selling infant & child pain reliever in different boxes (& prices) wasn't plausibly misleading

Eldmann v. Walgreen Co. 2021 WL 764121, No. 5:20-cv-04805-EJD (N.D. Cal. Feb. 26, 2021)

Eldmann argued that Walgreens falsely marketed its Infants’ Pain & Fever product in contrast to its Children’s Pain & Fever Acetaminophen product. Infant products used to contain 80 mg of acetamiophen per mL, whereas children’s product contained 160 mg per 5 mL. An industry-wide effort to prevent accidental infant overdoses changed the concentration to be 160 mg per 5 mL uniformly. Thus, both products now have the same concentration, display age ranges of 2-3 years and 2-11 years respectively, and are otherwise distinguished by dosing mechanism: syringe for infants, cup for children’s. Consumers were allegedly injured because “the Infants’ Product can cost almost four times as much per ounce than the Children’s Product, despite being identical medicines.” Eidmann brought the usual California claims.

The court found no plausible deception. The front label (and the highlighted “drug facts” information on the back) showed that they had the same composition. They had different dosage devices, but that didn’t plausibly suggest different formulations, given the front-label representation. The infant product instructs consumers to “use only with enclosed syringe,” and the side said that the “enclosed syringe [is] specifically designed for use with this product.” “Thus, the infant-specific branding is less suggestive of a formulation specially designed for infants, as Eidmann alleges, rather it more reasonably pertains to the infant-specific dosing mechanism included to administer the product.”

Also, the overlapping age ranges would allow a consumer to “readily compare the products and find not only that they contain the same acetaminophen concentration, but also that they can be used by children of identical ages.” Plus, the images were cartoon-like illustrations, not photos. “It is hard to imagine that a reasonable consumer would believe the medicine is specially formulated for infants based on an illustration, especially one so simplistically one-dimensional as the one on the Infants’ Product.”

While some cases have come out this way, other courts have found deception plausible in similar circumstances, but the court relied on the fronts of these particular products.

There was, likewise, no fraudulent omission claim on these facts.