Prescott v. Rite Aid Corp., — F.Supp.3d —-, 2023 WL
2753899, No. 22-cv-05798-VC (N.D. Cal. Apr. 3, 2023)

Breaking with several previous cases, this court holds that
Rite Aid’s “Maximum Strength Pain Relief Lidocaine Patches” with 4% aren’t
misleading even though a consumer could get a prescription from their doctor
for a 5% patch.

A reasonable consumer understands
that over-the-counter products differ from products that are available with a
prescription. … Reading the label, a reasonable consumer would understand the
patches to contain the “maximum strength” dose available at the drug store, and
they would contemplate the possibility that a stronger dose might be available
from their doctor…. Unless an over-the-counter drugmaker draws a direct
comparison between its products and those available with a prescription,
statements like “maximum strength” are generally understood as comparisons to
other over-the-counter products.

Comment: I’m not sure how the court knows these things.

from Blogger http://tushnet.blogspot.com/2023/04/lidocaine-suits-find-pain-point-as.html