequacy of its label, see, e.g., 21 U.S.C. §§ 355(b)(1), (d), a generic manufacturer is responsible for ensuring that its warning label is the same as the brand-name’s. See, e.g., §§ 355(J)(2)(A)(v); § 355©(4)(G); 21 C.F.R. §§ 314.94(a)(8), 314.127(a)(7). This is commonly known as the “duty of sameness.” B. Regulatory History of Propoxyphene In 1957, the FDA approved propoxy-phene for the treatment of mild to moderate pain, under the trade name Darvon, patented and manufactured by Eli Lilly and Company (“Lilly”). In 1972, Lilly obtained FDA approval to market a second product combining propoxyphene with acetaminophen, under the trade name Darvo-cet. Following passage of the Hatch-Waxman Act in 1984, several companies obtained approval to market generic versions of both Darvon and Darvocet. Lilly sold its NDAs for Darvon and Darvocet to NeoSan in 2002, which in turn sold them to Xanodyne in 2005. Complaints about perceived risks associated with propoxyphene began in 1978 with a citizen petition by the Health Research Group, and have continued over the ensuing decades, including various clinical and non-clinical studies, post-marketing adverse event data, and the decision of the United Kingdom to withdraw propoxyphene from the market. In 2006, the Health Research Group again petitioned for withdrawal of the drug and presented to two FDA advisory committees. Those committees recommended withdrawing propoxyphene from the market, but the FDA did not follow the advisory committee’s recommendation, determining that available data did not warrant market withdrawal. Instead, the FDA ordered Xanodyne, then the NDA holder for Darvon and Dar-vocet, to change the approved propoxy-phene label to include certain warnings on the drug’s package insert, called “Black Box” warnings. The FDA also directed Xanodyne to undertake a clinical trial (the “Xanodyne study”) to assess the risks of a particular cardiac complication in 2009. In November 2010, following review of the initial data generated by the Xanodyne study linking propoxyphene use to risk of heart rhythm abnormalities, the FDA determined that the risks of propoxyphene outweighed its benefits. Concurrently, the FDA asked all manufacturers to withdraw propoxyphene from the market, and the manufacturers complied. All Plaintiffs in these cases allege that they ingested pro-poxyphene products prior to the FDA’s requested withdrawal of the drug in 2010. Plaintiffs also allege that they ingested propoxyphene products between the FDA’s direction to conduct the Xanodyne Study in 2009 and its request to withdrawal the drug in 2010. C. Supreme Court Landscape The Supreme Court has explained the interplay between state tort law and FDA regulated products a number of times in recent years. Three of these cases involved medical devices and vaccines. First, in Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001), patients injured from the implantation of orthopedic bone screws alleged that the manufacturer of the screws made fraudulent representations to the FDA. Rejecting those claims, the Court held that state law “fraud on the FDA” claims are impliedly preempted by the FDCA, because the federal government has exclusive jurisdiction to enforce the Act. Id. at 353, 121 S.Ct. 1012. In 2008, the Court considered state law claims by cardiac patients against the manufacturers of balloon catheters used in heart surgery, a type of medical device that receives premarket approval from the FDA. Reigel v. Medtronic, Inc., 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008). Affirming the dismissal of the patients’ claims, it held that state law claims challenging the safety or effectiveness of such devices are preempted by the Medical Device Amendments (“MDA”) to the FDCA. Id. at 330, 128 S.Ct. 999. In 2011, the Court considered state law claims by the parents of a child injured after receiving a dose of diphtheria-tetanus-pertusis vaccine. Bruesewitz v. Wyeth LLC, — U.S. —, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011). It held that the National Childhood Vaccine Injury Act preempts all state design defect claims against the manufacturers of vaccines. Id. at 1075. The other three cases dealt directly with labeling in the prescription drug context. In these cases, the Supreme Court’s rulings have created different liability rules for generic drug manufacturers than for brand-name drug manufacturers. In Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2008), the Court held that state failure-to-warn claims against brand manufacturers are not preempted. It reasoned that brand manu-facturera can unilaterally comply with both state and federal law obligations to add or strengthen label warnings through the CBE process when they become aware of new risks associated with their products. Id. at 581,129 S.Ct. 1187. By contrast, in PLIVA, Inc. v. Mensing, — U.S. —, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), the Court held that state failure-to-warn claims against generic manufacturers are preempted. The Court reasoned that because generic manufacturers are bound by the “duty of sameness” to copy the labels of their brand counterparts, they are unable to take unilateral action to adjust the labels even when they become aware of new information adjusting the drug’s risk calculus. Id. at 2582. Last year, in Mutual Pharmaceutical Co., Inc. v. Bartlett, — U.S. —, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013), the Supreme Court reaffirmed Mensing and found that state “design defect” claims that turn on the adequacy of a drug’s warnings are preempted by federal law as well. Bartlett, 133 S.Ct. at 2472. The Bartlett court rejected the “stop selling” theory, namely that a generic manufacturer could have avoided the conflict between state and federal law by refraining from selling the drug. Id. Thus, after Mensing and Bartlett, Plaintiffs cannot sue a generic manufacturer on a failure to warn claim or a state law design defect claim that turns on the adequacy of a drug’s warnings. Notwithstanding, in an enigmatic footnote (hereinafter “Footnote 4”), the Court stated that it did not address “state design-defect claims that parallel the federal mis-branding statute.” Id. at 2477 n. 4. Bartlett will be discussed in more detail in the next section because it is central to Plaintiffs’ appeals. These cases have left consumers of both generic and brand-name prescription drugs with few avenues for relief. In this case, Plaintiffs have raised a wrongful marketing claim based on the parallel mis-branding theory against the Generic Manufacturers, seizing upon Footnote 4 in