“Maximum Strength” is plausibly misleading when cheaper Regular Strength has more active ingredient by volume

Al Haj v. Pfizer
Inc., 2019 WL 3202807, No. 17 C 6730 (N.D. Ill. Jul. 16, 2019)
Al Haj alleged that
Pfizer deceived consumers by charging more for “Maximum Strength” Robitussin
cough syrup than for “Regular Strength” Robitussin even though the former had a
lower concentration of active ingredients than the latter. The court denied
Pfizer’s summary judgment motion and Al Haj’s motion for class certification,
without prejudice.
Al Haj switched from
Regular Strength to Maximum Strength; when she bought, Maximum Strength
Robitussin cost some two dollars more than Regular Strength Robitussin. Both
products contained  two active
ingredients: dextromethorphan hydrobromide (“DXM Hbr”), a cough suppressant,
and guaifenesin, an expectorant. 
Before June 2016,
the recommended dosage of Maximum Strength Robitussin was 10 ml, and each 10 ml
dose of Maximum Strength Robitussin contained the same amount of DXM Hbr (20
mg) but twice as much guaifenesin (400 mg) as the recommended 10 ml dose of Regular
Strength Robitussin. Pfizer then reformulated Maximum Strength Robitussin to
change the recommended dose from 10 ml to 20 ml while keeping Regular Strength
Robitussin’s recommended dose at 10 ml. Pfizer placed a “See New Dosing” alert
at the upper right corner of the product’s box.

The reformulation halved
the product’s concentration of active ingredients. Until Pfizer in mid-2018
similarly doubled Regular Strength Robitussin’s recommended dosage size from 10
ml to 20 ml and thereby halved its concentration of active ingredients, Maximum
Strength Robitussin had the same concentration of guaifenesin but only half the
concentration of DXM Hbr as Regular Strength Robitussin. Because both products
were sold in bottles of the same size, a bottle of Regular Strength Robitussin
had twice as many doses as a bottle of Maximum Strength Robitussin, which cost
more. Pfizer internally touted the reduced number of doses per bottle of
Maximum Strength Robitussin as a positive result of the reformulation.
Al Haj switched
after reading the “Maximum Strength” label and assuming that Maximum Strength
Robitussin would be more effective than Regular Strength Robitussin. Pfizer’s
own market research concluded that “quite a few” consumers would be willing to
spend more on maximum strength medication because they perceive it to “work
better and provide more value” than regular strength medication. Al Haj did not
compare in detail the Regular Strength and Maximum Strength packaging when she
decided to purchase Maximum Strength Robitussin. Even after learning that the
recommended dose was 20 ml, she purchased Maximum Strength Robitussin at least
two more times despite knowing that its 20 ml dose was twice the recommended
dose of Regular Strength Robitussin.
The Illinois Consumer
Fraud and Deceptive Business Practices Act bans “deceptive business practices”
as well as “business practices that, while not deceptive, are unfair.”  Pfizer argued that the packaging Al Haj saw
included a “See New Dosing” alert on the front of the box and an explanation of
“Maximum Strength” on the back. Pfizer argued that this cured any possible
ambiguity about the meaning of the ‘maximum strength’ claim” as a possible
comparison to regular strength. But, even if the alert would have led a
reasonable consumer to read the dosage information, the consumer wouldn’t have
known that Maximum Strength had a lower concentration of active ingredients
than Regular Strength unless she calculated and compared the products’
concentrations. “[I]t is not reasonable to expect a consumer to cross-check a
product’s ingredient list against another product’s list and then perform
arithmetic to make sure she is comparing equivalent dosage volumes, all to
ensure that the product she intends to purchase has the qualities it purports
to have.” Even though the label stated on the back “Maximum strength claim
based on maximum levels of active ingredients per dose,” “using fine-print text
to obliquely walk back a prominent claim on the front of the box—particularly
absent other product features that contextualize that claim—generally does not
preclude a jury finding that the frontside claim was deceptive.”
The court pointed
out that “by placing a prominent ‘Maximum Strength’ designation on what
otherwise was materially the same frontside packaging as Regular Strength
Robitussin, Pfizer invited consumers viewing both products to assume that a
more expensive bottle of Maximum Strength Robitussin had a greater
concentration of active ingredients than the bottle of Regular Strength
Robitussin.” Moreover, “a reasonable consumer would conclude that she was being
charged more for a bottle of Maximum Strength Robitussin than she would have
paid for a bottle of Regular Strength Robitussin because the former had more
potency per volume than the latter.” Pfizer couldn’t take that implication back
with disclaimers that were oblique at best.
Pfizer invoked the
(bad) decision
holding that 100% Grated Parmesan Cheese
doesn’t mean 100% grated parmesan cheese
where the label expressly disclosed the presence of cellulose. But “unlike
the cheese product in Parmesan, which remained ‘shelf-stable at room
temperature,’ there is no commonsense, ‘observable’ impediment to a consumer
concluding that a bottle of Maximum Strength Robitussin has a higher
concentration of active ingredients than Regular Strength Robitussin.” A jury
could conclude that the relative concentrations of active ingredients in
Regular Strength and Maximum Strength Robitussin were “non-obvious product
qualities that consumers may reasonably rely on packages to clearly disclose.”
Moreover, while “a quick skim of the ingredient label” on the backside of the
packaging of the cheese product showed that the product contained “something
other than cheese” and thereby cured any ambiguity, nothing on the backside of
the Maximum Strength package cured the “Maximum Strength” claim’s ambiguity;
cross-checking with another package and doing math would have been required.
Did Al Haj suffer
actual pecuniary damage? Al Haj ultimately switched to a more expensive Delsym
product, not the less expensive Regular Strength Robitussin. But a reasonable
jury still could find that she suffered “actual pecuniary loss” when she
switched from Regular Strength to Maximum Strength Robitussin and thereby paid
more for a product that had a lower concentration of active ingredients than
its packaging implied. Her injury was established at the time of purchase,
regardless of whether [s]he later was dissatisfied with” Robitussin “and
regardless of whether [s]he would have purchased a substitute product.”  Cases finding no actual damage involve prices
lower than the alternatives, but Al Haj had a cheaper alternative: Regular
Strength. Pfizer argued that the products weren’t comparable because they had
different amounts per dose of the same active ingredients, but a less expensive
alternative need only be “similar,” not identical, to serve as a comparator for
purposes of establishing actual damage under the ICFA. 
Proximate case:
Pfizer argued that Al Haj admitted that she did not purchase Maximum Strength
Robitussin under the “belief that the medication had a higher concentration of
active ingredients per volume” than Regular Strength Robitussin. But “the ICFA
does not require a plaintiff to show actual reliance or diligence in
ascertaining the accuracy of misstatements.” 
Deception was enough, and Al Haj testified that she thought Maximum
Strength would be more effective and thus a better value than Regular
Strength.  Even if she knew the
recommended doses (20 ml vs. 10ml) after her first Maximum Strength purchase, that
wasn’t enough to cure the alleged deception, as she still would need to
“perform arithmetic” and a “cross-check” based on each “product’s ingredient
list” to learn the concentration of active ingredients in each bottle.

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