Prescott v. Rite Aid Corporation
- Vince Chhabria
- 3:22-cv-05798
- U.S. District Court · Northern District of California
- 4
In Prescott v. Rite Aid, Judge Chhabria granted Rite Aid’s dismissal motion, ruling consumers would not likely read “maximum strength” as exceeding all prescription options.
Steven Prescott’s claims against Rite Aid Corporation were dismissed, subject to the stated opportunity to amend. Rite Aid prevailed on its motion to dismiss, and the claims would be barred from refiling if Prescott did not amend within 14 days.
What happened
In Prescott v. Rite Aid Corporation, Steven Prescott claimed Rite Aid’s lidocaine patches were misleadingly labeled “Maximum Strength” because prescription patches can contain 5% lidocaine while Rite Aid’s patches contain 4%. He sued under three California consumer-protection laws and also alleged fraud and unjust enrichment.
The court said a reasonable drugstore customer would understand “maximum strength” to mean the strongest dose available without a prescription, not the strongest dose available anywhere. Because Prescott did not plausibly allege that a significant portion of consumers would be misled, the court rejected his theory. The court distinguished situations where a drugmaker directly compares an over-the-counter product with a prescription product.
Judge Chhabria granted Rite Aid’s motion to dismiss. The claims were dismissed with leave to amend if Prescott could, in good faith, allege that Rite Aid referred to prescription products; an amended complaint was due within 14 days. Otherwise, the dismissal would be with prejudice.
The detailed version
- Prescott v. Rite Aid Corporation · No. 3:22-cv-05798
- Vince Chhabria
- Apr. 3, 2023
Background
Rite Aid sells adhesive lidocaine patches for localized pain relief. The labels call them “Maximum Strength Pain Relief Lidocaine Patches” and state that they contain 4% lidocaine. Steven Prescott alleged that the “maximum strength” statement misled consumers because a doctor could prescribe a 5% lidocaine patch.
Prescott asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. He also asserted common-law fraud and unjust enrichment claims.
Court’s Analysis
For the California consumer-protection claims, the court applied the reasonable-consumer test. Under that test, a plaintiff must show that a significant portion of ordinary consumers could be misled by the challenged statement.
The court held that Prescott’s theory was implausible in this context. A reasonable consumer buying a pain-relief patch at a drugstore would understand “maximum strength” as referring to the strongest dose available at the drugstore, while recognizing that a stronger prescription product might be available from a doctor. The court therefore concluded that Prescott had not adequately alleged that a significant portion of consumers would be misled.
The court acknowledged that three other cases had allowed similar claims to proceed. It found the first of those cases at least partly distinguishable because the defendant had directly compared its product with a prescription patch. The court reasoned that such direct comparisons could make “maximum strength” statements misleading. But absent a direct comparison to prescription products, the court held that “maximum strength” generally compares an over-the-counter product with other over-the-counter products.
For the same reason, the court dismissed the fraud claim. Because the other claims were dismissed, it also dismissed the unjust enrichment claim. The court noted that it did not need to decide whether Prescott had standing to seek an injunction.
Disposition
The court granted Rite Aid’s motion to dismiss. It dismissed the claims with leave to amend to the extent Prescott could, in good faith, add allegations that Rite Aid invoked prescription products when discussing its over-the-counter patches. Any amended complaint was due within 14 days of the order; otherwise, the dismissal would be with prejudice.
Judge Vince Chhabria signed the order on April 3, 2023.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.