if it’s on the label, courts can presume consumers saw it

Bailey v. Rite Aid Corp., 2021 WL 4469638, No. 4:18-cv-06926
YGR (N.D. Cal. May 26, 2021)

Rite Aid moved to reconsider a previous ruling denying a
motion to dismiss Bailey’s claim against Rite Aid’s marketing of its
over-the-counter acetaminophen gelcaps as “rapid release.” The court declined. “According
to Rite Aid, Bailey failed to show that the members of the proposed class were
exposed to Rite Aid’s allegedly deceptive conduct.” That exposure was dependent
on class members seeing both gelcaps and tablet/caplet forms and comparing them,
Rite Aid argued, but Bailey didn’t show that consumers did compare them. Rite Aid
also argued that it survey showed that “there is a high likelihood that
significant numbers of consumers do not make the product comparison on which
Plaintiff’s deception theory is predicated and upon which the Court granted

But there was no meaningful dispute that the members of the
proposed class were exposed to the labels and prices of Rite Aid gelcaps and
tablets “because such prices and labels were placed within eye-view of
consumers as a result of Rite Aid’s product-placement policies.” Bailey wasn’t
required to show that the proposed class members who were exposed to these
prices and labels were likely to have compared them. “Courts find that exposure
exists where a court reasonably can infer that the class members would be able
to see the misrepresentation at issue.” Being on the label routinely satisfies
that standard.

The court also found Bailey’s advertising expert’s evidence
to be persuasive; that went to whether consumers were deceived into thinking
that Rite Aid gelcaps are faster acting than Rite Aid tablets after comparing them
and relied on that. And Rite Aid’s survey wasn’t enough to avert any factual
issues given its own flaws, which included limited images.

from Blogger https://ift.tt/3BLZcoY

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