lidocaine patch, allegedly not "maximum strength," gives Walmart some pain

Rodriguez v. Walmart Inc., 2023 WL 2664134, 22-CV-2991 (JPO) (S.D.N.Y. Mar. 28, 2023)

This is another lidocaine lawsuit finding that plaintiffs stated a claim under New York’s GBL based on allegedly false advertising that Walmart’s patches and creams deliver a “maximum strength” dose of lidocaine and with respect to the patches, function as a “stay-put flexible patch” that “lasts up to 12 hours.”

Plaintiffs alleged that other over-the-counter and prescription lidocaine creams and patches deliver a higher concentration or amount of lidocaine and the lidocaine patches do not contain a higher dose of lidocaine than competing patch products without the “maximum strength” label. In addition, the patches allegedly systematically fail “by large margins” to adhere to users’ bodies for 12 hours; fail to continuously relieve pain during that period because of the premature detachment; and are insufficiently flexible to withstand daily activities such as walking, stretching, and sleeping.

It was plausible that a reasonable consumer would understand “maximum strength” to mean that the patch product contains the maximum amount of lidocaine available on the market for that type of product. Walmart’s arguments that prescription-strength patches are not proper comparators and that plaintiffs used erroneous calculations couldn’t be resolved on a motion to dismiss. And “max strength” was equivalent to “maximum strength.”

Whether “stay-put flexible patch” was non-actionable puffery couldn’t be resolved at this stage. It wasn’t too vague to be actionable; “[w]hether the patch tends to remain adhered to users’ skin and flex along with their movements during a typical period of use is an objective question.” And the phrase wasn’t “so patently hyperbolic that it can be deemed puffery as a matter of law.”

Similarly, “lasts up to 12 hours” was plausibly misleading:

After reading directions that state that a user should use one patch for “up to 12 hours,” a reasonable consumer would indeed plausibly expect to be able to use a single patch for a period approaching 12 hours. Further, Plaintiffs do not allege that 12 hours is a guarantee; rather, they allege that the patches systematically fail to adhere for a time period close to 12 hours.

Plaintiffs also plausibly alleged material omissions by failing to disclose that the patches are “prone to even greater detachment when [consumers] engage in moderate exercise or other regular daily activities.”  Walmart argued that it had no obligation to state the obvious — that is, that the patches could detach when the user is mobile. But “[j]ustifiable reliance by the plaintiff is not an element of [a] statutory claim” under GBL § 349 or § 350.