In what will likely be the first of many consumer protection lawsuits involving the Coronavirus (COVID-19), a group of California consumers filed a federal class action complaint alleging Vi-Jon, Inc. falsely advertised, marketed, and sold its Germ-X brand hand sanitizers as being able to prevent viruses, including COVID-19. As the COVID-19 pandemic grows in size and scope, consumers are gravitating to products to provide some degree of security and comfort. In light of the CDC’s recommendations to use hand sanitizer to prevent the spread of the virus, hand sanitizing companies have seen a spike in consumer sales, which has caused a shortage.
As these companies make large-scale profits, the complaint alleges that the plaintiffs were deceived into purchasing hand sanitizer by Germ-X marketing through advertisements, social media, and third-party retail websites. The plaintiffs claim that Germ-X’s misleading claims caused consumers to, within the last four years, purchase “thousands, if not hundreds of thousands” of units of Germ-X’s sanitizer, or pay more than they otherwise would have, and have allowed Vi-Jon, Inc. to “unjustifiably capture market share from its competitors.” The consumers seek to collect disgorgement of profits, restitution, interest, injunctive relief, court costs, and attorneys’ fees.
The suit alleges false advertising (Cal. Bus. & Prof. Section 17500, et seq.), unfair competition (Cal. Bus. & Prof. Section 17200, et seq.) laws, and California’s Legal Remedies Act (Cal. Civil Code Section 1750, et seq.). It also alleges negligent and intentional misrepresentation. The consumers argue that Germ-X’s unsubstantiated claims, unsupported by any scientific evidence to tie the antiseptic quality of the sanitizer to disease reduction or prevention, has misled a vulnerable public, and that Germ-X is “taking advantage of [the] newfound, widespread fear” of COVID-19. The complaint also alleges that the Germ-X website has given the false impression that the government recommends the use of Germ-X to avoid getting sick.
The consumers also point to the similarities between the “nearly identical” Germ-X and Purell sanitizer products, which both use between 60-70 percent ethyl alcohol. The U.S. Food and Drug Administration (FDA) recently warned Purell against misrepresenting its hand sanitizer as being able to prevent viruses, without any adequate and well-controlled studies to support any clinical reduction in infection or disease of the flu or other viruses. The plaintiffs argue that the FDA’s warning letter to Purell applies equally to Germ-X, as Purell’s competitor.
Purell is also facing a class action lawsuit in New York federal court alleging that Purell falsely claimed that its Healthcare Advanced Hand Sanitizer can prevent the flu and potentially even the Ebola virus.
The case is Geraldine David, Susan Lara, and Theresa Haas, Individually and On Behalf of All Others Similarly Situated v. Vi-Jon Inc. d/b/a Germ-X, Case No. 3:20-cv-00424-CAB-AGS, in the U.S. District Court for the Southern District of California.
As certain companies quickly attempt to capitalize on consumer fears and make claims regarding the ability to prevent COVID-19, more lawsuits are likely to flow. Based on the nature of the allegations, some of these claims/suit might trigger a carrier’s duty to defend.