Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 1 of 11
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`San Francisco Division
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`DANIELLE LOKEY, individually and on behalf
`of a class of similarly situated individuals,
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`Plaintiff,
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`v.
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`CVS PHARMACY, INC.,
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`Case No. 20-cv-04782-LB
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`ORDER DISMISSING FIRST
`AMENDED COMPLAINT
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`Re: ECF No. 42
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`Defendant.
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`INTRODUCTION
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`In this putative class action, the plaintiff challenges CVS Pharmacy’s marketing of its CVS-
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`branded pain-and-fever medicine for infants (called Infants’ acetaminophen) at a higher price than
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`its CVS-branded pain-and fever medicine for children (called Children’s acetaminophen), even
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`though the ingredients in the two products are the same. She claims that this practice violates three
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`California consumer-protection laws: (1) California’s False Advertising Law (FAL), Cal. & Prof.
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`Code § 17500; (2) California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§
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`17200–08; and (3) California’s Consumer Legal Remedies Act (CLRA), Cal. Civ. Code §§ 1750–
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`84.1 The court previously dismissed the plaintiff’s initial complaint on the ground that — as a
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`1 First Am. Compl. (FAC) – ECF No. 40. Citations refer to material in the Electronic Case File (ECF);
`pinpoint citations are to the ECF-generated page numbers at the top of documents.
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`ORDER – No. 20-cv-04782-LB
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 2 of 11
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`matter of law — the labels disclosed the products’ composition and would not deceive a
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`reasonable consumer.2 The amended complaint changes the allegations about product placement in
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`the store and adds allegations about consumer confusion. Given the labels, however, the new
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`allegations do not alter the court’s earlier conclusion that the labels would not deceive a
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`reasonable consumer. The court thus dismisses the complaint.
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`1. Allegations in the Complaint
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`STATEMENT
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`CVS markets and sells its CVS-branded products in its stores and online — including an
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`infants’ liquid acetaminophen and a children’s liquid acetaminophen — under the “CVS Health”
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`label.3 Named plaintiff Danielle Lokey bought the infants’ acetaminophen on several occasions
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`“between April 2016 and the present. . . .”4 The products are identical compositionally, but CVS
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`charges a higher price (as much as two and a half times) for the infants’ product.5
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`The front labels for the two products describe their composition identically (including their
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`concentrations of 160 mg/5 mL) but brand them for infants (with a syringe for administering the
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`dosage and with no representation about infant age) and children (with a dosage cup and a
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`representation that the product is for children from ages two to 11 years). (The FDA requires that
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`liquid acetaminophen must be available for infants and children only in concentrations of 160
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`milligrams per 5 milliliters.6) The complaint has the front labels, and CVS submitted the full
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`labels. The following are the images of the labels: the first two are from CVS, and the third is the
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`slightly different (but virtually identical) Infants’ label in the complaint.7
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`2 Order – ECF No. 36.
`3 FAC – ECF No. 40 at 2 (¶ 3).
`4 Id. at 11 (¶ 42).
`5 Id. at 3 (¶ 10), 7 (¶ 27).
`6 Id. at 6 (¶ 22).
`7 The court takes judicial notice of the labels and considers them under the incorporation-by-reference
`doctrine. Order – ECF No. 36 at 2 n.9; Req. for Judicial Notice – ECF Nos. 11, 31; Fed. R. Evid.
`201(b); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). The label in the FAC for the Infants’
`formula has a mother, not a father, but is essentially the same. FAC – ECF Nos. 40 at 8 (¶ 29b).