Bartlett. To date, the only federal appellate court to consider this cause of action has held that these types of claims are impliedly preempted. Lashley v. Pfizer, Inc., 750 F.3d 470, 476-77 (5th Cir.2014). Plaintiffs also raise other sundry state law causes of action which they globally assert were adequately pled and not preempted. Plaintiffs suing the Brand Manufacturers proceed on a misrepresentation theory, namely that the Brand Manufacturers can be held liable to consumers of generic drugs based on statements made to prescribing physicians. There is a lopsided split of authority on this question. A few courts recognize such a cause of action, reasoning that physician reliance on these statements is foreseeable to brand manufacturers. See, e.g., Kellogg v. Wyeth, 762 F.Supp.2d 694, 705 (D.Vt.2010) (holding name brand manufacturers may be held liable by consumers of generic drugs for representations made to prescribing physicians under Vermont law). However, almost every court has rejected this theory, reasoning that a brand manufacturer does not owe a duty to a consumer unless the consumer actually used the brand manufacturer’s product. See Victor E. Schwartz et. al., Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drugs Has Severe Side Effects, 81 Fordham L.Rev. 1835, 1857-58 (2013) [hereinafter “Schwartz et al.”] (cataloging cases following the majority trend). D. Proceedings Below After the FDA’s 2010 decision to pull all propoxyphene products from the market, several plaintiffs initiated actions against both brand and generic manufacturers of propoxyphene. In 2011, the Judicial Panel on Multi-district Litigation consolidated all federal cases in a multi-district litigation in the United States District Court for the Eastern District of Kentucky. All defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs raised three sets of claims against the Generic Manufacturers: (1) wrongful marketing, (2) failure-to-warn claims, and (3) various remaining state law claims including breach of express and implied warranty, fraud, misrepresentation, and consumer protection. The district court dismissed each of Plaintiffs’ claims against the Generic Manufacturers. The district court held that Plaintiffs’ wrongful marketing claims were preempted by Mensing because they are based on the allegedly defective design of the drug which Generic Manufacturers could not change under the “duty of sameness.” It found that Plaintiffs’ failure-to-warn claims were not adequately pled under Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and suggested that such claims would also be preempted under Mensing. The district court found the express and implied warranty, fraud, and misrepresentation claims preempted in accordance with Mensing because they related to the sufficiency of the warnings, and the statutory negligence claim preempted under Buckman because there is no private right to enforce the FDCA. The district court also dismissed all claims against the Brand Manufacturers for failure to state a claim on which relief could be granted. Following “the overwhelming majority of courts,” it concluded that the Brand Manufacturers could not be held liable to plaintiffs who consumed other manufacturers’ drugs even for alleged misrepresentations. These sixty-eight appeals, involving the laws of twenty-two states, timely followed. This Court stayed briefing for several months after the Supreme Court granted certiorari in Bartlett. II. Standard of Review We review de novo a district court’s decision to grant a motion to dismiss for failure to state a claim under Rule 12(b)(6). CBC Co., Inc. v. Equifax, Inc., 561 F.3d 569, 571 (6th Cir.2009) (citations omitted). Judgments on the pleadings under Rule 12(c) are also reviewed de novo. Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 389 (6th Cir.2007) (citations omitted). When evaluating a motion to dismiss under Rule 12(b)(6), the Court must determine whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plausibility standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). It requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. III. ANALYSIS A. Claims Against Generic Manufacturers Plaintiffs argue that the district court erred in dismissing (1) their wrongful marketing, (2) failure-to-warn claims, and (3) various remaining state law claims against the Generic Manufacturers. They note that the district court rendered its decision pri- or to the Supreme Court’s decision in Bartlett and this Court’s decision in Fulgenzi v. PLIVA, Inc., 711 F.3d 578 (6th Cir.2013), and maintain that Bartlett mandates reinstatement of Plaintiffs’ wrongful marketing and various remaining state law claims, and that Fulgenzi requires reinstatement of their failure-to-update claims. They also contend that their failure-to-warn claims were adequately pled. For the reasons stated below, we disagree and affirm. 1. Wrongful Marketing Claims Plaintiffs’ central claim in these consolidated appeals is that the Generic Manufacturers wrongfully marketed an unreasonably dangerous product that caused them injury. Plaintiffs assert that Generic Manufacturers’ conduct in continuing to sell propoxyphene, when they knew or should have known that its risks outweighed its utility, is actionable under a variety of legal theories including, strict liability design defect, negligent design, negligent marketing, and breach of implied warranty. The district court held that the foregoing claims are premised on the allegedly defective design of propoxyphene, and would be preempted under Mensing because federal law prohibited the Generic Manufacturers from changing the design of the drug. The district court rejected Plaintiffs’ “stop selling” argument, calling it an “oversimplified solution” that would render conflict preemption largely meaningless because it would make most conflicts between state and federal law illusory. On appeal, Plaintiffs argue that their wrongful marketing claims are not preempted and should be reinstated in light of Bartlett. Specifically, they claim that the Supreme Court identified an exception to the preemption of state law design defect claims in Bartlett: “parallel misbranding claims.” Bartlett, 133 S.Ct. at 2477 n. 4, and that their wrongful marketing claim presents the “parallel mis-branding” exception. Plaintiffs’ argument requires us to answer the following three questions: (1) Is there a parallel misbranding exception to Mensing and Bartlett preemption?; (2) What does a parallel misbranding claim look like under both federal and state law?; (3) Did Plaintiffs properly plead such