Walmart “Maximum Strength” Lidocaine Products Class Action

Walmart, Inc. offers pain relief products under its Equate brand, including Equate Maximum Strength Lidocaine Pain Relieving Patch and Equate Maximum Strength Pain Relief Cream. But the complaint for this class action alleges that the products do not in fact offer the maximum strength of lidocaine available in over-the-counter products.

A class and a subclass (or an alternative class) have been proposed for this action:

• The National Class is all persons in the US who bought the products.
• The California Subclass is all persons in California who bought the products.

According to the complaint, consumers buy these kinds of products frequently, for arthritis, backaches, muscle pain, and sprains.

The complaint states, “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.”

According to the complaint, Walmart does sell the “maximum strength” products at a premium, charging $1.16 per Equate patch, while its competitors sell similar patches with the same strength of lidocaine at only around 86 cents per patch.

Page 10 of the complaint shows images of the two products. Each has the words “Maximum Strength” prominently displayed in a bubble on the front label.

However, these “Maximum Strength” products offer 4% lidocaine. The complaint alleges that, “with regard to ‘Patch’ products, similar prescription patches manufactured by at least one of [Walmart’s] competitors contain[] 5% lidocaine; with regard to ‘cream’ products, similar creams manufactured by at least one of [Walmart’s] competitors contain 5% lidocaine and are also available over-the-counter (‘OTC’) as [Walmart’s] Products are.” The complaint alleges that other prescription products also contain higher proportions of lidocaine.

According to the complaint, Walmart’s marketing and advertising campaigns for the products are meant to make customers think that they offer the highest degree of pain relief available. It alleges that customers would not have bought the products, or would not have paid as much for them “had they known the true facts regarding the Products’ ‘Maximum Strength’ representations and omissions.”

The complaint alleges that Walmart’s “multiple and prominent systematic mislabeling of the Products form a pattern of unlawful and unfair business practices that deceives and harms consumers and the public.”

It claims that Walmart makes the “Maximum Strength” representation in a “knowingly false and deceptive” manner, and violates state consumer fraud laws. Other counts include violations of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, and have led to unjust enrichment.

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