LOS ANGELES (Legal Newsline) - Procter & Gamble wants a higher court to change a judge's ruling that allowed a class action lawsuit over its VapoRub products to proceed.
Lawyers claim Vapo markets some products for children, even though they contain the same ingredients as others that do not specify an age group, then charges more for children's products.
Last April, the company moved to dismiss the case, but Los Angeles federal judge Dolly Gee on Dec. 20 allowed some parts of the case to move forward. Notably, she ruled the federal Food, Drug, and Cosmetic Act did not preempt state-law labeling claims.
Gee noted courts have been "heavily split" on the issue. P&G had argued it couldn't be sued under state law when it had complied with federal labeling regulations.
Gee said the FDCA considers drugs misbranded if their labeling is "false or misleading in any particular."
"(Plaintiff Gabriela) Mendoza's claims are all predicated on her belief, based on the products' labeling, that the Children's Products 'were specially formulated or more suitable for children,'" Gee wrote.
"In other words, she seeks to hold P&G liable for, and to force P&G to change, false or misleading labeling practices."
On Jan. 24, P&G asked Gee to certify her order so it could appeal to the U.S. Court of Appeals for the Ninth Circuit now instead of being forced to wait.
"The fact that courts have followed different approaches to the same legal issue - or in this Court's words, the fact that courts are 'heavily split' on the scope of FDCA preemption - demonstrates that the is a substantial ground for difference of opinion as to when the FDCA preempts a state-law requirement," the motion says.
P&G also wants to ask the Ninth Circuit whether Mendoza has standing to pursue claims over products she never purchased.