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IStock_000009666174MediumBy Sandra Hanian

Last month, Judge Sterling Johnson, Jr. of the Eastern District of New York dismissed a putative class action alleging that Pfizer misled consumers regarding the amount of Advil they were purchasing because of the size of Advil’s packaging. The plaintiffs alleged that the size of the product packaging led them to believe that the packages would be filled to capacity with pills, but they actually contained “excessive empty space” or non-functional slack-fill in violation of New York, Florida, and California state consumer protection laws. The plaintiffs alleged that they did not rely on the labels specifying the number of pills in each product at issue when making their purchasing decisions. 

The court rejected the plaintiffs’ claims, holding that, as a matter of law, it was not possible that Pfizer’s packaging could mislead a reasonable consumer when it clearly displayed the total pill-count on the label.  In so holding, the court noted that “[i]t defies logic to accept that the reasonable consumer would not rely upon the stated pill count” and that the plaintiffs did not and could not show that they did not receive the total number of pills that were listed on the packages’ labels.  Moreover, “the suggestion that [packaging] laws should cover [the plaintiffs’] failure to read an unambiguous tablet-count does not pass the proverbial laugh test.”

Fermin v. Pfizer Inc., No. 15-2133, 2016 WL 6208291 (E.D.N.Y. Oct. 18, 2016).