The lawsuit detailed on this page was dismissed after a judge ruled that Walgreens must abide by FDA-mandated labeling regulations for generic drugs.
U.S. Magistrate Judge Sallie Kim noted in a September 23 order that because the Walgreens hair regrowth products are generic versions of Rogaine, federal regulations require that their labels be identical to the FDA-approved brand name drug. Thus, the labels must “exactly mirror” Rogaine labels in order for the product to qualify as an approved generic drug, the order states.
As such, federal law preempts the plaintiff’s claims that Walgreens must change its labels in order to comply with California state laws, Judge Kim found.
“Where simultaneous compliance with federal and state law is impossible, federal law reigns supreme, regardless of the nature of the state statue [sic] at issue,” the order states.
The judge further ruled that the plaintiff has failed to state a claim under California’s Unruh Civil Rights Act as that law does not apply to consumer goods.
Walgreens has wrongfully imposed in California a discriminatory “pink tax” on the women’s version of certain hair regrowth treatment products, a proposed class action alleges.
The 24-page complaint alleges defendants Walgreens Boots Alliance and subsidiary Walgreen Co. have charged the so-called “pink tax” despite the fact that the product—Walgreens Minoxidil Topical Aerosol 5% (Foam), Hair Regrowth Treatment for Women—is “functionally identical” to its men’s counterpart. The suit argues that this form of gender-based pricing discrimination is an “inequitable and unfair practice” that disproportionately affects women, who the lawsuit says have paid an inflation-adjusted estimate of $2,381 more per year in California for products geared specifically toward women.
“Gender discrimination in product pricing is only justified when consumer products are specially formulated for a specific gender, and the men’s and women’s versions of the products are not functionally equivalent,” the lawsuit in California’s Northern District Court contends, noting Walgreens charges approximately 1.5 times more per ounce for the women’s-branded hair regrowth product.
According to the lawsuit, the active ingredient in the Walgreens women’s and men’s hair regrowth products, minoxidil, is an FDA-approved over-the-counter topical medication for androgenetic alopecia that’s marketed and sold to both women and men. Per the case, minoxidil stimulates hair growth and increases the density and thickness of hair. The product comes in liquid or foam in two strengths, two percent and five percent, the suit says.
The complaint, citing a study titled “Association Between Gender and Drug Cost for Over-the-Counter Minoxidil,” says women pay on average 40 percent more than men for minoxidil foams for hair loss treatment.
The suit alleges Walgreens’ advertisements, marketing and labeling of its women’s and men’s minoxidil hair regrowth products are “misleading, untrue, and likely to deceive reasonable consumers” in that the items’ packaging is designed to give the impression that the women’s version is “unique or specifically formulated” as appropriate for women. According to the case, the packaging of Walgreens’ women’s product does not state that it contains the same formulation as compared to its men’s counterpart, and the product is positioned by the defendants alongside brand-name hair regrowth treatments, such as Women’s Rogaine, exclusively formulated for women.
In addition to its false advertising allegations, the lawsuit claims Walgreens’ apparent “pink tax” amounts to a violation of California’s Unruh Civil Rights Act, which the complaint says prohibits businesses from participating in pricing discrimination toward consumers based on sex or gender.
“These unfair and unlawful business practices result in women paying substantially higher prices for goods than those made available to men,” the case says.
Despite the distinct packaging of the women’s and men’s minoxidil products, there is no difference in the foam’s formulation, the complaint says.
The lawsuit looks to represent all persons who bought Walgreens Minoxidil Topical Aerosol 5% Foam, Hair Regrowth Treatment for Women in California.
Get class action lawsuit news sent to your inbox – sign up for ClassAction.org’s free weekly newsletter here.