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.

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Photo of Andrew Leff Andrew Leff

Andrew Leff represents clients in complex, high stakes litigation in state and federal courts, and in ADR proceedings. With a focus on complex commercial litigation and class action defense, Andrew has represented a diverse range of clients including fintech companies, electric utilities, food…

Andrew Leff represents clients in complex, high stakes litigation in state and federal courts, and in ADR proceedings. With a focus on complex commercial litigation and class action defense, Andrew has represented a diverse range of clients including fintech companies, electric utilities, food and beverage manufacturers, pharmaceuticals companies, and trade organizations.

Andrew has experience representing clients at all stages of litigation, from case inception through trial and appeal. He regularly leads briefing efforts (including motions to dismiss and summary judgment) as well as complex discovery processes. Andrew was also a key associate on a trial team that won total victory against the U.S. Government, as documented in The New York Times, Law360, and elsewhere. Andrew participated at every level of the pre-trial and trial phases, including a deposition of a key Government witness.

Andrew also maintains an active pro bono practice, representing (among others) disabled veterans appealing denial of the VA benefits to which they are entitled, and jail inmates seeking constitutional conditions of confinement regarding COVID-19 precautions.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable…

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable terms.

On behalf of a range of clients in the food, beverage, and consumer packaged goods industries, Cort has navigated pre-complaint disputes and defended multiple class actions implicating deceptive and false advertising practices under California’s UCL, FAL, and CLRA, and other states’ false advertising and unfair competition laws. Cort also has a depth of experience with competition matters, having represented clients in civil class action litigation, non-public governmental investigations of both the civil and criminal variety, and internal investigations. He has had a lead role in cases and investigations implicating the high tech industry, alleged “no-poach” agreements, and price-fixing and similar cartel conduct. He is also a leader in the antitrust bar and the recent chair of the Antitrust Section of the Bar Association of San Francisco.

Cort is a co-chair of Covington’s LGBT+ Affinity Group and is deeply involved in the firm’s efforts to recruit, mentor, and promote diverse attorneys, including LGBT+ attorneys.

Prior to joining Covington, Cort was a national political consultant who specialized in polling and focus group research. He leverages this research background in his litigation practice, particularly in defending consumer cases.