In this article, Jenner & Block Associate Alexander M. Smith
explains that several putative class action lawsuits have been filed against Gojo, the maker of Purell hand sanitizer. The basis of the lawsuits come from a warning letter the FDA sent to Gojo concerning the validity of its claims that Purell kills 99.99% of most common germs, including enveloped viruses, in which COVID-19 is categorized. The FDA also asserted that the formulation and labeling for Purell violate section 505(a) of the Federal Food, Drug, and Cosmetic Act.” As Alex observes, the lawsuits have the same basic theory of deception, but they do not allege that hand sanitizer is ineffective at preventing disease; there is little evidence proving that is the case.
“Defendants in these lawsuits should be aware that many state consumer fraud statutes do not authorize private plaintiffs to assert lack-of-substantiation claims,” Alex says. “As one court explained, it “is one thing for plaintiff to say that a certain representation is actually untrue or misleading,” but “another thing ... for a plaintiff to say that a certain representation hasn’t been shown to be true; that case does not pass go.”