Thompson v. Sanofi-Aventis U.S. LLC

Background

Kristyn Thompson bought Chattem, Inc.’s “Cortizone-10 Maximum Strength” anti-itch cream as an over-the-counter product without a prescription. The packaging stated that the cream contained 1% hydrocortisone. Thompson alleged that the words “maximum strength” misled her and deprived her of the benefit of her bargain because a 3% hydrocortisone cream was available by prescription.

Thompson asserted several California consumer-fraud claims on behalf of herself and proposed nationwide and California classes.

Motion and Arguments

Chattem moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not adequately state a legal claim. Chattem primarily argued that a reasonable consumer would understand “maximum strength” to mean the strongest formulation available in an over-the-counter product without a prescription.

Thompson argued that what a reasonable consumer would understand was a factual issue that should not be decided on a motion to dismiss.

Court’s Analysis

The court acknowledged that consumer deception can sometimes involve factual questions that are not appropriate for resolution on a motion to dismiss. But it held that Thompson still had to plead facts allowing a reasonable inference that Chattem was liable for the alleged misconduct.

The court concluded that the complaint did not meet that threshold. In the court’s view, a reasonable consumer would understand that a product available over the counter without a doctor’s prescription would not be the strongest possible formulation. The court reasoned that over-the-counter products are available for consumers to select themselves, while more powerful formulations require a physician’s authorization.

The complaint did not allege that the cream contained less than the 1% hydrocortisone stated on its packaging or that an over-the-counter product could contain more than 1% hydrocortisone. The court found that the availability of a stronger, 3% formulation by prescription did not make a reasonable consumer feel deceived by the over-the-counter product’s “maximum strength” label.

Disposition

The court dismissed the First Amended Complaint with leave to amend. Thompson could file an amended complaint consistent with the order by June 17, 2024. The court stated that failure to meet the deadline would result in dismissal of the case under Rule 41(b).

The court did not address Chattem’s objection that Thompson lacked standing to seek injunctive relief.