claims that “infant” formula misleadingly implies special formulation survives

Youngblood v. CVS Pharmacy, 2020 WL 8991698, No. 20-cv-06251-MCS-MRW
(C.D. Cal. Oct. 15, 2020)

Youngblood bought an acetaminophen product for infants,
believing based on its packaging that it was specifically formulated for
infants and therefore different from CVS’s acetaminophen product for children.
The word “infants,” photo of a mother and infant, and instruction to “Compare
to the active ingredients in Infants’ Tylenol Oral Suspension” allegedly drove
that belief. Comparing it to the Children’s product would allegedly reinforce
that belief, because the children’s product displays an image of a parent
holding what appears to be an older child and states that it is “For Ages 2 to
11.” However, they are both dosed at 160 mg/5 mL. The formulations are identical;
the only difference is that the Infant Product comes with a syringe while the
Children’s Product comes with a plastic cup. But the Infant product costs $6.49
per ounce of medicine and the Children’s Product costs $8.79 per eight ounces
of medicine. Plaintiffs brought the usual California statutory claims.

Children’s Version

Infant Version

Although the consumer protection statutes don’t authorize
the court to set retail prices, that’s not what the complaint did. Plaintiffs
didn’t contend that the price was the source of the deception, but relied on:
(1) the name “Infants’ Pain + Fever”; (2) the instruction to “Compare to active
ingredients in Infants’ Tylenol Oral Suspension”; and (3) the picture of what
appears to be a mother holding a young child relative to the older child
featured on the Children’s Product. Without any express disclosure that the medicine
in the bottle is exactly the same, and provided at the exact same
concentration, this could plausibly lead a significant portion of the general
consuming public to concluded that the product was unique or specially
formulated for children under two. Merely displaying the acetaminophen
concentration on each package, or including a syringe in the box, didn’t foreclose
all reasonable inferences that the medicine is specially made for infants. Even
if the box had no literal untruths, a reasonable juror could nevertheless
conclude that it is “has a capacity, likelihood or tendency to deceive or
confuse the public.’ ”

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