Kroger Class Action Lawsuit Says Shoppers Overcharged For Infant Medicine

A California mother has filed a class action lawsuit against Kroger Co. for its labeling of infant pain reliever, and Ralph’s for selling the product.

She asserts that the product, Kroger Label Infants’ Pain & Fever Acetaminophen, is really no different than Kroger’s Children’s Pain and Fever Acetaminophen. However, the company markets them as different medications and charges more for the infant version.

Plaintiff R.H. says that for four years, she purchased “Kroger” label infant pain reliever at Ralph’s, believing it to be specially formulated for infants. She says she purchased the product with the safety of her two young children in mind.

Years after her first purchase, she recounts that she discovered the infant pain reliever contained the same formula as the company’s children’s pain reliever, despite costing three times more. In her eyes, the infant product was labeled differently to entice parents into paying more for a product.

The Kroger pain reliever class action lawsuit states that the plaintiff specifically selected the Infants’ Pain & Fever Acetaminophen over the Children’s Pain and Fever Acetaminophen because she believed the former was specifically formulated for infants.

However, this is not the case, asserts the Kroger pain reliever false ad class action lawsuit. Allegedly, the infants’ version of the product contains the same amount of acetaminophen as the children’s product. Though the products are effectively the same, both in-store and online, Ralphs sells the infants’ products at around three times the price of the children’s price.

R.H. notes the pain relievers in question are made with acetaminophen. She explains that although the drug is an effective pain reliever, it can cause serious damage and may even be fatal if taken in doses that are too large. These potential risks led her and other parents to be extremely careful when purchasing acetaminophen products for children and infants, she says.

She provides background for this fear, noting that the United States Food and Drug Administration required drug manufacturers to make the dosage the same for infant and children’s acetaminophen, after confusion in appropriate dosage led to multiple instances of acetaminophen poisoning. Now, the products are required to contain the same dose, but contain different delivery methods — a syringe in the infants’ product and a cup in the children’s product.

Allegedly, both Kroger and Ralph’s are well aware of parents’ fear and these regulations. According to the plaintiff, the company uses these circumstances to extract the maximum amount of profit from them possible. Allegedly, the companies effectively represented to parents that infants cannot safely take the children’s products. She states the companies represented the infants’ acetaminophen in such a different way, that it looks like a different medication than the children’s product.

The Kroger pain reliever class action lawsuit states the implication that the two products are different is enhanced by multiple elements in the products’ packaging.

R.H. notes the infant product bears the phrase “compare to the active ingredient of Infants’ Tylenol Oral Suspension,” while the children’s product bears the phrase, “Compare to the active ingredient of the Children’s Tylenol Oral Suspension.”

The plaintiff says this is an attempt by Kroger to “deceive reasonable consumers into believing that the active ingredient in Infant’s Tylenol is different than the active ingredient in Children’s Tylenol.”

The class action lawsuit then notes the infants’ pain and fever product is labeled as safe for children “age 2-3 years” while the children’s pain and fever product is labeled as safe for children “ages 2 to 11 years.”

However, according to the pain relief class action lawsuit, no reasonable consumer would consider a two- or three-year-old child an infant.

According to R.H., this age range is further evidence that the products are misleading to consumers aiming to make the best choice for their children.

The Ralphs class action lawsuit argues that this tactic financially injures consumers, because no reasonable consumer would pay three times more for a product that is equal to a less expensive one.

The plaintiff seeks damages on behalf of herself and similarly affected consumers, both in the form of compensatory relief and inductive relief. She says she would like to be able to purchase the product in the future, but would not be able to trust that the product would be adequately represented, without the court’s intervention.

Have you been misled by a product’s labeling? Share your experience in the comments section below.

R.H. is represented by Daniel L. Washaw and Naveed Abaie of Pearson, Simon, & Warshaw LLP; Melissa S. Weiner and Joseph C. Bourne of Pearson, Simon & Warshaw LLP; Andrew J. Shamis of Shamis & Gentile PA; Scott Edelsberg of Edelsberg Law PA; and by Rachel Dapeer of Dapeer Law PA.

The Kroger, Ralph’s Infant Pain Reliever Class Action Lawsuit is R.H. v. The Kroger Co., et al., Case No. 8:20-cv-01253, in the U.S. District Court for the Central District of California.

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