Walmart Class Action Lawsuit Says Customers Pay More For Generic Infant Tylenol

Walmart has been hit with a class action lawsuit by a consumer who claims the retailer markets and sells infant pain relievers at a higher price than children’s pain relievers even though they contain the same amount of acetaminophen.

Plaintiff Joanna Ceballos-Birney says Walmart distributes its own brand of pain reliever and fever reducer for children and infants under the brand Equate. She states Walmart’s advertisements, marketing representations and placement of the products are misleading, untrue and likely to deceive reasonable consumers.

The plaintiff, a San Diego resident, purchased the pain relievers for her three children, ages 2, 7 and 9. She says she purchased the infant pain relievers because she believed the products were specifically formulated and designed for infants based on the marketing and labeling of the products.

Ceballos-Birney says if she had known the Walmart infant pain reliever was nothing more than the children’s products, she would not have purchased the infant products or paid a premium price for them.

The Walmart class action lawsuit claims she purchased and paid more for the infant products than she would have had she known the truth about the infant pain relievers. She says she was injured in fact and lost money as a result of Walmart’s deceptive conduct.

Ceballos-Birney maintains that she cannot purchase the infant products in the future because she remains unsure whether the labeling of the pain relievers are truthful and non-misleading. However, she says she would purchase the products in the immediate future and would be willing to pay a premium price if they were, in fact, formulated for infants.

The Walmart class action lawsuit claims Walmart purposefully packages infant products with distinctive and colored lettering of the word “infant’s” on the product’s front label, while packaging the children’s pain reliever with distinctive colored lettering of the word “children’s” on the front label. 

“Accordingly, Defendant distributes, markets, and sells the Products in a manner which deceives reasonable consumers into thinking that infants cannot safely take Children’s Products,” the Walmart class action lawsuit states.

Also, despite the fact that the pain relievers contain the same amount of acetaminophen in the same dosage amounts, Walmart markets and sells the infant products to consumers at a substantially higher price than the children’s pain relievers, according to Ceballos-Birney.

She claims that, in stores, the Walmart infant pain relievers cost approximately three times more per ounce than the children’s product for the same amount of medicine.

“No reasonable consumer would pay approximately three times more for Infant’s Products, as compared to Children’s Products, unless he or she was deceived into thinking that infants cannot safely take Children’s Products,” the Walmart class action lawsuit goes on to say.

According to the Walmart class action lawsuit, the defendant has been engaging in the unfair, unlawful, deceptive and fraudulent practice of manufacturing, marketing and selling the same product as two unique medicines, such that parents and caregivers mistakenly believe that they cannot purchase the significantly cheaper children’s product for an infant.

“Defendant deceives consumers so that they will buy the deceptively labeled Infant’s Products for infants, which cost significantly more than Children’s Products, even though the Products contain the same exact amount of acetaminophen in the same dosage amounts,” Ceballos-Birney says.

Despite the fact that the two pain relievers contain the same amount of acetaminophen in the same dosage amounts, Walmart markets and sells infant’s products at a substantially higher cost than the children’s products, the Walmart class action lawsuit states.

According to the plaintiff, Walmart knows consumers are typically more cautious about the medicine they give infants, especially when they are giving their infant a product that has caused accidental deaths in the past. 

Ceballos-Birney states that no reasonable consumer would be willing to pay more money — and certainly not three times as much per ounce — for infant’s products unless he or she had good reason to believe that infant’s pain relievers were different than or superior than the children’s products.

“Defendant made numerous misrepresentations on the advertising, in store labeling, marketing, and pricing of Infant’s Products that were designed to, and, in fact, did, mislead Plaintiff and Class members into purchasing Infant’s Products,” the Walmart class action lawsuit says.

Common questions of law and fact in the Walmart class action lawsuit include: 1) whether the infant’s products and children’s products are the same; 2) whether the defendant knew or should have known that infant’s products and children’s products are the same; 3) whether the defendants misrepresentations and omissions were material to reasonable consumers; 4) whether Walmart’s labeling, marketing and the sale of infant’s products constitute false advertising; and 5) whether the defendant’s conduct injured the plaintiff that in fact she was damaged.

The plaintiff seeks injunctive relief, the maximum statutory damages allowed by law, monetary damages, attorneys’ fees and court costs, pre- and post-judgment interest and other relief the Court deems proper.

Did you purchase Walmart’s pain reliever for infants thinking it contains a different amount of acetaminophen than the children’s pain reliever? Leave a message in the comments section below.

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

The Walmart Infant’s Pain Reliever Class Action Lawsuit is Joanna Ceballos-Birney v. Walmart Inc., Case No. 3:20-cv-01224, in the U.S. District Court for the Southern District of California.

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