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`ORDER – No. 20-cv-04782-LB
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 3 of 11
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 4 of 11
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`The infants’ label has the following instructions for dosages:
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`Dosing Chart
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`Weight (lb)
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`Age (yr)
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`Dose (mL)*
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`under 24
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`24–35
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`under 2 years
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`ask a doctor
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`2–3 years
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`5 mL
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`*or as directed by a doctor
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`The children’s label has the following instructions for dosages:
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`Weight (lb)
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`Age (yr)
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`Dose (mL)*
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`under 24
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`under 2 years
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`ask a doctor
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`24–35
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`36–47
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`48–59
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`60–71
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`72–95
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`2–3 years
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`4–5 years
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`6–8 years
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`9–10 years
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`11 years
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`5 mL
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`7.5 mL
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`10 mL
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`12.5 mL
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`15 mL
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`*or as directed by a doctor
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`The previous complaint said that the two products were displayed on the same shelf in CVS’s
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`retail stores (creating confusion).8 The amended complaint said that the products are in two
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`different places: the children’s product “is principally found some distance away in the ‘children’s
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`care’ section of CVS stores (as opposed to the ‘baby care’ section of the stores).”9
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`The complaint explains why the products’ compositions are identical. Before 2011, the
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`acetaminophen concentrations in infants’ and children’s products were different, which led
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`8 Compl. – ECF No. 4-1 at 4 (¶ 4).
`9 FAC – ECF No. 40 at 8 (¶ 30).
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 5 of 11
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`consumers to give incorrect doses, causing overdoses. By December 2011, to prevent overdoses, the
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`FDA said that liquid acetaminophen marketed for infants would be available only in concentrations
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`of 160 milligrams per 5 milliliters (the 160 mg/5 ml reflected on the labels).10
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`The complaint’s allegations address consumer habits and confusion. Parents are careful when
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`they buy medicines for infants. CVS exploits this caution by packaging that suggests that its
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`Infants’ products are specially formulated for infants. Parents have a conventional understanding
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`that they should buy medicine branded for infants: “Numerous parenting resources, such as the
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`popular parenting website ‘What to Expect,’ express the conventional understanding that infants
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`always should be given the infant formulations. Similarly, the frequently visited website
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`KidsHealth.org instructs parents to know ‘the name and purpose of the medicine’ and to ‘never give
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`a child medicine that is meant for adults.’” The acetaminophen-awareness coalition
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`KnowYourDose.org warns parents to “always look at the minimum age recommended for taking
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`the medication and don’t give it to your child if he/she is younger than the recommended age unless
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`you have discussed it with your healthcare provider.”11
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`The products are “wholly interchangeable in all material respects.” CVS’s deceptive practices
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`“harness the fear of acetaminophen toxicity to trick consumers . . . into purchasing and overpaying
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`for Infants’ acetaminophen when Children’s acetaminophen would be equally safe and effective at a
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`fraction of the price.”12
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`2. Relevant Procedural History
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`The court dismissed the plaintiff’s earlier complaint with leave to amend. The plaintiff
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`amended the complaint, and CVS moved to dismiss it. All parties consented to magistrate-judge
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`jurisdiction. 13 The court held a hearing on February 18, 2021.
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`10 Id. at 6 (¶¶ 21–22).
`11 Id. at 9–10 (¶¶ 34–36, 38) (website citations omitted).
`12 Id. at 11 (¶ 40). The FAC also references a consumer survey about Infants’ Tylenol, where customers
`believed it to be specially formulated for infants. Id. at 10–11 (¶ 39); Mot. – ECF No. 42 at 10 (arguing
`irrelevance). The allegations are conclusory, about a different product, and thus irrelevant.
`13 Order – ECF No. 36; FAC – ECF No. 40; Mot. – ECF No. 42; Consents – ECF Nos. 12, 14.
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`ORDER – No. 20-cv-04782-LB
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 6 of 11
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`STANDARD OF REVIEW
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`A complaint must contain a “short and plain statement of the claim showing that the pleader is
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`entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon
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`which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
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`complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the
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`‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
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`recitation of the elements of a cause of action will not do. Factual allegations must be enough to
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`raise a claim for relief above the speculative level[.]” Twombly, 550 U.S. at 555 (cleaned up).
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`To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which
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`when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
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`the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a
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`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully.” Id. (citing Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are
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`merely consistent with a defendant’s liability, it stops short of the line between possibility and
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`plausibility of ‘entitlement to relief.’” Id. (cleaned up) (quoting Twombly, 550 U.S. at 557).
