it’s not misleading to advertise the same thing with two names and two prices

 Lokey v. CVS Pharmacy, Inc., 2020 WL 6822890, No.
20-cv-04782-LB (N.D. Cal. Nov. 20, 2020)

Lokey alleged that CVS violated the FAL/UCL/CLRA by
marketing its CVS-branded infant pain-and-fever medicine at a higher price (up
to two and a half times as much) than its CVS-branded child pain-and fever
medicine, even though the ingredients in the two products are the same. The
court held that reasonable consumers would not be confused and dismissed the

The front labels for the two products describe their
composition identically, including their concentrations of 160 mg/5 mL (a
concentration required by the FDA for infants and children), but brand them for
infants (with a syringe for administering the dosage and with no other representation
about age) and children (with a dosage cup and a representation that the
product is for children from ages 2 to 11 years). The infant version has
instructions for children up to 35 lbs/3 years; the child version goes up to 95
pounds and 11 years; both versions say that for under 24 lbs/2 years one sohuld
“ask a doctor.”

Although it seems to me that Lokey’s argument that “[n]o
reasonable consumer would pay two and a half times as much per ounce and
sometimes more to purchase Infants’ acetaminophen over Children’s acetaminophen
unless he or she had been deceived into thinking that infants cannot safely
take the Children’s product” is plausible, the court disagreed.

Lokey was fundamentally challenging pricing decisions, which
aren’t justiciable without some other deception (which seems like it would be a
surprise to the standard economic take that prices are themselves informational
signals). Boris v. Wal-Mart Stores, 35 F. Supp. 3d 1163 (C.D. Cal. 2014)
(rejecting essentially the same claim for headache remedies), aff’d, 649 F.
App’x 424 (9th Cir. 2016).

Relatedly, “the labels here would not mislead a reasonable consumer.”
The front label disclosed the compositional identity, and they have different
delivery mechanisms (syringe and cup). The pictures of infants and older
children, respectively, and the dosing instructions “do not plausibly suggest
different formulations, given the front-label representation about the
composition of the medicines.” “What ultimately dooms Plaintiff’s claims is
that Defendant tells the consumer exactly what she is getting: the package
actually discloses the fact that Plaintiff complains it omits[.]”

from Blogger

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