On Friday a case was filed in the Eastern District of New York by Monique Bell as a class action against CVS Pharmacy. The case is regarding false advertising of the CVS brand lidocaine patches.
Pain relievers come in a variety of forms and strengths appropriate for different injuries and sources of pain. One common delivery mechanism is a transdermal patch, which releases the pain medication through the porous skin surface, making the patch appropriate for issues that are close to the skin such as muscle soreness. Lidocaine specifically works by blocking the transmission of pain signals from nerve endings in the skin to the spinal cord and brain by blocking the sodium channels which propagate and transmit the signals. There are prescription level patches that most be proscribed by a medical professional, as well as a lower level strength that is available without prescription as an over the counter medication.
The plaintiff alleges that the CVS over-the-counter lidocaine patch makes the promise that it will deliver a lidocaine dose of 4% for up to 12 hours per patch and represent the maximum dosage available in patch format. The plaintiff specifically alleges that the delivery method and adhesive used in these patches is faulty, adhering for much less than 12 hours and therefore making the promise in the advertisement false and impossible to deliver.
The plaintiff notes that the patches peel off in much less time, especially if there is any routine movement. The plaintiff also argues do not provide the maximum amount in consideration of the availability of prescription level patches. Finally, plaintiff notes that the defendants were aware of these shortcomings from many customer complaints noting that “post-it notes had better adhesive”.
The plaintiff is suing for breach of express warranty, breach of merchantability, breach of warranty of fitness, deceptive trade practices, and misrepresentation. The plaintiff is represented by Gucovschi Rozenshteyn, PLLC.
