Wednesday, December 09, 2020

it's not misleading to advertise the same thing with two names and two prices

 Lokey v. CVS Pharmacy, Inc., 2020 WL 6822890, No. 20-cv-04782-LB (N.D. Cal. Nov. 20, 2020)

Lokey alleged that CVS violated the FAL/UCL/CLRA by marketing its CVS-branded infant pain-and-fever medicine at a higher price (up to two and a half times as much) than its CVS-branded child pain-and fever medicine, even though the ingredients in the two products are the same. The court held that reasonable consumers would not be confused and dismissed the claim.

The front labels for the two products describe their composition identically, including their concentrations of 160 mg/5 mL (a concentration required by the FDA for infants and children), but brand them for infants (with a syringe for administering the dosage and with no other representation about age) and children (with a dosage cup and a representation that the product is for children from ages 2 to 11 years). The infant version has instructions for children up to 35 lbs/3 years; the child version goes up to 95 pounds and 11 years; both versions say that for under 24 lbs/2 years one sohuld “ask a doctor.”

Although it seems to me that Lokey’s argument that “[n]o reasonable consumer would pay two and a half times as much per ounce and sometimes more to purchase Infants’ acetaminophen over Children’s acetaminophen unless he or she had been deceived into thinking that infants cannot safely take the Children’s product” is plausible, the court disagreed.

Lokey was fundamentally challenging pricing decisions, which aren’t justiciable without some other deception (which seems like it would be a surprise to the standard economic take that prices are themselves informational signals). Boris v. Wal-Mart Stores, 35 F. Supp. 3d 1163 (C.D. Cal. 2014) (rejecting essentially the same claim for headache remedies), aff’d, 649 F. App’x 424 (9th Cir. 2016).

Relatedly, “the labels here would not mislead a reasonable consumer.” The front label disclosed the compositional identity, and they have different delivery mechanisms (syringe and cup). The pictures of infants and older children, respectively, and the dosing instructions “do not plausibly suggest different formulations, given the front-label representation about the composition of the medicines.” “What ultimately dooms Plaintiff’s claims is that Defendant tells the consumer exactly what she is getting: the package actually discloses the fact that Plaintiff complains it omits[.]”

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