On Thursday, the court dismissed the first amended complaint in a putative class action against CVS Pharmacy, Inc. The case, filed in the Northern District of California, sought to certify a class of consumers who say they were deceived by the packaging of two CVS brand products: liquid acetaminophen for children and liquid acetaminophen for infants.
Due to difficulties in swallowing, children and infant medications are often in liquid format with specific concentrations. Acetaminophen, used for pain relief and treating f*evers, is no exception. The Food and Drug Administration (FDA) only permits liquid acetaminophen to be sold in one concentration: 160 milligrams per 5 milliliters. Therefore all products, regardless of the packaging and marketing contain the same product. CVS offers two different sets of packaging and marketing: one labeled for children containing a dosing cup, and one labeled for infants containing a dosing syringe or dropper. The packaging also noted different dosing amounts based upon the weight of the recipient.
The court noted that all cases proceeding under California’s False Advertising Law (FAL), Cal. Bus. & Prof. Code § 17500; California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200–08; and California’s Consumer Legal Remedies Act (CLRA), Cal. Civ. Code §§ 1750– 84, all proceed with a standard of the reasonable consumer. While packaging and labeling may promote different aspects or features of a product, they will not necessarily be confusing to the customer so long as the important information is prominently displayed. The fact that CVS charged more for the packaging promoting infant use of the liquid acetaminophen than it did for the children’s packaging was not inherently confusing or deceptive as the packaging correctly noted that it was the same substances with the same concentration.
The plaintiffs are represented by Keller Grover and the Law Offices of Scot D. Bernstein. The defendants are represented by Greenberg Traurig.
