EIDMANN v. WALGREEN CO.

Background

Cameron Eidmann filed a proposed class action against Walgreen Co. concerning two store-brand liquid acetaminophen products: Walgreens Infants’ Pain & Fever and Children’s Pain & Fever Acetaminophen. He alleged that Walgreens marketed them as separate products even though they contained the same medicine, causing consumers to believe the infant product was specially formulated for infants and to pay substantially more for it.

The First Amended Complaint asserted four causes of action: violations of California’s False Advertising Law and Consumer Legal Remedies Act; violations of the fraudulent and unlawful prongs of California’s Unfair Competition Law; and a violation of the unfair prong of that law. Walgreens moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Court’s Analysis

The court took judicial notice of Walgreens’ requested Food and Drug Administration regulations, FDA website materials, and product-label images. It denied Walgreens’ request concerning court orders from other cases, although it could consider those decisions as persuasive authority.

The court considered the false-advertising, Consumer Legal Remedies Act, and fraudulent-Unfair Competition Law claims together because they relied on the same theory. Applying the reasonable-consumer test, the court found it implausible that a significant portion of consumers would believe the infant product was specially formulated for infants. The court emphasized that both products prominently listed the same acetaminophen concentration, the stated age ranges overlapped, and the infant product identified its infant-specific syringe. It also noted that the labels used cartoon-like illustrations rather than photographs. The court concluded that the word “infants” in the product name did not overcome these disclosures.

The court also rejected Eidmann’s omission theories. It found that the packaging did not make an affirmative representation that the infant product had a unique or different formula. It further found that Eidmann had not adequately alleged a duty to disclose because he did not establish a fiduciary relationship or that Walgreens had exclusive knowledge of information consumers could not determine from the packaging.

The court ruled that the unlawful-prong Unfair Competition Law claim failed because it depended on the other alleged statutory violations, which were inadequately pleaded. It reached the same result for the unfair-prong claim because that claim relied on the same alleged deception.

Disposition

The court granted Walgreens’ motion to dismiss all claims under the False Advertising Law, Consumer Legal Remedies Act, and Unfair Competition Law. It determined that amendment would be futile because Eidmann had already amended his complaint and the court’s analysis relied on undisputed disclosures on the product packaging. The claims were dismissed with prejudice. Judge Edward J. Davila signed the order on February 26, 2021.