Thompson v. Sanofi-Aventis U.S. LLC

• Court: District Court, N.D. California
• Decided: May 30, 2024
• Docket: 3:23-cv-03073
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KRISTYN THOMPSON, Case No. 23-cv-03073-JD

8 Plaintiff, ORDER RE DISMISSAL v. 9

10 CHATTEM, INC., Defendant. 11

12 13 Plaintiff Kristyn Thompson, a California resident, bought a tube of defendant Chattem 14 Inc.’s “Cortizone-10 Maximum Strength” anti-itch creme as an over-the-counter (OTC) product 15 and without a prescription. Dkt. No. 13 (FAC) ¶ 14. The packaging for the creme stated that it 16 contained 1% hydrocortisone. Id. ¶ 26. Thompson says that she was “misled” and cheated of “the 17 benefit of her bargain” by the “maximum strength” wording because a 3% hydrocortisone creme is 18 available with a prescription. Id. ¶¶ 44, 47. On behalf of herself and putative nationwide and 19 California classes, Thompson alleges multiple claims for consumer fraud under California state 20 law. 21 Chattem asks to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) 22 primarily on the ground that a reasonable consumer would understand that “maximum strength” 23 meant the strongest formulation available in an OTC product without a prescription. Dkt. No. 28. 24 Thompson says it is “premature” to decide in a pleadings motion what a reasonable consumer 25 would understand. Dkt. No. 32 at 5. The FAC is dismissed with leave to amend. 26 The reason for dismissal is straightforward. While it is true that the question of consumer 27 deception may, in some cases, be a factual matter unsuitable for resolution in a motion to dismiss, 1 2019), Thompson still has the initial burden of pleading “factual content that allows the court to 2 || draw the reasonable inference that the defendant is liable for the misconduct alleged,” as informed 3 || by “judicial experience and common sense.” Cannara v. Nemeth, 467 F. Supp. 3d 877, 882 (N.D. 4 || Cal. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)), aff'd, 21 F.4th 1169 (9th Cir. 5 2021); see also Yoshida v. Campbell Soup Co., No. 21-cv-9458-JD, 2022 WL 1819528, at *1 6 || (N.D. Cal. May 27, 2022). 7 The FAC stumbles on this threshold requirement. A reasonable consumer would know 8 that an OTC product she can buy without a visit to the doctor for a prescription is not going to be 9 || the strongest possible formulation of that product. Anyone who has shopped in a typical 10 || pharmacy in California or the United States understands this. The OTC aisles offer products that a 11 consumer can safely self-select because their strength is capped. The powerful drug formulations 12 || are behind the counter and accessible only with a physician’s authorization. Thompson did not 5 13 provide any facts in the FAC that might indicate a reasonable consumer would believe otherwise. 14 || She does not allege that Chattem’s creme has less than the 1% hydrocortisone stated on the 3 15 packaging, or that the maximum strength available in an OTC product is greater than 1%. 16 || Thompson says only that she felt misled because a 3% hydrocortisone formulation is available 3 17 with a prescription. A reasonable consumer would not feel duped because a stronger creme could 18 || be obtained with a prescription. 19 This is enough to warrant dismissal of the FAC. The Court need not address Chattem’s 20 || objection to Article III standing for injunctive relief. Thompson may file an amended complaint 21 consistent with this order by June 17, 2024. A failure to meet this deadline will result in dismissal 22 of the case under Rule 41(b). 23 IT IS SO ORDERED. 24 Dated: May 30, 2024 25 26 JAMES JPONATO 27 United frtates District Judge 28