claims? However, before we take up that task, we must decide a preliminary procedural question of whether Plaintiffs forfeited their ability to argue the parallel mis-branding theory. a. Forfeiture The Generic Manufacturers argue that Plaintiffs have forfeited their “parallel mis-branding” theory on appeal by failing to raise it before the district court. Plaintiffs respond that the issue of the Generic Manufacturers’ federal preemption defense was litigated below, as was the stop selling argument, and the allegation that the Generic Manufacturers’ conduct violated federal misbranding requirements. “The general rule is that the circuit court will not address issues on appeal that were not raised and ruled upon below.” Meade v. Pension Appeals & Review Comm., 966 F.2d 190, 194 (6th Cir.1992) (citations omitted). However, we may address a claim that has not been ruled on by the district court in exceptional circumstances. Id. This general policy is justified by two main policy goals: “First, the rule eases appellate review by having the district court first consider the issue. Second, the rule ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Rice v. Jefferson Pilot Fin. Ins. Co., 578 F.3d 450, 454 (6th Cir.2009) (quoting Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008)). Plaintiffs did not expressly raise their “parallel misbranding” theory below. Their failure to do so is not surprising, given that the Supreme Court had not yet decided Bartlett. Nonetheless, Plaintiffs properly presented the issue of a stop selling exception to impossibility preemption and alleged that the Generic Manufacturers sold misbranded drugs. As a result, the district court considered this issue under then-existing jurisprudence and even anticipated the Supreme Court’s rejection of the “stop selling” argument. Furthermore, because briefing of these appeals was stayed for several months after the Supreme Court granted certiorari in Bartlett, Generic Manufacturers cannot say that they were surprised that this issue appeared on appeal. Accordingly, we find that Plaintiffs did not forfeit then* right to argue their “parallel misbranding” argument on appeal. Now, we turn to the first question of whether a state parallel misbranding claim escapes preemption. This requires us to examine Bartlett and Footnote 4. b. Bartlett and Footnote 4 In Bartlett, the Supreme Court overturned a judgment for the plaintiff on a state law design defect claim. It found the state law claim preempted because New Hampshire law required the generic manufacturer defendant either to alter the design of its generic drug or to strengthen the warnings on its label, both actions prohibited by federal law. Bartlett, 133 S.Ct. at 2475-76. “Because it is impossible for [the generic manufacturer] and other similarly situated manufacturers to comply with both state and federal law, New Hampshire’s warning-based design-defect cause of action is preempted with respect to FDA-approved drugs sold in interstate commerce.” Id. at 2477. In holding that the claim was not preempted, the First Circuit reasoned that the generic manufacturer could escape the impossibility of complying with both its federal and state law duties by not selling the drug. The Bartlett majority rejected the “stop-selling theory” as “incompatible with our preemption jurisprudence,” noting that “[o]ur preemption cases presume that an actor seeking to satisfy both his federal- and state-law obligations is not required to cease acting altogether in order to avoid liability.” Id. Despite these clear pronouncements, the Court included the following in a footnote: We do not address state design-defect claims that parallel the federal mis-branding statute. The misbranding statute requires a manufacturer to pull even an FDA-approved drug from the market when it is “dangerous to health” even if “used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.” 21 U.S.C. § 352(j); cf. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 447, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (state-law pesticide labeling requirement not pre-empt-ed under express pre-emption provision, provided it was “equivalent to, and fully consistent with, [federal] misbranding provisions”). The parties and the Government appear to agree that a drug is misbranded under federal law only when liability is based on new and scientifically significant information that was not before the FDA. Because the jury was not asked to find whether new evidence concerning sulin-dac that had not been made available to the FDA rendered sulindac so dangerous as to be misbranded under the federal misbranding statute, the misbrand-ing provision is not applicable here. Cf. 760 F.Supp.2d 220, 233 (D.N.H.2011) (most of respondent’s experts’ testimony was “drawn directly from the medical literature or published FDA analyses”). Id. at 2477 n. 4. As noted, Plaintiffs in this case have advanced them “parallel mis-branding” argument in light of this footnote, arguing that it outlines an exception to Mensing and Bartlett preemption and that their wrongful marketing claims fall under this theory. This Court is one of the first appellate courts faced with the “parallel misbrand-ing” theory of generic drug manufacturer liability. Academics, commentators, and even the parties to this case are not clear on what precisely Footnote 4 means and what its impact might be. Footnote 4’s genesis provides some perspective. In Bartlett, the FDA argued in an amicus brief that Mensing’s preemption analysis applied only to claims that turn on the adequacy of the drug labeling. The FDA distinguished those claims from “pure” design defect claims, which it argued are preempted unless they “parallel the FDCA’s drug ‘misbranding’ prohibition.” FDA Br., Bartlett, 2013 WL 314460, at *23 (citation omitted). The FDA continued: “[A] manufacturer has a federal duty not to market a drug if, inter alia, it is ‘dangerous to health’ when used as provided in the labeling. A state-law duty not to market the drug in the same circumstances would not conflict with federal law if it appropriately accounted for [the] FDA’s role under the FDCA.” Id. The Bartlett Court responded to this argument in Footnote 4, remarking that its holding “[does] not address state design defect claims that parallel the federal mis-branding statute.” Bartlett, 133 S.Ct. at 2477 n. 4. It is not clear whether this language implies that an exception for “parallel misbranding” claims actually exists. This possibly thorny issue need not be resolved today because, even if such a claim does exist under federal and state