Bayer files $12M lawsuit against former supplier over benzene contamination

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Bayer benzene lawsuit overview: 

• Who: Bayer Healthcare LLC filed a lawsuit against Aeropres Corporation. 
• Why: Bayer claims Aeropres, its former chemical supplier, bears responsibility for damages it incurred after the pharma company recalled Lotrimin and Tinactin antifungal spray products in 2021 due to the presence of the cancer-causing chemical benzene. 
• Where: The lawsuit was filed in Illinois federal court. 

Bayer is accusing its former chemical supplier of being liable for almost $12 million in damages it incurred after it was forced to recall two antifungal sprays in 2021 due to claims the products were contaminated with the cancer-causing chemical benzene. 

The pharmaceutical company claims Aeropres Corporation bears responsibility for lost profits, recall costs, its declining market share, and for exposing it to a number of resulting class action lawsuits. 

Bayer argues Aeropres began supplying it with a liquified gas known as Propellant A-31 in 2017 that was used in combination with other chemicals to create its Lotrimin and Tinactin antifungal spray products. 

Aeropres disclosed in August 2021 that the Propellant A-31 it was supplying the company contained benzene, the Bayer lawsuit alleges. 

“In this action, Bayer seeks to require Aeropres to pay for the damages caused by its supply of benzene-contaminated product,” the Bayer lawsuit states. 

Bayer recalls Tinactin, Lotrimin antifungal spray products after benzene disclosure

Bayer claims benzene is classified as a human carcinogen by the United States Department of Health and Human Services, and that it is “not supposed to be included” in Propellant A-31 nor is it an ingredient in Bayer’s Lotrimin and Tinactin products. 

The disclosure ultimately led Bayer to recall certain unexpired lots of its Lotrimin and Tinactin antifungal spray products, which injured the company financially, according to the Bayer lawsuit. 

“Bayer has incurred millions of dollars in losses and additional amounts in litigation expenses that resulted from, and arose out of, Aeropres’ supply of contaminated Propellant A-31,” the Bayer lawsuit states. 

Bayer claims Aeropres is guilty of breach of contract, breach of express and implied warranties, negligence, and strict liability. The company is demanding a jury trial and requesting an award of compensatory and consequential damages. 

One of the aforementioned class action lawsuits was filed against Bayer in November 2021 by a pair of consumers arguing the company misbranded its Lotrimin and Tinactin antifungal spray products, due to the presence of benzene. 

Were you affected by Bayer’s recall of Tinactin and Lotrimin antifungal spray products? Let us know in the comments! 

Bayer is represented by Riley C. Mendoza of Shook Hardy & Bacon LLP, and Michael X. Imbroscio, Benjamin J. Razi, and Maura A. Sokol of Covington & Burling LLP.

The Bayer benzene lawsuit is Bayer Healthcare LLC v. Aeropres Corporation, Case No. 1:23-cv-04391, in the U.S. District Court for the Northern District of Illinois.

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