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`If a court dismisses a complaint, it should give leave to amend unless the “pleading could not
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`possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co.,
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`848 F.3d 1161, 1182 (9th Cir. 2016) (cleaned up).
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`ANALYSIS
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`CVS moved to dismiss the amended complaint on the ground that the plaintiff did not
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`plausibly plead that the products’ packaging — which disclosed that the products were
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`compositionally identical and differ in that they display different pictures of children and different
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`dosing devices (a syringe for infants and a cup for children) — would deceive a reasonable
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 7 of 11
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`consumer.14 The plaintiff countered that she plausibly alleged consumer confusion, and it is a fact
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`question — not suitable for resolution at a motion to dismiss — whether the labels are misleading
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`or deceptive.15 The labels here are not deceptive. As a result, the plaintiff’s challenge is only to the
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`different pricing, which is not justiciable.
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`Claims under the CLRA, FAL, and UCL are governed by the “reasonable consumer” test.
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`Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). “Under the reasonable
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`consumer standard, [plaintiffs] must show that members of the public are likely to be deceived.”
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`Id. (cleaned up). “[W]hether a business practice is deceptive will usually be a question of fact not
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`appropriate for decision on [a motion to dismiss]” because [it] requires “‘consideration and
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`weighing of evidence from both sides.’” Id. at 938–39 (cleaned up) (quoting Linear Tech. Corp. v.
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`Applied Materials, Inc., 152 Cal. App. 4th 115, 134–35 (2007)). “The California Supreme Court
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`has recognized that these laws prohibit ‘not only advertising which is false, but also advertising
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`which, although true, is either actually misleading or which has a capacity, likelihood or tendency
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`to deceive or confuse the public.’” Id. at 938 (cleaned up) (quoting Kasky v. Nike, Inc., 27 Cal. 4th
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`939, 951 (2002)). “A perfectly true statement couched in such a manner that it is likely to mislead
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`or deceive the consumer, such as by failure to disclose other relevant information, is actionable
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`under these sections.” Day v. AT&T Corp., 63 Cal. App. 4th 325, 332–33 (1998).
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`As the court held previously, the labels are not deceptive. The front labels for both products
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`show their concentrations of 160 milligrams per 5 milliliters (the 160 mg/5 ml reflected on the
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`labels). Obviously, the products are targeting different markets: parents of infants and parents of
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`children. Obviously, the CVS labeled the products differently, branding them an infants’ product
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`and a children’s product (shown by the names, the photographs of the children, and the different
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`devices to deliver the doses: a syringe for infants and a cup for children). But nothing about the
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`labels is misleading about the products or their composition. To the contrary, the labels are
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`accurate. Bush v. Mondelez Int’l, Inc., No. 16-CV-02460-RS, 2016 WL 7324990, at *2–3 (N.D.
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`14 Mot. – ECF No. 42 at 6.
`15 Opp’n – ECF No. 46 at 7.
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`ORDER – No. 20-cv-04782-LB
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`Cal. 2016) (consumer-deception claim was implausible because no reasonable consumer was
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`likely to be deceived by packaging that disclosed the net weight and number of cookies per
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`container); Sponchiado v. Apple Inc., 18-CV-07533-HSG, 2019 WL 6117482, at *4–5 (N.D. Cal.
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`Nov. 18, 2018) (dismissing CLRA, UCL, and FAL claims challenging Apple’s alleged
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`misrepresentations about pixel resolution because disclaimer language appearing 10 lines below
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`contradicted the plaintiffs’ interpretation).
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`This case is like Boris v. Wal-Mart Stores, addressed in the earlier order. 35 F. Supp. 3d 1163
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`(C.D. Cal. 2014), aff’d, 659 F. App’x 424 (9th Cir. 2016). In Boris, a putative class action, the
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`plaintiffs challenged two Wal-Mart headache-relief products that had the same composition
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`(ingredients and amounts), were branded differently (Equate Migraine with a red background and
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`Equate Extra Strength Headache Relief with a green background), and were priced differently (the
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`migraine product was priced higher than the other product). Id. at 1166. The plaintiffs alleged that
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`the difference in pricing conveyed that the higher-priced medicine was more effective. Id. at 1168.