law, Plaintiffs’ claims fail for a simpler reason: Plaintiffs failed to plead such a claim. c. Plaintiffs’ “Parallel Misbranding” Claims Recast and Iqbal Whether or not the “parallel misbrand-ing” exception exists, our inquiry is whether Plaintiffs’ wrongful marketing claims recast in light of the “parallel misbrand-ing” exception alleged sufficient facts in order to survive a motion to dismiss. We ask whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The FDA Amicus Brief and Footnote 4 of Bartlett indicate the minimum that a plaintiff must show in order to avoid preemption on a design defect claim under the “parallel misbranding” exception: (1) allege a cause of action for misbranding under state law, (2) identify the “new and scientifically significant information that was not before the FDA,” and (3) demonstrate that the FDA would have found the drug to be misbranded in light of this new information in order to “appropriately account for the FDA’s role under the FDCA.” FDA Br., Bartlett, 2013 WL 314460 at *24; Bartlett, 133 S.Ct. at 2477 n. 4. Plaintiffs in this case do not allege sufficient facts to establish a claim under the “parallel misbranding” theory. In the first place, Plaintiffs fail to identify specific wrongful marketing claims from the states at issue that parallel, ie., have elements identical to, a federal misbranding claim under 21 U.S.C. § 352(j). But, even if we assume for purposes of argument that the states at issue have mirror image state law claims, Plaintiffs cannot state such a claim because they do not point to “new and scientifically significant information” that the Generic Manufacturers possessed that was not before the FDA. Plaintiffs list as “new information”: the 1978 Citizen Petition, various subsequent clinical and non-clinical studies, post-marketing adverse event data, and the decision of the UK and European regulatory agencies to withdraw propoxyphene, culminating in the FDA Advisory Committee’s recommendation against the continued marketing of propoxyphene products. But this is not “new information” because it was before the FDA. Critically, the FDA did not follow the Advisory Committee’s recall recommendation in July 2009, instead requiring Xanodyne to conduct a safety study and imposing new labeling requirements. Plaintiffs submit only information that was considered, reviewed, and rejected by the FDA. That the FDA approved continued marketing of propoxy-phene in July 2009, notwithstanding the information Plaintiffs submit, is fatal to their misbranding claim before that time. PosWuly 2009, Plaintiffs submit as “new information” that the initial data from the Xanodyne study confirmed the safety risks of propoxyphene, resulting in the FDA’s conclusion that the safety risks of the drug outweighed its benefit. But the Generic Manufacturers did not have access to, and thus had no ability to evaluate, that study. In fact, the FDA’s revised risk/benefit determination was contemporaneous with its request for market withdrawal after completing its own independent review of the Xanodyne study’s proprietary data in late 2010. Thus, Plaintiffs have not pled sufficient “new and scientifically significant information that was not before the FDA” in order to satisfy the requirements of a “parallel mis-branding” claim (if such exists) to survive Generic Manufacturers’ motion to dismiss. In short, Plaintiffs’ wrongful marketing claim stacks assumptions into a house of cards. It asks us to assume that parallel misbranding claims survive Mensing and Bartlett preemption, to assume what a parallel misbranding claim consists of, and to assume such claims exist in the states at issue. At a minimum, the house collapses based on their deficient pleading. The district court did not err in dismissing Plaintiffs’ wrongful marketing claims. 2. Failure-to-Warn Claims Plaintiffs admit that the central thrust of their complaints is premised on the Generic Manufacturers alleged wrongful marketing theory. But, they also argue that certain of their claims based on the Generic Manufacturers’ failure-to-wam prescribing physicians about propoxy-phene’s risks should be allowed to proceed. Particularly, Plaintiffs contend that at least some of the Generic Manufacturers can be held liable because they allegedly failed to timely implement certain changes to their product labeling after the NDA holder Xanodyne changed its labeling in 2009, and because those Manufacturers otherwise failed to send “Dear Doctor” Letters to healthcare providers regarding propoxyphene’s risks. The district court dismissed these claims as inadequately pled under Iqbal, noting that the complaints failed to: (1) identify which of the Generic Manufacturers allegedly failed to make the label changes, (2) elaborate on the allegation of untimeliness (e.g. length of delay or why it was unreasonable), or (3) explain how the alleged failure to update injured the plaintiffs. The district court also suggested that such claims would be preempted under Mensing. We affirm. a. “Failure-to-Update” Claim Plaintiffs’ principal failure-to-warn claim alleged that the Generic Manufacturers did not update their labeling to include “Black Box” warnings even though the FDA had ordered all propoxyphene manufacturers to do so. After the district court issued its decision, this Court ruled in Fulgenzi that “failure-to-update” claims against generic manufacturers are not preempted. See Fulgenzi v. PLIVA, Inc., 711 F.3d 578 (6th Cir.2013). Nonetheless, Plaintiffs’ claims falter because they did not plead them properly. The complaints plead, in relevant part that “[u]pon information and belief, the Generic [Manufacturers] did not timely implement the Black Box warning.” The complaints add that “[h]ad ... Plaintiff and her prescribing physicians ... been adequately advised of the risks associated with the use of Propoxyphene Products, Plaintiff would not have been prescribed or would not have filled prescriptions for Propoxyphene Products, would not have ingested or would have stopped ingesting them, and would not have suffered injuries resulting from those ingestions.” As an initial matter, the complaints fall short because they plead the Generic Manufacturers’ failure to implement the black box warning “upon information and belief.” To survive a motion to dismiss, a complaint must plead “facts” that create a “plausible inference” of wrongdoing. Iqbal, 556 U.S. at 682, 129 S.Ct. 1937. The mere fact that someone believes something to be true does not create a plausible inference that it is true. See, e.g., Twombly, 550 U.S. at 551, 127 S.Ct. 1955 (finding a complaint insufficient even though it said, “Plaintiffs allege upon information and belief that [defendants] have entered into a contract, combination or conspiracy to prevent competitive entry....”); 16630 Southfield Ltd. P’ship v. Flagstar Bank, 727 F.3d 502, 506 (6th Cir.2013) (finding a series of “upon information and belief’ claims insufficient, because the plaintiffs “have merely alleged their ‘belief ”). Plaintiffs respond that, under an exception to this principle, information-and-belief pleading is permissible when “the facts are peculiarly within the possession of the defendant.