Photo of John Sullivan

Maybe I can start a class action.  I mean, I find it annoying that convenience stores don’t carry cold 12-ounce soda cans anymore.  They don’t even carry the 16-oz bottles that existed years ago.  Nowadays, everything’s in a 20-ounce bottle.  But I don’t need 20 ounces of soda.  A twelve-ounce can is fine.  Heck, sometimes even an 8-ounce can is enough.  But at a convenience store, 8-ounce cans are kept next to the unicorn aisle.  Or try getting a 12-ounce cup of soda at a movie theater.  A half-filled “small” cup holds that much.  The cups should come with handles.  And how about the muffins we all now have in the morning?  At my local coffee/tea shop, they’re the size of Volkswagens.  They’re twice the size they were 5 years ago.  The muffin-top is bigger than the whole muffin used to be.

Class action plaintiffs to the rescue.  Well, it’s not a soda or muffin class action.  It’s prescription eye drops.  But the idea is the same.  In Carter v. Alcon Labs., Inc., 2014 U.S. Dist. LEXIS 32381 (E.D. Mo. Mar. 13, 2014), plaintiffs sought to certify a class under Missouri’s common law and Merchandising Practice Act because the smallest bottles of prescription eye drops contained more medication than the dosage for the recommended course of treatment.  For instance, the recommended seven-day course of treatment for Vigamox requires .8 mL, while the smallest bottle of Vigamox holds 3 mL of medication.

So they filed a class action.

And they lost. Fast.  It got only as far as a motion to dismiss.

Why?  In short, the plaintiffs got the benefit of the bargain.  They got what they paid for.  They had no loss:

Under the benefit-of-the-bargain test, which awards a prevailing party the difference between the value of the product as represented and the actual value of the product as received, Plaintiff has not suffered an ascertainable loss.  Plaintiff does not allege that the medication she purchased was anything other than represented or that it did not perform as intended.

The Court concludes that even without applying the benefit-of-the-bargain test for loss under the MMPA, Plaintiff has failed to state a claim.  Plaintiff’s theory of her loss is the difference between what Defendants charge for the medication bottle available to consumers and the price they would charge for a bottle with less medication.  However, even if Defendants sold bottles with less medication, Plaintiff has not suggested there is anything to preclude them from charging what they now charge for the bottles currently available for purchase. Plaintiff has cited no authority from any jurisdiction suggesting that a drug manufacturer’s choice of volume fill is an unfair practice, and this Court concludes that the Missouri Supreme Court would find that absent fraud or duress or price gauging, none of which were alleged here, no such cause of action exists under the MMPA.

Similarly, Plaintiff’s claims for unjust enrichment and money had and received also fail. . . .

Id. at *11-12.

When medication is involved, this makes a whole lot of sense.  Certainly for a branded manufacturer, there’s nothing to suggest that a bottle with less medication would cost meaningfully less.  Even we lawyers know that the vast amount of the cost of a distributing medication comes from developing it.  Even generic manufacturers have significant costs other than the medication itself.  Frankly, there seems to be a whole lot of other things that would be wrong with this type of claim.  But the court got rid of it in the simplest way.  Plaintiffs got what they paid for.

There was also a preemption issue here.  The defense argued that it couldn’t relabel or redesign the bottles for these generic eye drops because it needed FDA approval to do that.  The defense lost this argument, but only because it hadn’t sufficiently established the need for prior FDA approval.  We suspect that, if another defendant in another class action makes such a showing, there will be preemption.

In any event, these “overfill” class actions seem to be going nowhere.  Oh, well.  It seems that the next time we’re reading one of these opinions, we’ll still be doing it while gulping a 20-ounce soda and hacking away at a huge peach-apple-crumb muffin.  Things could be worse.