"Maximum Strength" is plausibly misleading when cheaper Regular Strength has more active ingredient by volume

Al Haj v. Pfizer Inc., 2019 WL 3202807, No. 17 C 6730 (N.D. Ill. Jul. 16, 2019)

Al Haj alleged that Pfizer deceived consumers by charging more for “Maximum Strength” Robitussin cough syrup than for “Regular Strength” Robitussin even though the former had a lower concentration of active ingredients than the latter. The court denied Pfizer’s summary judgment motion and Al Haj’s motion for class certification, without prejudice.

Al Haj switched from Regular Strength to Maximum Strength; when she bought, Maximum Strength Robitussin cost some two dollars more than Regular Strength Robitussin. Both products contained  two active ingredients: dextromethorphan hydrobromide (“DXM Hbr”), a cough suppressant, and guaifenesin, an expectorant. Before June 2016, the recommended dosage of Maximum Strength Robitussin was 10 ml, and each 10 ml dose of Maximum Strength Robitussin contained the same amount of DXM Hbr (20 mg) but twice as much guaifenesin (400 mg) as the recommended 10 ml dose of Regular Strength Robitussin. Pfizer then reformulated Maximum Strength Robitussin to change the recommended dose from 10 ml to 20 ml while keeping Regular Strength Robitussin’s recommended dose at 10 ml. Pfizer placed a “See New Dosing” alert at the upper right corner of the product’s box.

The reformulation halved the product’s concentration of active ingredients. Until Pfizer in mid-2018 similarly doubled Regular Strength Robitussin’s recommended dosage size from 10 ml to 20 ml and thereby halved its concentration of active ingredients, Maximum Strength Robitussin had the same concentration of guaifenesin but only half the concentration of DXM Hbr as Regular Strength Robitussin. Because both products were sold in bottles of the same size, a bottle of Regular Strength Robitussin had twice as many doses as a bottle of Maximum Strength Robitussin, which cost more. Pfizer internally touted the reduced number of doses per bottle of Maximum Strength Robitussin as a positive result of the reformulation.

Al Haj switched after reading the “Maximum Strength” label and assuming that Maximum Strength Robitussin would be more effective than Regular Strength Robitussin. Pfizer’s own market research concluded that “quite a few” consumers would be willing to spend more on maximum strength medication because they perceive it to “work better and provide more value” than regular strength medication. Al Haj did not compare in detail the Regular Strength and Maximum Strength packaging when she decided to purchase Maximum Strength Robitussin. Even after learning that the recommended dose was 20 ml, she purchased Maximum Strength Robitussin at least two more times despite knowing that its 20 ml dose was twice the recommended dose of Regular Strength Robitussin.

The Illinois Consumer Fraud and Deceptive Business Practices Act bans “deceptive business practices” as well as “business practices that, while not deceptive, are unfair.”  Pfizer argued that the packaging Al Haj saw included a “See New Dosing” alert on the front of the box and an explanation of “Maximum Strength” on the back. Pfizer argued that this cured any possible ambiguity about the meaning of the ‘maximum strength’ claim” as a possible comparison to regular strength. But, even if the alert would have led a reasonable consumer to read the dosage information, the consumer wouldn’t have known that Maximum Strength had a lower concentration of active ingredients than Regular Strength unless she calculated and compared the products’ concentrations. “[I]t is not reasonable to expect a consumer to cross-check a product’s ingredient list against another product’s list and then perform arithmetic to make sure she is comparing equivalent dosage volumes, all to ensure that the product she intends to purchase has the qualities it purports to have.” Even though the label stated on the back “Maximum strength claim based on maximum levels of active ingredients per dose,” “using fine-print text to obliquely walk back a prominent claim on the front of the box—particularly absent other product features that contextualize that claim—generally does not preclude a jury finding that the frontside claim was deceptive.”

The court pointed out that “by placing a prominent ‘Maximum Strength’ designation on what otherwise was materially the same frontside packaging as Regular Strength Robitussin, Pfizer invited consumers viewing both products to assume that a more expensive bottle of Maximum Strength Robitussin had a greater concentration of active ingredients than the bottle of Regular Strength Robitussin.” Moreover, “a reasonable consumer would conclude that she was being charged more for a bottle of Maximum Strength Robitussin than she would have paid for a bottle of Regular Strength Robitussin because the former had more potency per volume than the latter.” Pfizer couldn’t take that implication back with disclaimers that were oblique at best.

Pfizer invoked the (bad) decision holding that 100% Grated Parmesan Cheese doesn’t mean 100% grated parmesan cheese where the label expressly disclosed the presence of cellulose. But “unlike the cheese product in Parmesan, which remained ‘shelf-stable at room temperature,’ there is no commonsense, ‘observable’ impediment to a consumer concluding that a bottle of Maximum Strength Robitussin has a higher concentration of active ingredients than Regular Strength Robitussin.” A jury could conclude that the relative concentrations of active ingredients in Regular Strength and Maximum Strength Robitussin were “non-obvious product qualities that consumers may reasonably rely on packages to clearly disclose.” Moreover, while “a quick skim of the ingredient label” on the backside of the packaging of the cheese product showed that the product contained “something other than cheese” and thereby cured any ambiguity, nothing on the backside of the Maximum Strength package cured the “Maximum Strength” claim’s ambiguity; cross-checking with another package and doing math would have been required.

Did Al Haj suffer actual pecuniary damage? Al Haj ultimately switched to a more expensive Delsym product, not the less expensive Regular Strength Robitussin. But a reasonable jury still could find that she suffered “actual pecuniary loss” when she switched from Regular Strength to Maximum Strength Robitussin and thereby paid more for a product that had a lower concentration of active ingredients than its packaging implied. Her injury was established at the time of purchase, regardless of whether [s]he later was dissatisfied with” Robitussin “and regardless of whether [s]he would have purchased a substitute product.”  Cases finding no actual damage involve prices lower than the alternatives, but Al Haj had a cheaper alternative: Regular Strength. Pfizer argued that the products weren’t comparable because they had different amounts per dose of the same active ingredients, but a less expensive alternative need only be “similar,” not identical, to serve as a comparator for purposes of establishing actual damage under the ICFA. 

Proximate case: Pfizer argued that Al Haj admitted that she did not purchase Maximum Strength Robitussin under the “belief that the medication had a higher concentration of active ingredients per volume” than Regular Strength Robitussin. But “the ICFA does not require a plaintiff to show actual reliance or diligence in ascertaining the accuracy of misstatements.”  Deception was enough, and Al Haj testified that she thought Maximum Strength would be more effective and thus a better value than Regular Strength.  Even if she knew the recommended doses (20 ml vs. 10ml) after her first Maximum Strength purchase, that wasn’t enough to cure the alleged deception, as she still would need to “perform arithmetic” and a “cross-check” based on each “product’s ingredient list” to learn the concentration of active ingredients in each bottle.