Eidmann v. Walgreen Co.: California Northern District Court Dismissed Class Action against Walgreens

On February 26, 2021, the U.S District Court for the Northern District of California decided on a class action suit alleging that Walgreens misled consumers into believing that its own brand Infants’ Pain & Fever Acetaminophen was specially formulated for infants. However, the court dismissed the class action as it found that the labeling on the product would not likely confuse reasonable consumers. Eidmann v. Walgreen Co., No. 20-cv-04805-EJD (N.D. Cal. Feb. 26, 2021).

In the year 2011, in the wake of an across-industry effort to prevent accidental infant overdoses, the acetaminophen manufacturers reduced the concentration of liquid acetaminophen in infants’ products to align it with the quantity of the same in children’s products. As a consequence, Walgreen’s store brand, the Infants’ Pain & Fever Acetaminophen (the “Infants’ Product”) and Children’s Pain & Fever Acetaminophen (the “Children’s Product”), both contain a concentration of 160 mg acetaminophen per 5 ml of product, and the same was disclosed by the company. It was also noted that the stated products were differentiated by depiction of the dosing mechanism. The Infants Product displayed a picture of a syringe with the instruction to “use only with enclosed syringe.” On the other hand, the Children’s Product had a picture of a dosing cup on its packaging. Another differentiation between the products is that Infants’ Product displays an age of 2-3 years, while the Children’s Product states it is for 2-11 years. However, according to the Plaintiff in this case, Walgreen by selling the Infants’ Product and Children’s Product as two separate products, was misleading consumers into believing that the Infants’ Product is specially formulated for the infants. Plaintiff also alleged that the products deceived consumers into paying a price at a premium rate even though the products have the same concentration of the active ingredient. And as a result of the same, the plaintiff claimed that Walgreens violated California’s False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA) and Unfair Competition Law (UCL).

After hearing both the parties, the Court however, decided to dismiss plaintiff’s claims. Its decision was based on the finding that no reasonable consumer would be confused that the Infants’ Product is specially formulated for infants. In reaching this decision, the court referred to a recent judgment of the Northern District, Lokey v. CVS Pharmacy, Inc, No. 20-CV-04782-LB, 2020 WL 6822890 (N.D. Cal. Nov. 20, 2020). In the Lokey case, the plaintiff alleged that CVS’s store-brand infant acetaminophen deceives the consumers into believing that the said product was specially formulated for children aged under two years, as compared to its other children’s product. The court in this case stated that the assessment of packaging of the two products revealed that the front labels disclosed that the medicines have the same composition. Therefore, depiction of differing dosing instructions and images of children of different ages, could not plausibly mislead the consumers in believing that the products had different formulations.

Similarly, in the present case, Judge Davila noted that the acetaminophen concentration on both the Infants’ Product and Children’s Product was clearly listed in bolded lettering as “160 mg per 5 ml” on the front of both the packages. Also, the concentration was listed in bold and highlighted letters in the “Drug Facts” section on the back of the products. Since the information on concentration was clearly demonstrated, the court found that the depictions of different dosing instructions on the packaging of the two products would not likely mislead a reasonable consumer into believing that the products have different formulations. Judge Davila held that the infant-specific branding “ more reasonably pertains to the infant-specific dosing mechanism included to administer the product.” Further, the court noted that the labeling of the two products overlapped, as one had the age range of 2-3 years and the other was for children of 2-11 years. This allowed a consumer of either of the product to compare the product and reach to a conclusion that the products contained the same concentration of acetaminophen and that they can be used by children of identical ages.

The judgment delivered by the U.S. District Court of the Northern District of California is an important reminder that deception asserted by plaintiff upon its unsupported assumptions, are liable to be dismissed. The judgment is also important for the manufactures and advertisers seeking to reformulate products, that they need to consider the implications of the same in spurring a class action from an overreaching plaintiff.

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