Ever bought a box of Raisin Bran, only to learn your box has just 12 raisins? And you rightly assumed YOUR box should have had two scoops, just like the advertisement promises. Kellogg’s says “Each box contains approximately the same percentage by weight of raisins and flakes.” OK, so two scoops may be hyperbole. Still, I never thought about joining a class action lawsuit against Kellogg’s.
Which brings me to Charlene Eike v. Allergan, et al. (Shout out to Dr. Joe Horton for bringing this case to my attention.) This case percolated to the Seventh Circuit Appellate Court. What heinous thing did Allergan do?
Actually, it wasn’t just Allergan. It was six pharmaceutical companies that manufacture eye drops for glaucoma.
The claim was that the eye drops were unnecessarily large, in violation of the Illinois Consumer Fraud Act, and other laws because each eye drop exceeds 16 microliters. The class in the class action contended the optimal size of an eye drop for treatment is 16 microliters, no more. Their argument continues that anything larger than 16 microliters is wasteful because additional volume adds no therapeutic value.
So how would damages be calculated, if this absurd argument were accepted as credible?
“The difference between the price per drop of the eye drops at their present size, and the presumably lower price if the drops were smaller, multiplied by the number of drops that have been bought by the members of the class, are the damages the class is seeking.”
Judge Richard Posner, who wrote the opinion “skunking” the plaintiffs, rightly noted that the plaintiffs never argued the price of the current treatment was the result of collusion (which might trigger anti-trust concerns), or misrepresentation. The plaintiffs merely argued that increased volume increases the price consumers have to pay with no justifiable reason.
The plaintiffs also argued that large eye drops have a greater risk of side effects – failing to enumerate those side effects. They also argued some in the class ran out of drops sooner than expected because they had to use more drops per bottle.
The pharmaceutical companies countered that most of the eye drop consists of inactive ingredients and the volume is there to help the drug be effective.
“The smaller the drop, therefore, the weaker its likely therapeutic effect for patients whose eyes could have absorbed a larger drop. In addition, elderly patients, patients with unsteady hands, and patients who already have serious eye problems, often have trouble getting eye drops into their eyes, and the smaller the drop the likelier they are to miss.”
Judge Posner concluded the plaintiffs’ argument distilled to the fact that they just did not like the price. The FDA approved the drops as being safe and efficacious. If the plaintiffs were unhappy with the product they could take it up with the FDA. But, it’s unlikely they will. They do not want the FDA to rescind its approval of a product that actually benefits the plaintiffs.
“[The] agency can’t force a private company to manufacture a product the company doesn’t want to make—all it can do is approve or disapprove drugs that a company does make.”
And the final coup-de grace:
“Even supposing it were demonstrable that a smaller eye drop would be more effective and cheaper than the ones manufactured by the defendants, the class members would have no cause of action. You cannot sue a company and argue only—“it could do better by us”—which is all they are arguing. In fact, such a suit fails at the threshold, because there is no standing to sue. One cannot bring a suit in federal court without pleading that one has been injured in some way (physically, financially—whatever) by the defendant. That’s what’s required for standing. The fact that a seller does not sell the product that you want, or at the price you’d like to pay, is not an actionable injury; it is just a regret or disappointment—which is all we have here, the class having failed to allege “an invasion of a legally protected interest.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).”
And so it goes.
A claim based on Raisin Bran’s advertising would likely have had more merit.