Lokey v. CVS Pharmacy, Inc.

Background

Danielle Lokey filed a proposed class action against CVS Pharmacy, Inc. She alleged that CVS marketed and sold infant and children’s liquid acetaminophen products with the same composition, including the same concentration of 160 milligrams per 5 milliliters, but charged more for the infant product—up to two and a half times more. The products used different dosing devices: a syringe for the infant product and a cup for the children’s product. The labels also included different age-related dosing information and images.

Lokey alleged that CVS’s pricing, packaging, marketing, and shelf placement misled reasonable consumers into believing that the infant product was specially formulated for children under two or was the only liquid acetaminophen that could safely be given to them. She asserted claims under California’s False Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act.

Motion to dismiss

CVS moved to dismiss the claims. It argued that the lawsuit improperly challenged CVS’s decision to charge different prices for products with identical ingredients and that pricing decisions were not suitable for judicial resolution. CVS also argued that the labels and the products’ side-by-side placement did not plausibly show that a reasonable consumer would be deceived.

On a motion to dismiss, the court accepts well-pleaded factual allegations as true but requires enough facts to make the claim legally plausible, rather than merely possible. The court also noted that dismissal generally should be followed by an opportunity to amend unless additional facts could not cure the problem.

Court’s analysis

The court relied on a prior decision involving compositionally identical headache-relief products sold under different branding and at different prices. It concluded that, without deception beyond the price difference, a merchant’s pricing decision is not justiciable, meaning it is not an issue the judiciary can resolve under the applicable legal standards. The court found this case similar because both products had the same composition, were marketed to different audiences, and involved a price premium for one audience.

The court then applied the reasonable-consumer test governing the three California consumer-protection claims. Under that test, the plaintiff must plausibly show that members of the public are likely to be deceived. The court held that the labels did not meet that standard. In its view, the front labels disclosed that the medicines had the same composition, while also showing the different dosing devices. The images and dosing instructions did not plausibly suggest that the infant product was a different or specially formulated medicine. The court therefore held that Lokey’s subjective belief that consumers were deceived was insufficient.

The court distinguished two decisions involving similar infant and children’s pain relievers. In one, the infant product did not expressly disclose that its medicine was the same as the children’s product. In the other, the court found that the labels plausibly supported a deception claim. The court concluded that those decisions did not control here because CVS’s labels expressly disclosed the products’ composition.

Disposition

The court granted CVS’s motion to dismiss all claims. Lokey was required to file any amended complaint within two weeks. If she did not do so, the court stated that it would enter judgment in favor of CVS. The order disposed of ECF Nos. 10 and 26.