"maximum strength" OTC claim plausibly misleading where prescription strength was stronger

Acosta-Aguayo v. Walgreen Co., No. 22-cv-00177, 2023 WL 2333300 (N.D. Ill. Mar. 2, 2023)

Plaintiffs alleged that three of Walgreens’ pain-relieving products mislead consumers because the products’ front labels state that they are “Maximum Strength” lidocaine products, but stronger prescription products are available. This was plausible on a motion to dismiss.

Plaintiffs alleged that consumers consider dose strength an important factor when purchasing pain-relieving products. But competitors allegedly offer similar prescription patches that contain 5% lidocaine and an over-the-counter cream product that contains 5% lidocaine.

The court also found that the plaintiffs could represent purchasers of a different patch product, which was substantially similar “in the colors of the packages and text, the images displayed, the text style and text descriptions in the bullet points, and the shape and size of the packaging.” But the challenged cream wasn’t substantially similar.

Walgreens argued that “[n]o reasonable consumer purchasing one of the Products would read ‘Maximum Strength’ on the labels to literally mean that the Products contain the maximum amount of lidocaine that a person could ever obtain anywhere.” But, “[w]hile a reasonable consumer likely understands the difference between over the counter and prescription drugs, a reasonable consumer would not necessarily understand the ‘Maximum Strength’ on the Product’s label to exclude comparable prescription medication…. Reading the phrase ‘Maximum Strength’ to mean the maximum strength of lidocaine available generally is not an “unreasonable or fanciful interpretation[ ]’ of the Product’s label.”

Walgreens argued that the claim was implausible because 4% is the maximum concentration permitted by the FDA in non-prescription external analgesics. But it didn’t argue that a reasonable consumer would know this, and the label could still be misleading. A similar case,  Scilex Pharms. Inc. v. Sanofi-Aventis U.S. LLC, 552 F. Supp. 3d 901 (N.D. Cal. 2021), concluded that the plaintiff stated a claim under the UCL or FAL by alleging that defendants’ advertising and marketing is likely to deceive a reasonable consumer to believe, among other things, that Defendants’ patches offer ‘the maximum amount of lidocaine available in patch form.’ ” Factual development was required.

Claims for beach of express and implied warranties ere dismissed for failure to give pre-suit notice, as was common-law fraud for conclusory allegations about knowledge and intent; defendants didn’t have a fiduciary duty to disclose. Unjust enrichment did survive at this stage, as did claims on behalf of a multi-state class.

Injunctive relief claims were dismissed for want of standing, which also got rid of the state UDTPA claims, and because plaintiffs failed to allege that they lacked an adequate remedy at law, the court dismissed their claims for restitution and disgorgement.