Wal-Mart Dodges Equate Migraine Relief Class Action Lawsuit

A class action lawsuit accusing Wal-Mart Stores Inc. of tricking consumers into paying twice as much for Equate Migraine Relief over its identical Equate Headache medicine was tossed Wednesday by a federal judge, who ruled that Wal-Mart’s pricing and packaging of the store brand medicine was not misleading.

Plaintiffs alleged in the Equate Migraine Relief class action lawsuit that the over-the-counter drug contained the exact same active ingredients in the same amounts as Wal-Mart’s Equate Headache Relief, yet Wal-Mart charged two to three times more for the migraine medicine. The package for Equate Migraine was also different, despite the allegedly identical ingredients, a tactic used to further deceive consumers, according to the class action lawsuit.

The plaintiffs argued that Wal-Mart’s actions violated California’s False Advertising Law, Consumer Legal Remedies Act and Unfair Competition Law.

U.S. District Judge Audry B. Collins dismissed the Equate Migraine class action lawsuit on April 9, leaving plaintiffs with the option to amend their claims regarding Wal-Mart’s online advertising. Judge Collins pointed out “the gravamen of Plaintiffs’ case is that by charging more for Equate Migraine and using the color red on its packaging, Wal-Mart deceived Plaintiffs into believing Equate Migraine was more effective than the lower-priced, green-packaged Equate ES when, in fact, both medications contain the same active ingredients in the same doses and are therefore pharmacologically identical.”

“However,” stated the judge, “a consumer’s assumptions about a product are not the benchmark for establishing liability under any of the consumer protection statutes Plaintiffs rely on; rather, all of these statutes require some act, statement, or omission by the defendant,” and “Equate Migraine’s price and packaging color do not constitute an act or statement on which to premise liability.”

Regarding the plaintiffs’ claims that Wal-Mart violated California’s false advertising laws and legal remedies act, Judge Collins pointed out “false advertising violations must be premised on some statement or representation by the defendant about the product.”

The judge ruled, “[h]ere, neither the price of Equate Migraine nor the red background of its packaging constitutes a representation or statement about the product: the price is simply the amount at which the merchant offers to sell the product, and the color of the packaging is a color, not a statement about the product,” and “[i]nsofar as the color red on a product’s package communicates anything, its message is necessarily subjective and speculative.” The judge summarizes, “[a] merchant’s liability cannot be premised solely on a consumer’s assumptions about a product based on a product’s price and the color of its packaging.”

Concerning the plaintiffs claims that Wal-Mart violated the covenant of good faith and fair dealing, Judge Collings ruled “Plaintiffs do not contend that Wal-Mart somehow frustrated their ability to enjoy the benefits of their contract (their purchase of Equate Migraine),” and “[r]ather, they complain that Wal-Mart charged them too much.  Such conduct is not actionable as a breach of the implied covenant.”

The plaintiffs are represented by Lester L. Levy, Matthew T. Insley-Pruitt and Michele F. Raphael of Wolf Popper LLP; Benjamin J. Sweet and Edwin J. Kilpela Jr. of Del Sole Cavanaugh Stroyd LLC; Jennifer M. Miller and Jonathan D. Miller of Nye Peabody Stirling Hale & Miller LLP; and Brian D. Penny of Goldman Scarlato Karon & Penny PC.

The Wal-Mart Equate Migraine Relief Class Action Lawsuit is Boris, et al. v. Wal-Mart Stores Inc., et al., Case No. 2:13-cv-07090, in the U.S. District Court for the Central District of California.