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`The court dismissed the FAL, UCL, CLRA claims (and similar claims under New York and New
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`Jersey consumer-protection statutes), holding that the product background was not deceptive and
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`the plaintiffs’ challenge to the merchant’s pricing decisions was not justiciable. Id. at 1169–70.
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`Plaintiffs have not pointed to any specific constitutional, statutory, or regulatory provision
`that embodies a policy that Equate Migraine’s price and red packaging violate. And the
`Court is aware of none. Absent some legislative enactment, price setting is ordinarily left
`to the business judgment of merchants. Taken to its logical conclusion, Plaintiffs’ claim
`requires the judiciary to make pricing decisions, such as ruling that pharmacologically
`identical drugs must be the same price or may have only a limited price differential, or
`imposing liability for differential pricing on a necessarily unpredictable case-by-case
`basis. . . . To state this reality is to demonstrate that it is untenable: price regulation is a
`political question beyond the judiciary’s authority. A question is a political question and
`therefore nonjusticiable when, for example, there is “a lack of judicially discoverable and
`manageable standards for resolving it [ ] or the impossibility of deciding without an initial
`policy determination of a kind clearly for nonjudicial discretion . . .” Baker v. Carr, 369
`U.S. 186, 217, 82 S. Ct. 691, 7 L.Ed.2d 663 (1962). California courts have consistently
`described price regulation as “a question of economic policy . . . [i]t is the Legislature’s
`function, not ours, to determine the wisdom of economic policy. Judicial intervention in
`such economic issues is improper.
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`Id. at 1171–72 (cleaned up) (collecting cases). Like Boris, this case involves compositionally
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`identical products targeted at two audiences (there, migraine sufferers and headache sufferers and
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`ORDER – No. 20-cv-04782-LB
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 9 of 11
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`here, parents of infants and parents of children). Both involve different branding (the backgrounds
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`in Boris and the images of infants and children here) to entice different audiences. Both cases
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`involve a price premium on a product marketed to one audience. Applying Boris, because there is
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`no deception beyond the price differential, the plaintiff’s challenge is a non-justiciable challenge
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`to CVS’s pricing decisions. Id. at 1172.
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`The plaintiff cites two out-of-district cases, Elkies and Youngblood — both involving
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`challenges to pain relievers with identical compositions that were marketed to different audiences
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`(parents of infants and parents of children) — to support her contention that she plausibly pleads a
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`case of deception.16 In Elkies, the products were infants’ Tylenol and children’s Tylenol. Elkies v.
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`Johnson & Johnson Servs., Inc., No. 17-cv-07320-GW, Order – ECF No. 53 at 2 (C.D. Cal. Feb.
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`22, 2018). In Youngblood, the products were the products in this case. Youngblood. v. CVS, No.
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`2:20-cv-06251-MCS-MRW, Order – ECF No. 31 at 2 (C.D. Cal. Oct. 15, 2020).
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`As the court held previously, Elkies is distinguishable: there was no express disclosure that the
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`“medicine in the [Infants’] bottle is exactly the same, and provided at the exact same
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`concentration, as Children’s[.]”17 Order, No. 17-cv-07320-GW, ECF No. 53 at 9. In Elkies, the
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`picture of a mother and baby (“along with the word ‘Infants’” but without the express disclosure
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`that the medicine was the same) could lead a “significant portion of the general consuming public”
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`to conclude that the infants’ product was “unique or specially formulated for children under two.”
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`Id. By contrast, the front label here expressly discloses the medicine’s composition.
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`In Youngblood, involving the products in this case, the court held that the front labels — with
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`their different photographs of children of different ages — plausibly pleaded consumer deception
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`(in the form of a belief that the product was formulated for infants) in part because the label
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`branded the products for “children under two.” Order, No. 2:20-cv-06251-MCS-MRW, ECF No.
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`31 at 7–8. To support that conclusion, the court cited Mullins v. Premier Nutrition for the
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`proposition that a reasonable consumer would believe that the offending product was “specially
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`16 Id. at 21–22.
