Target Up & Up “Maximum Strength” 8-Hour Lidocaine Patches Class Action

Target Corporation sells lidocaine pain-relief patches under its Up & Up brand, in stores and online. But the complaint for this class action alleges Target misleads customers with its claims about the patches, by claiming they provide “pain relief” with a “maximum strength” dose of lidocaine for “up to 8 hours.” The complaint alleges that the patches fall off the body within a few hours, or even minutes, of being applied, and that the patches do not deliver the maximum amount of lidocaine available in patch form.

The class for this action is all persons who bought Target’s Up & Up lidocaine pain-relief patches. A California Subclass has been defined for those who bought the patches in California.

Page 6 of the complaint displays an image of the product box, showing the claims that the product provides “pain relief” using a “maximum strength” amount of lidocaine, for “up to 8 hours.” The plaintiff in this case, Shejuana Ary, says she chose the patches over less-expensive ones because of these claims.

The complaint alleges that Ary applied the patches as instructed on the package, but that the patches peeled off when she engaged in normal activities, such as walking, stretching, and sleeping: “Having given the Lidocaine Patches the benefit of the doubt, [Ary] realized that the Lidocaine Patches consistently failed to provide pain relief anywhere close to the represented 8 hours.”

According to the complaint, the “maximum strength” representations are also problematic. The complaint notes, “In 1983, the FDA published a Tentative Final Monography for External Analgesic Drug Products for Over-the-Counter Human Use … (‘the TFM’), which provides permissible language for the labeling, ingredients, and doses for over-the-counter external analgesic products…” However, the TFM did not consider lidocaine patches. The complaint alleges the FDA proposed an amendment in 2003, but never finalized it.

According to the complaint, the FDA did not approve a “maximum strength” claim, because it might be confusing and misleading, and the complaint claims “in fact, there are superior prescription lidocaine patches in the market that deliver a higher amount of lidocaine: including the previously mentioned 5% and 1.8% prescription-strength lidocaine patches.”

The complaint reproduces reviews from Target’s own website, most of which give the product low ratings, and many of which complaint that the patches do not stick well to their bodies. It claims that Target has therefore known that the products do not do what it says they do.

The complaint alleges, “In complete disregard of the wealth of information to the contrary … [Target] continues to misrepresent that its Lidocaine Patches can provide pain relief to its consumers’ bodies for up to 8 hours when, in fact, they fail to do so by large margins given their poor adhesion technology.”

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Item Does Not Do What It Is Advertised to Do, Maximum Strength Claims