identical product labeled "For children" and sold at higher price could be deceptive

Mendoza v. Procter & Gamble Co., No. CV 23-1382-DMG (JPRx), 2023 WL 8860900 (C.D. Cal. Dec. 20, 2023)

Mendoza brought the usual California claims, alleging that Vicks Vapo cough and cold treatment products marketed as being for children were identical to the adult versions, only pricier; the court mostly rejected P&G’s motion to dismiss. The Children’s VapoRub front label states that it is for children two and older; the Standard Product’s front label includes no age instruction. Id. ¶ Children’s VapoRub costs approximately $1.03 more per ounce than Standard VapoRub. The Children’s VapoPatch includes a picture of a cartoon child wearing the patch; the Standard Product contains a more defined image of an adult wearing the patch, and costs at least $0.70 less. The Children’s VapoCream includes the language “easy to apply” and illustrations of various objects, such as an airplane, butterfly, flowers, stars, paper airplanes, and clouds; the Standard Product does not have such language or illustrations and costs less.

There was no FDCA preemption of a standard misleadingness claim. Further, the complaint sufficiently alleged an affirmative misrepresentation that led reasonable consumers to believe, falsely, that the products were specially formulated for children—not just a price differential. Negligent misrepresentation claims failed, however, for want of non-economic damages.

Mendoza had standing to challenge the VapoCream products because the products and alleged misrepresentations were sufficiently similar to those of the products she did buy. And she sufficiently alleged that she “would like to, and would consider, purchasing the Products again ... [but] will be unable to rely on the Products’ advertising or labeling in the future, and so will not purchase the Products again although she would like to” to have standing for injunctive relief.