`17 Order – ECF No. 36 at 9.
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`ORDER – No. 20-cv-04782-LB
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`formulated for infants.” Id. at 7 (citing Mullins, 178 F. Supp. 3d 867, 891 (N.D. Cal. 2016)).
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`Mullins involved a dietary product that claimed it promoted joint health. 179 F. Supp. 3d at 891.
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`On summary judgment, the Mullins court held that the plaintiff raised triable issues of fact that
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`consumers bought the product to reduce joint pain and stiffness and that the product (characterized
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`as snake oil) did not work. Id. at 875–76, 892.
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`But here (and in Youngblood), the plaintiffs do not challenge the efficacy of the product (a fact
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`disputed in Mullins) and instead challenge marketing that allegedly misleads a consumer into
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`believing that the medicine is specially formulated for children under age two. Like the products in
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`Boris, products that are identical can be marketed to different audiences: migraine-headache
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`sufferers and regular-headache sufferers, parents of infants and parents of children, adults and
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`children (or other age ranges), professional athletes and weekend athletes, or different genders, to
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`name a few. If the labels are accurate, and the difference is only the pricing, then the claim is not
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`justiciable. Boris, 35 F. Supp. 3d at 1169–71. Mullins — a case about an allegedly ineffective
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`product — does not compel the conclusion that the plaintiff pleads plausible claims when the label
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`discloses what the consumer is purchasing. “What ultimately dooms Plaintiff’s claims is that
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`Defendant tells the consumer exactly what she is getting: the package actually discloses the fact
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`that Plaintiff complains it omits.” Dinan v. Sandisk LLC, No. 18-CV-05420-BLF, 2019 WL
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`2327923, at *7 (N.D. Cal. May 31, 2019) (cleaned up).
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`For this reason, the plaintiff’s citation to other cases involving products that were marketed as
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`effective (when they allegedly were not) does not compel a contrary conclusion.18 See, e.g., Brady
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`v. Bayer Corp., 26 Cal. App. 5th 1156, 1172–73 (2018) (label for one-a-day vitamins was
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`misleading because the serving size was two vitamins); Warner-Lambert Co. v. BreathAsure, Inc.,
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`204 F.3d 87, 89, 97 (3rd Cir. 2002) (BreathAsure was a misleading name because there was no
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`scientific foundation for the conclusion that the capsules were effective against bad breath);
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`Novartis v. Consumer Health, Inc. v. Johnson & Jonson-Merck Consumer Pharm. Co., 290 F.3d
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`578, 589 (3rd Cir. 2002) (“Night Time Strength” necessarily implied a false message that the
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`18 Opp’n – ECF No. 46 at 15–16.
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`ORDER – No. 20-cv-04782-LB
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`Case 3:20-cv-04782-LB Document 51 Filed 02/18/21 Page 11 of 11
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`product possessed “a quality that is particularly efficacious for those suffering from heartburn at
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`night”). The claim here is not that the Infants’ product was ineffective or did not perform as
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`advertised. To the contrary, the representations on the label are accurate.
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`A final point is that the products are different. They are marketed in different quantities (two
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`ounces for the infants’ product and four ounces for the children’s product) and with different
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`devices to deliver the doses (a syringe for infants and a cup for children).
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`Often claims involving misleading labels involve questions of fact “not appropriate for
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`decision” on a motion to dismiss. Williams, 552 F.3d at 938; Zeiger v. WellPet LLC, 304 F. Supp.
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`3d 837, 852 (N.D. Cal. 2018). That is not the case here. The labels are accurate. The challenge in
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`the end is to pricing, which is not justiciable. Boris, 35 F. Supp. 3d at 1171–72.
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`CONCLUSION
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`The court grants the motion to dismiss with prejudice. This disposes of ECF No. 42.
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`IT IS SO ORDERED.
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`Dated: February 18, 2021
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`______________________________________
`LAUREL BEELER
`United States Magistrate Judge
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`ORDER – No. 20-cv-04782-LB
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