United States: A Day Shopping At Walmart And Mensing Preemption

Last Updated: November 19 2016
Article by John Sullivan

Are any of you Walmart shoppers? Would you admit it? This DDL blogger does. Walmart sells everything, and at prices too good to pass up: HDTVs, electronics, car stuff, refurbished Titleist golf balls so cheap you almost don't mind losing them in the woods.

And, yes, we know there's a downside. Walmart stores are huge. You get lost. It's loud. Its aisles are crowded. The cashier section in the front is busy like midtown traffic. You always screw up the self-serve check-out and have to wait for help. The store seems to ring and buzz like a casino. The parking lot is the same. There seem to be hundreds of thousands of cars. Available parking spots are few and never near the building. Cars seem like predators stalking the lot, searching, turning, honking, never signaling. Just leaving the store and stepping off the curb is nerve-wracking.

But what if you found a way around all that? What if your trip to Walmart was quiet, with plentiful parking spaces close to the building, the smell of flowers and a plants surrounding you, quiet aisles, a single, friendly cashier with a smile and no lines, and a short walk back to your car in a serene, empty parking lot? Well, that's what this blogger experiences. Every time.

Yet, the Walmart we visit is no different from yours. It's huge and there's a busy parking lot. And so, the first thing to do, is never use that lot. Never. Just across one of the internal mall streets, there's a different parking lot. It's for smaller businesses, like cellphone and vitamin stores, in a small stand-alone building. That lot always has plenty of spaces. Always. You then have a short, 100-foot walk via a cross-walk to Walmart. No one else seems to have cracked this code. Perfect. When you get to Walmart, you're standing in front of its garden center, which sits quietly on the far right side of the building. That's your entry point. Always. Don't go anywhere near the front entrance. Never. Instead, just grab a cart if you need one, and stroll into the garden center. It's calm. It smells nice, plants and flowers and other gardeny things. There's one cashier, just one. He's friendly, relaxed, and not busy. "Welcome to Walmart." Smile, and say "hi" back. Then turn left and walk through the large doorway that connects the garden center to Walmart proper. From there, in the distance, you can see it all. Everything you missed by not going in the front entrance—the busy aisles, the people, the large, loud cashier area, the hugeness. See it, but don't ever go near it. Instead, turn right and walk down the aisle just on the other side of the wall from the garden center. There's almost no one there. Who knows what's even being sold in this aisle? Doesn't matter. It's quiet. Stroll to the back of the store. And, voila, there before you is the automotive section, the sporting goods section and, just a few feet to your left, the electronics section. Sweet. Seconds ago, you left your car in a quiet lot, saw three people, and now you're in the electronics section. So get what you want, put it in your cart, and go. Walk back the way you came, down the very same quiet aisle. Go nowhere near the front of the store. Don't even think about using the cashiers up front. Just stay under the radar and quietly, sanely head back to your new friend, the garden center cashier. Yes, the garden center cashier will ring up your HDTV. He'll ring up your can of Turtle Wax. Every time. Once again, enjoy the smell of the garden. Smile at the—at most—one other person in line, likely buying a plant. Ask the cashier whether those birds are often in the rafters tweeting. Discuss the weather. Relax. Once you pay, say goodbye and casually walk out the garden center door through which you entered, look to your right at the teeming mass of blech that you never stepped into, and then turn left and walk the 100-feet across the crosswalk to your lonely car. Place your wildly cheap goods in the trunk, take a seat in the car, turn on the radio, and glide out of the empty parking lot. It was like a trip to the spa—except you get to leave with an HDTV that cost twelve cents.

We've never bought OTC medication at Walmart, but that's the subject of Nelson v. Wal-Mart Stores, Inc., 2014 WL 12461056 (N.D. Fla. Mar. 26, 2014), an older case that just recently made its way onto Westlaw. Nelson is a putative class action in which the named plaintiff claimed that Walmart engaged in deceptive sales practices related to two generic OTC pain relievers—Equate Extra Strength Headache Relief and Equate Migraine Relief—because the price for the Migraine medication was greater than the price of the Headache medication, even though their active ingredients were the same. Walmart moved to dismiss, and the court's decision holds some interest for us because it involved Mensing.

There were essentially two aspects to plaintiff's claims. One, Walmart priced the Migraine medication higher even though its active ingredients were the same as the lower-priced Headache medication. True, but that does not make a legal claim:

To the extent that Mr. Nelson's claims turn on the proposition that it is inherently deceptive to sell equivalent products for different prices, he is wrong. Walmart's shelves, like the shelves of any grocer or pharmacy, are full of products whose comparative pricing does not correspond perfectly to value.

Id. at *1. Two, plaintiff complained that Walmart labeled these products differently, one as Migraine medication and the other a Headache medication, so that it could deceive customers into paying a higher price for the Migraine medication. This is where Mensing comes in. These medications were generics of two Excedrin products that the FDA had approved for different indications, one for migraine and the other for headaches, despite their active ingredients being the same. And so the generic products may, and indeed must, have the same labeling, including labeling one as migraine medication if the product was being sold for that purpose:

[T]he Food and Drug Administration has approved two Excedrin name-brand products with the same ingredients but with different labeling: one allowing reference to treatment of migraines, the other not. As the seller of generic equivalents, Walmart is not free to change the labeling. See, e.g., PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011). Federal law preempts any state-law claim that relies on an assertion that the required labeling was improper or that, as so labeled, a drug should not have been sold at all. See Mutual Pharm. Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013).

This means that, as a matter of federal law, Walmart is entitled to sell generic equivalents of each Excedrin product, and Walmart can properly label only one for treatment of migraines. Mr. Nelson cannot recover from Walmart based on this difference in the labeling of these products. And for this purpose labeling includes the name on the box-whether the name includes the word "migraine."

Id. at *2.

With that, and also noting that each label identified the ingredients and their amounts (revealing that they were the same), the Court dismissed plaintiff's claims based on pricing and labeling of the products sold in the store:

In short, there is nothing deceptive about Walmart's sale of these products in its stores, especially taking into account that Walmart is entitled to sell the two identical products and must do so in boxes bearing the two different titles. This order thus dismisses Mr. Nelson's claims to the extent they are based on sales of these products in Walmart's stores.

Id. The court did allow plaintiffs to go forward with their claims regarding internet sales, as plaintiff's alleged that the ingredient disclosures were different on-line.

But for our purposes, this was a nice application of Mensing preemption in a class action setting. It's also the first time we've ever heard someone complain that Walmart's pricing was too high. Maybe the named plaintiff just had a bad shopping experience at Walmart. If only he had entered through the garden center . . . .

This article is presented for informational purposes only and is not intended to constitute legal advice.

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