if it's on the label, courts can presume consumers saw it

Bailey v. Rite Aid Corp., 2021 WL 4469638, No. 4:18-cv-06926 YGR (N.D. Cal. May 26, 2021)

Rite Aid moved to reconsider a previous ruling denying a motion to dismiss Bailey’s claim against Rite Aid’s marketing of its over-the-counter acetaminophen gelcaps as “rapid release.” The court declined. “According to Rite Aid, Bailey failed to show that the members of the proposed class were exposed to Rite Aid’s allegedly deceptive conduct.” That exposure was dependent on class members seeing both gelcaps and tablet/caplet forms and comparing them, Rite Aid argued, but Bailey didn’t show that consumers did compare them. Rite Aid also argued that it survey showed that “there is a high likelihood that significant numbers of consumers do not make the product comparison on which Plaintiff’s deception theory is predicated and upon which the Court granted certification.”

But there was no meaningful dispute that the members of the proposed class were exposed to the labels and prices of Rite Aid gelcaps and tablets “because such prices and labels were placed within eye-view of consumers as a result of Rite Aid’s product-placement policies.” Bailey wasn’t required to show that the proposed class members who were exposed to these prices and labels were likely to have compared them. “Courts find that exposure exists where a court reasonably can infer that the class members would be able to see the misrepresentation at issue.” Being on the label routinely satisfies that standard.

The court also found Bailey’s advertising expert’s evidence to be persuasive; that went to whether consumers were deceived into thinking that Rite Aid gelcaps are faster acting than Rite Aid tablets after comparing them and relied on that. And Rite Aid’s survey wasn’t enough to avert any factual issues given its own flaws, which included limited images.