even if retailer is responsible for price premium, misleading label is actionable

DiGiacinto v. RB Health (US) LLC, — F.Supp.3d —-, 2023
WL 2918745, No. 22-cv-04690-DMR (N.D. Cal. Apr. 11, 2023)

Plaintiff alleged that Children’s Delsym Cough Relief was
misleadingly marketed as different from, and more expensive than, the adult
product, when the concentration is the same. The front of the packaging for the
children’s product contains a cartoon image of a child. It states “Ages 4+” at
the top of the package and “For Children & Adults” at the bottom. The front
of the packaging for the adults’ product contains no statement about the
suitability of the product for any ages: 

The side labels for both products contain an identical
dosing chart that includes dosing amounts for children and adults along with
the statement “Dosing Cup Included” below an image of a cup containing liquid. The
“Drug Facts” labels on the back of the packaging for both products are
identical. Both products contain the same amount of the active ingredient and
the same inactive ingredients.

DiGiacinto further alleged that “[n]o reasonable consumer
who understood that the Children’s Delsym Cough Relief product was formulated
identically to the adult’s Delsym Cough Relief product would choose to pay more
for it.” He brought the usual
California statutory
and common-law claims.

RB Health submitted a declaration by its Trade Marketing Director
stating that RB Health does not sell the Delsym Cough Relief and Children’s
Delsym Cough Relief products “directly to consumers, but, instead, sells the
Products to retailers and to distributors who in turn sell to retailers.” Since
2018, RB Health has sold both products “to the same distributors and retailers
at the same price. The price the consumer pays for the Products is not set by
RB Health.” Thus, RB Health argued, it was not responsible for plaintiff’s harm
and he lacked Article III standing.

But Article III doesn’t require proximate cause.

Here, RB Health was responsible for the different labeling
of identical products, which plausibly linked to his injury in a way that was “more
than attenuated.” Even if RB Health wasn’t responsible for the price premium,
it was allegedly responsible for the representations that allegedly led him to
purchase the more expensive product. “A causation chain does not fail simply
because it has several links, provided those links are not hypothetical or
tenuous and remain plausible.” DiGiacinto also sufficiently alleged that he
will be unable to rely on the advertising or labeling of the children’s product
in the future, providing standing to seek injunctive relief.

This is because DiGiacinto cannot
discover whether RB Health’s misrepresentations have been cured simply by
looking at the children’s product front label since it does not disclose that
it is pharmacologically identical to the adults’ product. Instead, he would
have to inspect and compare the ingredient labels on two separate products,
including the active and inactive ingredients listed, to determine whether the
products are identical in form and quantity. The Ninth Circuit has held that
“reasonable consumers” should not “be expected to look beyond misleading
representations on the front of [packaging] to discover the truth from the
ingredient list in small print on the side of the [packaging],” and RB Health
does not cite any cases holding that a reasonable consumer is expected to
compare labels on more than one product in order to determine whether a label
is accurate.

Cases rejecting similar claims were distinguishable because
here, the front of the packaging of both the children’s and the adults’
products identifies the active ingredient but not its concentration. (That’s
not really a great distinction because it still requires consumers to compare
two different products to avoid deception.) Also, while the front of the
children’s product discloses that it can be used for anyone over four years of
age (“Ages 4+”), the front label of the adults’ product said nothing about age.
“This could lead a reasonable consumer to believe that the adults’ product is
not suitable for children to consume and to purchase the children’s product

from Blogger http://tushnet.blogspot.com/2023/04/even-if-retailer-is-responsible-for.html

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