False advertising lawsuits challenging lidocaine products that are represented to be “maximum strength” have now survived motions to dismiss in several instances.  Most recently, in Gonzalez Rodriguez v. Walmart, Inc., the plaintiffs brought a putative class action alleging that Walmart’s private label Equate-brand lidocaine patches and creams are falsely labeled as “maximum strength” or “max strength.”  The three challenged products are labeled as 4% lidocaine, and allegedly contain 360 milligrams of lidocaine.  The plaintiffs allege that certain prescription-strength patches deliver up to a 5% dose of lidocaine, and other over-the-counter patches deliver 560 milligrams of lidocaine—200 milligrams more than Walmart’s products.  The Southern District of New York concluded that plaintiffs had adequately pled claims under New York’s consumer protection statutes (GBL §§ 349 and 350), reasoning that “it is 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.”  Gonzalez Rodriguez v. Walmart, Inc., 2023 WL 2664134, at *4 (S.D.N.Y. Mar. 28, 2023).  Though Walmart argued that (1) prescription-strength patches are not proper comparators and (2) the plaintiffs used erroneous calculations regarding the amount of lidocaine in comparator products, the court rejected these arguments as “fact-intensive disputes [] not appropriate for resolution at the motion-to-dismiss stage.”

The court’s disposition of this motion accorded with the same court’s handling of a similar suit last year in which it denied a motion to dismiss a similar claim involving Walgreens’s “maximum strength” lidocaine products.  See Stevens v. Walgreen Co., 2022 WL 3681279 (S.D.N.Y. Aug. 24, 2022).  In addition, federal courts in Illinois (Acosta-Aguayo v. Walgreen Co., 2023 WL 2333300 (N.D. Ill. Mar. 2, 2023)) and California (Ary v. Target Corp., 2023 WL 2622142 (N.D. Cal. Mar. 23, 2023)) have recently denied motions to dismiss where the plaintiff alleged that the defendant’s “maximum strength” lidocaine products did not contain the most lidocaine of any comparable product.

With these decisions piling up, other manufacturers of lidocaine products represented as “maximum strength”—or, indeed, any product including such a representation—would do well to confirm the accuracy of the representation.