"for children" plausibly misleading where adult version is the same

 Goodwin v. Walgreens, Co., No. CV 23-147-DMG (PDx), 2023 WL 4037175 (C.D. Cal. Jun. 14, 2023)

This case is part of a wave of “false differentiation” cases that has been achieving at least some success in avoiding dismissal. Goodwin alleged the usual California statutory and common law claims against Walgreens for its sale of “Cough DM” products that differentiate between adults and children on the label. The children’s product is allegedly more expensive but otherwise no different; the court agreed that reasonable consumers could be deceived into thinking that the product was specially formulated for children. (Notably, Walgreens is merely following the lead of Delsym, the comparator used on the label: “Compare to Children’s Delsym® active ingredient”/“Compare to Delsym® active ingredient.”). The children’s product costs a dollar more per ounce and has an image of a cartoon child on the label.

Walgreens argued that she didn’t identify any falsity. But “district courts have often concluded that the same types of representations at issue in this case—specifically, the labeling of a product as ‘for children’—could be misleading to reasonable consumers.” The repeated use of the word “children” and the cartoon child, without express disclosure that the medicine was the same concentration as the adult version, “could mislead a reasonable consumer into believing that the children’s product is specially formulated for children.”

Walgreens argued that the label also said it was suitable for adults by using the phrases “for children & adults” and “ages 4 and older,” but that didn’t directly contradict the alleged reasonable belief that the product was formulated for children, “a distinct point from whether it could be safely taken by adults. Even if Goodwin had consulted the dosage instructions on the back label to seek context for the representations on the front label, she would not be able to discern that the product was not formulated for children.” This also meant that claims based on partial omissions also survived.

And there was standing to seek injunctive relief. “Goodwin could certainly compare the active and inactive ingredients on the labels for both products in the future, but there is no way she could be on notice of any changes in the formulation of the Children’s Product, and whether those changes were specifically devised ‘for children.’ If the changes were made to the relative proportions of inactive ingredients, a comparison of the labels might not reflect any difference at all.”