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Consumers who allege CVS falsely advertises that its hand sanitizer kills 99.9 percent of germs had a win this week when a California federal judge certified their class action lawsuit.
U.S. District Judge David O. Carter certified the claim and said that the case was ideal for class treatment, reports Law360.
Lead Plaintiff Joseph Mier claims that CVS’ product labeling for hand-sanitizer — “kills 99.99 percent of germs” — is misleading to consumers and is negligent misrepresentation, given there are a number of pathogens it cannot kill.
According to the class action lawsuit, many studies have shown alcohol-based hand-sanitizer does not kill many types of germs, such as norovirus, bacterial spores and some parasites like Giardia, and that other studies have shown bacteria are becoming alcohol resistant.
In the certification, Carter rejected CVS’s arguments that Mier’s Class was too broad, and that he hadn’t proved more than 40 people purchased the hand sanitizer based on the advertising.
“Proof that statements were material to the plaintiff purchaser class, and that class members relied on those statements in making purchasing decisions, does not always require individualized evidence for each class member,” the judge said.
According to Mier’s claim, CVS sold more than $7 million worth of the hand sanitizer during the class period, showing there were sufficient people to warrant class treatment.
CVS has tried to get the class action lawsuit thrown out to no avail, and has argued that Mier is an “opportunist” and that no reasonable consumer would expect hand sanitizer to kill 99.99% of all germs, especially as the back of the label clarifies it is referring to common germs, reports Law360.
In the initial claim, Mier’s had a marketing expert testify that a reasonable consumer would rely on the CVS label to determine the potency of its product, and that had it been more clear about its incapability to kill 99.9% of germs, people would be less willing to buy it. He also enlisted a microbial expert, Dr. Philip M. Tierno Jr., who added that many germs would not have been tested by the company.
Mier added that the CVS front label contains an asterisk which leads to a statement on the back in “miniscule font” that clarifies the 99.9% claim relates to only “many common harmful germs and bacteria.”
CVS is no stranger to class action lawsuits. In 2020, it was hit with a class action lawsuit alleging that the pharmacy forces consumers to purchase opioid overdose reversal meds when filling opiate prescriptions. Also in 2020, the pharmacy agreed to a $9.75 million class action settlement regarding allegations it shorted employees training pay.
Have you purchased hand sanitizer that says it kills 99.9 percent of germs? Do you believe the label? Let us know in the comments section!
Mier is represented by Justin F. Marquez, Thiago Coelho, Robert Dart, and Cinela Aziz of Wilshire Law Firm PLC.
CVS is represented by Carol R. Brophy and Melanie Ayerh of Steptoe & Johnson LLP.
The CVS Hand Sanitizer False Advertising Class Action Lawsuit is Mier v. CVS Health, Case No. 8:20-cv-01979, in the U.S. District Court for the Central District of California.
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