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010). Even assuming the existence of such an exception, it does not help Plaintiffs here. The Generic Manufacturers are not “peculiarly” in possession of the facts about whether a box of propoxyphene contains a package insert bearing the updated Black-Box warnings. Rather, the plaintiff would know best what box of propoxyphene she bought and whether that box contains a particular package insert. To the extent Plaintiffs want to find out about the Generic Manufacturers’ actions, they could for instance file a Freedom of Information Act request with the FDA to request a copy of Generic Manufacturers’ labels from the period at issue. Even putting aside the words “upon information and belief,” the complaints still fail. The complaints’ allegation of wrongdoing — “the Generic [Manufacturers] did not timely implement the Black Box warning” — does not identify which Generic Manufacturers did not timely implement the warnings. And the complaints’ allegation of causation — “Had ... Plaintiff and her prescribing physicians ... been adequately advised of the risks associated with the use of Propoxyphene Products, Plaintiff ... would not have suffered injuries” — does not identify whose failure to implement the warnings caused the injuries. Plaintiffs suggested at oral argument that these allegations refer to all of the Generic Manufacturers. In order for this theory to work, we would have to interpret the complaint as alleging: (1) the plaintiff ingested every single generic version of propoxyphene available, (2) every single generic version of propoxyphene contributed to the plaintiffs injuries, and (3) points (1) and (2) are true with respect to each of the plaintiffs in this case. Common sense suggests that Plaintiffs never meant to allege this scenario. Beyond the complaints’ failure to identify the responsible defendant, it falls short for another reason. Under Iqbal, “eonclu-sory statements” or “naked assertions devoid of further factual enhancement” do not insulate a complaint from a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations omitted). And even before Iqbal, complaints had to “give the defendant fair notice of ... the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint in this case does not give the Generic Manufacturers “fair notice ... of the grounds upon which it rests,” or offer the “factual enhancement” necessary to pass Iqbal. It asserts without elaboration Plaintiffs’ belief that the Generic Manufacturers failed to update their warnings, providing no factual basis for that belief. As the district court noted, the belief is “pure conjecture.” The complaint is thus akin to Iqbal’s conclusory allegation that Ashcroft acted out of discriminatory motive, see 556 U.S. at 680-81, 129 S.Ct. 1937 (holding that the plaintiffs complaint failed to state a claim for purposeful and unlawful discrimination), and to Twombly’s con-clusory allegation that Bell Atlantic conspired with its competitors, see 550 U.S. at 557, 127 S.Ct. 1955 (holding that plaintiffs complaint failed to state a claim under Section 1 of the Sherman Act). For these reasons we affirm the district court’s dismissal of failure-to-update claims. b. “Failure-to-Communicate” Claim In a footnote, Plaintiffs contend that the district court erred in dismissing their “failure-to-communicate” claims, arguing that the Generic Manufacturers should have sent “Dear Doctor” Letters to healthcare professionals regarding propoxyphene’s risks. “ ‘[I]t is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ” United States v. Johnson, 440 F.3d 832, 846 (6th Cir.2006) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996)); see also Carter v. Toyota Tsusho Am., Inc., 529 Fed.Appx. 601, 612 n. 2 (6th Cir.2013) (“Generally, an argument raised in a footnote without further development is deemed waived.”). Because Plaintiffs fail to develop this argument further than this footnoted reference, it is forfeited. In any event, Plaintiffs’ argument fails on the merits. In Mensing, the Supreme Court held that generic manufacturers cannot send “Dear Doctor” Letters unless their brand counterparts do so first because “if generic drug manufacturers, but not the brand-name manufacturer, sent such letters, that would inaccurately imply a therapeutic difference between the brand and generic drugs and thus could be impermissibly misleading.” Mensing, 131 S.Ct. at 2576 (citation and internal quotation marks omitted). In other words, generic manufacturers cannot violate the duty of sameness. The only two federal appellate courts to consider this issue have rejected “failure-to-communicate” claims similar to those Plaintiffs advance. Morris v. PLIVA, 713 F.3d 774, 777 (5th Cir.2013) (“Under federal law, the inquiry is whether the brand-name manufacturers sent out a warning, not whether the proposed warning to be disseminated contains substantially similar information as the label. Because no brand-name manufacturer sent a warning ... the generic manufacturers were not at liberty to do so.”); Guarino v. Wyeth, LLC, 719 F.3d 1245, 1249 (11th Cir.2013) (“Because the duty of sameness prohibits the generic manufacturers from taking such actions unilaterally, they are dependent on brand-names taking the lead. That fact is determinative here. We ... reject the failure-to-communicate theory of liability, as it is preempted by federal law.”) (citing Morris, 713 F.3d at 777). We agree with our sister circuits’ analysis, and find Plaintiffs’ “failure-to-communicate” claim preempted. c. “Failure-to-Warn” Claims against Mylan .Plaintiffs next argue that the district court erred in dismissing their failure-to-warn claims against Generic Manufacturer Mylan because the FDA designated My-lan’s ANDA product as the reference listed drug holder for certain strengths of propoxyphene after the Brand Manufacturer for those strengths left the market. Plaintiffs assert that as a result of the RLD designation, Mylan is subject to failure-to-warn liability