Rite Aid Corporation “Maximum Strength” Lidocaine Patches Class Action

Rite Aid Corporation operates a chain of drugstores that offer, among other things, a product called Rite Aid Maximum Strength Pain Relief Lidocaine Patch. But the complaint for this class action alleges that the patches are not in fact maximum strength, because they are only made with 4% lidocaine, while stronger products (for example, with 5% lidocaine) exist.

The National Class for this action is all persons living in the US who, during the maximum period permitted by law, bought the products primarily for personal, family, or household purposes and not for resale. A California Subclass has also been defined, for those in the above class who live in California.

Rite Aid sells the products at issue in all fifty states in its brick-and-mortar stores and through its website. Lidocaine, the active ingredient in the patches, is a local anesthetic. The complaint quotes the Mayo Clinic’s website as saying, “This medicine prevents pain by blocking the signals at the nerve endings in the skin.”

The products are intended to relieve body soreness and pain associated with such things as arthritis, backache, muscle strains, sprains, or bruises. The patches come in five-count and six-count packages. Images of their front labels appear on pages 5 and 6 of the complaint. In each case, the most eye-catching part of the labeling is the designation “Maximum Strength,” which is yellow centered against a gray background for one package and red centered against a yellow background for the other.

The complaint alleges, “When consumers purchase pain-relieving products the strength of the dose is an important purchasing consideration. In fact, consumers willingly pay a premium for pain-relieving products that have strong doses.” The complaint asserts that Rite Aid takes advantage of this desire for stronger doses of pain relief with its “Maximum Strength” claim, so that consumers “reasonably believe that they are purchasing a Lidocaine product which is at maximum strength, i.e., the highest dosage they can buy.”

But the complaint alleges this claim is “false and misleading” and “deceives trusting reasonable consumers” into thinking that they are in fact receiving the maximum strength of lidocaine available to consumers. “Indeed,” the complaint claims, Rite Aid’s “over the counter Products contain only 4% lidocaine while competing prescription lidocaine products contain 5% lidocaine.” The complaint points out that it is therefore possible for consumers to buy products with a stronger dose of lidocaine in the market.

The counts include violations of California’s Unfair Competition Law, its False Advertising Law, and its Consumer Legal Remedies Act, and also fraud and unjust enrichment.

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Maximum Strength Claims