Second, the defendants contended that plaintiff was really trying to bring an action under the FDCA, which has no private right of action, rendering plaintiff without standing and the court without jurisdiction. The court brushed this aside with the conclusion that “Nowhere does the Fourth Amended Complaint assert a violation of the FDCA.” Id. We found this surprising because the denial of part of the first motion to dismiss was based on plaintiff’s allegation that defendants “failed to adhere to FDA label requirements” and put out generic drugs with labels that were “inconsistent with the FDA-approved, name-brand drug labels.” 2013 WL 878586, **4-5. That sounds like asserting a violation of the FDCA to us. So does the basis for the court’s denial of the third argument (in the second motion to dismiss), which can be found six sentences later: “Plaintiff[’s] theory of liability is that Generic Defendants failed to provide FDA-approved warnings and information.” 2013 WL 3293956, *4. Such an allegation may be a basis for concluding that the statutory presumption is not triggered by the pleadings, but it certainly is an allegation that defendants should be liable because they violated the FDCA, specifically 21 U.S.C. 352.