Does a “30 Day Supply” of eyedrops really mean 30 days? Plaintiff Clark Alexandre alleges that for Alcon Laboratories, Inc.’s Pataday eye drops, the so-called “30 Day Supply” lasted only about twenty days, despite what the label said. 

The packaging for Alcon's Pataday eye drops included the phrase “30 Day Supply,” directing consumers to use one drop per day in each eye. Relying on these words, Plaintiff had the expectation that with daily use of one drop per eye, the product would last for thirty days. However, after using one drop per day in each eye as directed, Plaintiff found that one bottle would only last approximately twenty days as opposed to the thirty days promised on the label. 

Concerned he may have purchased irregular batches, Plaintiff contacted Alcon. The brand sent Plaintiff three free replacement bottles of the eye drops, which still, Plaintiff claimed, continued to last for roughly only twenty days. Plaintiff contends that he relied on the words, descriptions, labeling, claims, and instructions, etc. made by Alcon on the product – including phrases like “Once Daily Relief," “Full 24 Hour,” and of course, “30 Day Supply” –  expecting that with use as directed, the product would last thirty days. Had he known these representations were false and misleading, Plaintiff argued, he would not have bought the product, or would have paid less for it.

It does not appear from the decision that Alcon argued that a reasonable consumer would interpret the thirty-day claim differently than the Plaintiff did; rather, Alcon argued that the Plaintiff impermissibly sought to second-guess the FDA as the FDA approved and required the product’s “30 Day Supply” label, and that the Federal Food, Drug, and Cosmetic Act (FDCA) both expressly and impliedly preempted Plaintiff's claims. Additionally, because the Plaintiff had been sent additional replacement bottles of the product for free, Alcon argued that the Plaintiff failed to allege any injury, and thus lacked standing to bring a claim. To the extent Plaintiff consciously chose to continue purchasing the drops with full notice of the purported misrepresentation, Alcon stated, the claimed injury cannot create standing because it is not traceable to Alcon’s allegedly wrongful conduct. 

According to the Court, Plaintiff did have standing to bring the claim. While Alcon argued that Plaintiff’s continued use of the Product after learning that it lasted less than thirty days would preclude his assertion of any injury, the Court disagreed. The Court said that Plaintiff’s receipt of eyedrop replacement bottles, due to his initial thought that he may have purchased irregular batches, did not equate to Plaintiff continuing to use the product with full knowledge that it did not last for the expected thirty days. The Court also could not consider the “30 Day Supply” statement as FDA-mandated language. 

The Court denied Alcon’s motion to dismiss Plaintiff’s claims, stating that as for Plaintiff's claim for relief for breach of express warranty, "a reasonable consumer could plausibly interpret the ‘30 Day Supply’ statement as a promise by Defendant that the Product, when used as directed, will last for thirty days.”

Clark Alexandre v. Alcon Laboratories Inc., case number 7:22-cv-08859, in the U.S. District Court for the Southern District of New York.