This post is from the non-Reed Smith side of the blog.

One would assume the title of this post to be a given.  Afterall, the crux of a fraud claim is that the consumer was deceived or misled in some way.  Therefore, truthful and accurate statements should not be grounds for consumer fraud claims.  But that was indeed plaintiff’s argument in Hartwich v. Kroger Co., 2021 U.S. Dist. LEXIS 190192 (C.D. Cal. Sep. 20, 2021).

Plaintiff alleges she purchased over-the-counter liquid Infants’ Pain and Fever Acetaminophen, Age2-3 Years.  The manufacturer also makes a children’s version of liquid acetaminophen for children ages 2-12 years old.  The concentration of the active ingredient is the same in both products.  However, plaintiff alleged that the infant product label was deceiving because it implies that the product is “specially formulated for—or otherwise to be used exclusively for—infants.”  Id. at *2.

The product is FDA regulated and the relevant guidance is the 1988 Tentative Final Monograph, deemed a final administrative order last year.  Id.  at *3.  The upshot of the monograph is that acetaminophen that is clearly identified as for use in children need not have additional warnings specifying that they are for children under 12 years of age because the directions for use only provide dosing for under 12 and over 2 years old.  The parties disagreed about how “infant” fit into this description of children with defendant relying on language in guidance from the FDA that infants 2-3 years of age were a subclass of children.  Id. at *5.  The FDA guidance turned out not to be instrumental to the decision because the court declined to decide the motion to dismiss on preemption grounds.  Id. at *11.

But that turned out to be okay in this case.  On consumer fraud claims, the court applies a reasonable consumer test.  That means plaintiff must prove that members of the public were likely to be deceived which is “more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.”  Id. at *11.  That is important in this case where plaintiff did not dispute any of the specific representations on the label, but rather argued that by calling the product “infant” acetaminophen, Age 2-3 years, the manufacturer was implying “some special medicinal property uniquely for infants” 2-3 years old.  Id. at *12.  By further implication, plaintiff argued that the manufacturer was telling consumers that 2-3 year old children could not safely take other acetaminophen products like the Children’s Age 2-11 product which contains the same concentration of acetaminophen but is less expensive.  Id. at *12-13.

What plaintiff failed to do is point to any evidence to support her implication.  The court found plaintiff’s “special medicinal property” argument strained credulity.  Id. at *12.  As plaintiff conceded, nothing in the labeling said the infant product and children’s product were pharmacologically different.  The only thing a reasonable consumer would conclude by the product’s labeling is that it was appropriate for children in the stated age range.  Id. at *14.  But there are differences that matter.  The infant product included a syringe as the preferred dosing system for younger children.  The product was also free of “dyes, high-fructose corn syrup, and other ingredients that may be harmful to young children.”  Id.  So there were legitimate reasons to suggest the infant product was more suitable for younger children.  Because there was nothing misleading about the labeling, all of plaintiff’s claims failed.

The court dismissed the claims with prejudice finding the deficiencies in plaintiff’s case were not the type that could be remedied by pleading additional facts.  The labeling was fully set out in the complaint and no reasonable consumer would have been misled as plaintiff suggested.