under the standard for Brand Manufacturers in Levine, rather than the standard for Generic Manufacturers under Mensing. The FDA recently addressed this issue, confirming that RLD-designation does not alter the obligations of generic manufacturers. Although it declared that RLD designees generally must submit labeling changes when new safety information warrants, it made clear that this rule does not apply to RLD designees whose drug was approved pursuant to an ANDA: Under existing FDA regulations, ANDA holders cannot make labeling changes through the formal supplement process under 21 CFR 314.70 in all circumstances in which NDA holders can because an ANDA’s labeling must be the same as the NDA RLD’s labeling. Accordingly the changes-being-effected supplement process under 21 CFR 314.70(c) is not expressly available to ANDA holders except to match the RLD labeling or to respond to FDA’s specific request to submit a labeling change under this provision. FDA, Center for Drug Evaluation and Research, Guidance for Industry: Safety Labeling Changes — Implementation of Section 505(o) (I) of the FD & C Act, at 7 n. 10 (July 2013), available at http://l-usa.gov/lc FObdk. This makes sense because, as the Supreme Court recognized in Mensing, the FDCA and implementing regulations recognize only two categories of drug applications: NDAs, which are fully subject to the CBE process set forth in 21 C.F.R. § 314.70, and ANDAs, which are not subject to the CBE process given the duty of sameness. Mensing, 131 S.Ct. at 2574 (citing 21 U.S.C. § 355(b)(1), (d) (responsibilities of NDA holders) & 21 U.S.C. § 355(j)(2)(A)(v); § 366(j)(4)(G); 21 C.F.R. §§ 314.94(a)(8), 314.127(a)(7) (responsibilities of ANDA holders)). Indeed, “[r]eference listed drug” merely “means the listed drug identified by FDA as the drug product upon which an applicant relies in seeking approval of its abbreviated application.” 21 C.F.R. § 314.3; see also 21 C.F.R. § 314.94(a)(3) (“The listed drug will be the drug product selected by the agency as the reference standard for conducting bioequivalence testing”) (emphasis added). Thus, merely becoming an RLD holder does not empower a generic manufacturer to independently change the drug’s warning label. Every federal court to consider this issue has held that FDA’s designation of a generic manufacturer’s drug as the RLD does not subject an ANDA product to NDA, or brand-name, status or requirements. See, e.g., Morris, 713 F.3d at 777-78 (“[W]e agree with the district court’s analysis, in rejecting this claim, that it assumes, without authority, that the FDA considered [the ANDA holder designated by FDA as the RLD] to be a brand manufacturer with the requisite duty to unilaterally change its product’s labeling simply because the FDA designated [that ANDA holder’s generic drug] as the RLD.”) (internal quotation marks omitted); Moore v. Mylan Inc., 840 F.Supp.2d 1337, 1348 (N.D.Ga.2012) (“Plaintiff has not shown that Mylan’s manufacture of one RLD converted Mylan into [a] brand name drug manufacturer with the right to use the CBE process to change the label of any of its drugs or how listing [the drug] as an RLD converted [it] into a brand name drug”); Cooper v. Wyeth, Inc., No. 09-cv-929-JJB, 2012 WL 733846, *9 (M.D.La. Mar. 6, 2012) (“Plaintiffs point to no authority authorizing the FDA to elevate the duties of generic ANDA drug to the level of a brand name NDA drug simply because the FDA chooses that generic as the comparison model for bioequivalency measurements arising from the processing of subsequent AND As.”). After examining the relevant regulations, we find that the status of an ANDA holder’s product as the RLD for a given prescription drug product does not alter the ANDA holder’s obligations. Therefore, we affirm the district court’s rejection of the Plaintiffs RLD theory against Mylan. 3. Remaining State Law Claims Plaintiffs argue that the district court erred in dismissing their remaining state law claims including breach of express and implied warranty, misrepresentation, fraud, consumer protection, and statutory negligence. A prior panel of this Court rejected similar claims, including breach of warranty, fraud, and misrepresentation under Tennessee law in Strayhorn v. Wyeth Pharm., Inc., 737 F.3d 378, 391-96 (6th Cir.2013), finding them preempted under Mensing and Bartlett. We reach the same result here. a. Breach of Express and Implied .Warranty Claims Plaintiffs argue that the district court improperly dismissed their breach of warranty claims. They allege that the Generic Manufacturers expressly warranted that propoxyphene “had been adequately tested” and “was safe and effective for pain management” on the products’ labeling. Plaintiffs also claim that in selling propoxyphene, Generic Manufacturers impliedly warranted that their product was safe and effective. The district court held that the express warranty claims are attacks on Generic Manufacturers’ labeling, and the implied warranty claims were attacks on Generic Manufacturers’ product design, both preempted under Mensing. The alleged express warranty includes provisions on Generic Manufacturers’ label. As discussed above, the duty of sameness required Generic Manufacturers to conform their labeling to that of the brand-name drugs. Mensing, 131 S.Ct. at 2577-78. Therefore, federal law prohibited Generic Manufacturers from modifying any “express warranty” contained in the labeling. In Smith, this Court rejected a similar argument regarding warranty claims, finding them preempted. Smith v. Wyeth, 657 F.3d 420, 423 (6th Cir.2011) (finding all claims preempted, including plaintiffs’ warranty claims in their supplemental brief). Plaintiffs cite three cases outside the prescription drug context in support of their argument, Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (holding that the Federal Cigarette Labeling and Advertising Act did not preempt state law damages actions), Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (holding that the Federal Insecticide, Fungicide, and Rodenticide Act did not preempt plaintiffs’ state law claims), and Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (holding that the Federal Cigarette Labeling and Advertising Act did not preempt plaintiffs’ state law claims), where the Supreme Court found express warranty claims not preempted. These cases are inapplicable; not only do they not consider the FDCA, but they involve express, rather than conflict, preemption. The district court did not err in dismissing Plaintiffs’ express warranty claims. The alleged implied warranty stems from Generic Manufacturers’ continuing to market their propoxyphene products after 2009. These claims are based on the allegedly defective design of the drug: Plaintiffs allege that the Generic Manufacturers knowingly or negligently marketed and sold defectively designed propoxyphene products without adequate warnings and thus impliedly warranted that the products were safe and effective. As discussed above, Generic Manufacturers were bound by their “duty of sameness” and powerless to change the design of propoxyphene. Mensing, 131 S.Ct. at 2575. Additionally, the district court appropriately rejected Plaintiffs’ “stop selling” argument, anticipating Bartlett. Bartlett, 133 S.Ct. 2466. Therefore, the district court correctly concluded that Plaintiffs’ implied warranty claims are preempted as well. b. Fraud, Misrepresentation, and Consumer Protection Claims Plaintiffs contend that the district court erred in dismissing their fraud, misrepresentation, and consumer protection claims. They argue that while federal law may have prohibited the Generic Manufacturers from adding warnings to their drug labels without FDA approval, it does not compel them to make misrepresentations about their products. These claims all challenge label content, and Plaintiffs do not identify any representations made other than those contained in the FDA-approved labeling. As above, the Generic Manufacturers could not have corrected any alleged misrepresentation without violating federal law because they were required to conform their labeling to that of the brand-name drugs. These claims are preempted under Mensing, and the district court did not err in dismissing them. Mensing, 131 S.Ct. at 2577-78. c. Statutory Negligence Claims Plaintiffs argue that the district court wrongly dismissed their claims for statutory negligence. The district court found that these claims are premised on Generic Manufacturers’ alleged violation of federal law, and therefore preempted by Buckman. Plaintiffs maintain that their statutory negligence claims do not seek to enforce federal statutory and regulatory requirements, but assert only state law causes of action. Plaintiffs’ statutory negligence complaints list a. number of federal regulations, mostly related to labeling or misbranding, that the Generic Manufacturers allegedly violated. As the district court correctly concluded, these claims are premised on the Generic Manufacturers’ alleged violation of federal standards for the sale of prescriptions set forth in the FDCA. In Buckman, the Supreme Court recognized that because the FDA has the exclusive power to enforce the FDCA there is no private right to enforce the statute. Buckman, 531 U.S. at 350-53, 121 S.Ct. 1012. Since the conduct that Plaintiffs allege gives rise to their statutory negligence claims is the Generic Manufacturers’ violation of the FDCA, the district court properly dismissed those claims, and we affirm. d. Derivative Claims Plaintiffs concede that their derivative claims for wrongful death, survivorship, unjust enrichment, loss of consortium, and punitive damages stand or fall with the underlying claims on which they rest. Because the district court correctly dismissed the underlying claims, it did not err in dismissing their derivative claims and we affirm. B. Claims Against Brand Manufacturers 1. Misrepresentation Claims The district court dismissed Plaintiffs’ products liability claims against the Brand Manufacturers, reasoning that, in the twenty-two states implicated, it is settled law that the plaintiff must assert that the defendant’s product caused the plaintiffs injury. Because Plaintiffs did not allege that they ingested drugs marketed, sold, or manufactured by the Brand Manufacturers, their claims could not succeed. Plaintiffs do not appeal that holding. Plaintiffs appeal only the dismissal of their misrepresentation claims against Brand Manufacturers, which they characterize as a separate theory of recovery in which identification of the defendant’s specific product is not required. Plaintiffs’ misrepresentation arguments against the Brand Manufacturers proceed as follows: physicians reasonably and fore-seeably relied on representations by Brand Manufacturers in writing prescriptions for generic propoxyphene because they understand that generic drugs are required by federal law to be bioequivalent to, and labeled the same as, RLDs. State laws permit, and sometimes require, pharmacists to fill prescriptions with generic medications. Thus, they argue, it was reasonably foreseeable to Brand Manufacturers that physicians would rely on their representations in prescribing generic propoxy-phene. The district court dismissed Plaintiffs’ misrepresentations for two reasons. First, it held that under the laws of the twenty-two states at issue, because these misrepresentation claims stem from personal injuries allegedly caused by a product (a drug), they are in fact product liability claims. Construed as such, Plaintiffs’ “misrepresentation” claims would fail for the same reason their “product liability” claims did: Plaintiffs did not allege that they were injured by the Brand Manufacturers’ product. Second, the district court found that even if the misrepresentation claims could be seen as distinct and separate from product liability claims, they would fail because Plaintiffs could not establish that the Brand Manufacturers owed them a legal duty. We must analyze whether Plaintiffs’ misrepresentation claims would stand under the laws of each implicated state, as required per Erie. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (holding that a federal court sitting in diversity is bound to follow the law of the forum state). When sitting in diversity, federal courts are required to apply the substantive law of the states in which they reside. Erie R.R., 304 U.S. at 78, 58 S.Ct. 817. On questions of state law, this Court is bound by the rulings of the state supreme court. Bradley v. Gen. Motors Corp., 512 F.2d 602, 604-05 (6th Cir.1975). “When there is no state law construing a state statute, a federal court must predict how the state’s highest court would interpret the statute.” United States v. Simpson, 520 F.3d 531, 535 (6th Cir.2008). If the state’s highest court has not yet addressed the issue presented, we must predict how the court would rule by looking to all available data, including decisions of the states’ appellate courts. Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir.2001) (citations omitted). While not binding, this Court may turn to decisions of its sister circuits and lower federal courts interpreting state law for guidance. See Andrew v. Bendix Corp., 452 F.2d 961, 963 (6th Cir.1971) (looking to decisions of sister circuits and federal district courts for guidance interpreting state law). Furthermore, federal courts must be cautious when making pronouncements about state law and “ ‘[w]hen given a choice between an interpretation of [state] law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.’ ” Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir.2004) (citing Todd v. Societe Bic, S.A., 21 F.3d 1402, 1412 (7th Cir.1994) (en banc)) (other citations omitted). There are two analytical avenues by which a state’s highest court would determine whether Plaintiffs have stated viable misrepresentation claims against Brand Manufacturers under applicable state law: (1) Plaintiffs’ claims may be construed as strict “product liability” claims under the state’s tort regime regardless of whether they are articulated as sounding in negligence and fraud, or (2) even if they are seen as distinct and separate from product liability claims under a state’s law, whether a duty exists between Brand Manufacturers and users of generic drugs that can give rise to liability. Thus, first, if a state’s highest court would construe Plaintiffs’ misrepresentation claims as “product liability” claims under the tort law of that state, they were properly dismissed. In the twenty-two states implicated by the Brand Manufacturers’ motion to dismiss, it is well-settled law that the “threshold requirement of any products-liability claim is that the plaintiff assert that the defendant’s product caused the plaintiffs injury.” This is known as the “product identification requirement.” Because Plaintiffs did not ingest the Brand Manufacturers’ drugs, their “misrepresentation” claims would fail if a state’s highest court would construe them as product liability claims under applicable state law. Second, even if a state’s highest court would not construe Plaintiffs’ claims as “product liability” claims, the claims were still properly dismissed if we predict that such courts would hold that the Brand Manufacturers do not owe users of generic drugs a duty that can give rise to liability. Before turning to our state-by-state Erie analysis, we note that an overwhelming majority of courts, in at least fifty-five decisions from twenty-two states, have rejected “the contention that a name brand manufacturer’s statements regarding its drug can serve as the basis for liability for injuries caused by another manufacturer’s drug.” Foster v. Am. Home Prods. Corp., 29 F.3d 165, 170 (4th Cir.1994). These courts have arrived at this conclusion through either or both of the analytical avenues specified above, but often do not neatly indicate which route they are selecting. Some of these courts maintain that regardless of the label a generic consumer plaintiff might use (e.g. misrepresentation), she has effectively brought a product liability action and cannot circumvent the product identification requirement of applicable state product liability law. See, e.g., Couick v. Wyeth, Inc., 691 F.Supp.2d 643 (W.D.N.C.2010) (holding that although plaintiffs’ claims were “masked in various legal theories, they [were] premised on a single claim of product liability” and therefore fell under North Carolina’s product liability statute). Other courts note that no matter whether they find that the misrepresentation cause of action is distinct from a product liability claim, a brand name defendant owes no duty of care to consumers of the generic bioequivalent of its product. Foster, 29 F.3d at 171. A minority of courts have held the opposite, first finding generic consumers’ common law claims distinct from product liability claims and then concluding that brand manufacturers owe a duty to avoid causing injury to generic consumers that can give rise to liability. See, e.g., Conte v. Wyeth, Inc., 168 Cal.App.4th 89, 85 Cal.Rptr.3d 299, 309 (2008); Kellogg, 762 F.Supp.2d at 709; Wyeth, Inc. v. Weeks, No. 1101397, — So.3d —, —, 2013 WL 135753, at *19 (Ala. Jan. 11, 2013); Dolin v. SmithKline Beecham Corp., 12-C-6403, 2014 WL 804458, at *9 (N.D.Ill. Feb. 28, 2014). Courts in the minority recognizing this duty find generic consumers’ injurious reliance foreseeable; brand manufacturers know or should know that a significant number of patients whose doctors rely on their product information for brand name drugs are likely to have generic drugs dispensed to them. Applying Kentucky law in Smith, 657 F.3d at 424 and Tennessee law in Barnes v. Kerr Corp., 418 F.3d 583, 588-89 (6th Cir.2005), this Court concluded that generic consumers in those states could not maintain an action against brand manufacturers, in line with the majority of courts nationwide. Every circuit court of appeals that has addressed the issue is in accord. See Schrock v. Wyeth, Inc., 727 F.3d 1273, 1282 (10th Cir.2013) (holding that brand-name drug manufacturers owe no duty to consumers of generic drugs under Oklahoma law); Guarino v. Wyeth, LLC, 719 F.3d 1245, 1251 (11th Cir.2013) (holding that a brand manufacturer of prescription drugs cannot be held liable for injuries suffered by consumers who ingested only the generic form of a drug under Florida law); Bell v. Pfizer, Inc., 716 F.3d 1087, 1092-94 (8th Cir.2013) (holding that brand name manufacturers cannot be held liable for injuries caused by products they did not manufacture under Arkansas law); Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 183-84 (5th Cir.2012) cert. denied,U.S. -, 134 S.Ct. 57, 187 L.Ed.2d 25 (2013) (finding plaintiff could not pursue any claim, regardless of theory, under Louisiana law against brand drug manufacturer because they did not manufacture the medication plaintiff actually consumed); Foster, 29 F.3d at 168 (4th Cir.1994) (applying Maryland law and holding name-brand drug manufacturer not liable under negligent misrepresentation theory). After conducting a state-by-state Erie analysis, we conclude that the highest courts in each of the 22 implicated states would not recognize Plaintiffs’ misrepresentation claims under their respective state laws. That analysis is provided in Appendix A to this opinion. Thus, we affirm the district court’s dismissal of Plaintiffs’ misrepresentation claims against the Brand Manufacturers. 2. Plaintiffs who Ingested Mylan Products Allegedly Manufactured by Lilly Ten plaintiffs assert that they ingested products manufactured by a specific generic manufacturer, Mylan Pharmaceuticals, Inc. (“Mylan”). They claim that it is plausible that Lilly made those products pursuant to a 1994 supply agreement Lilly had with