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Law360 (March 6, 2020, 9:19 PM EST ) Germ-X can't protect against the coronavirus, but the company that makes the popular hand sanitizer has falsely claimed that it can fight off the headline-grabbing pathogen and certain other disease-causing germs, according to a proposed class action in California federal court.
Several Germ-X buyers sued Vi-Jon Inc. on Thursday alleging that the St. Louis-based company touts its hand sanitizer as a way to prevent the flu and other viruses even though the U.S. Food and Drug Administration has warned that there is no evidence to support that claim.
The consumers pointed to advertisements for Germ-X that either explicitly say the sanitizer counteracts coronavirus and other communicable viruses, or imply "this misrepresentation with the use of wording, images, and links."
"There are no 'adequate and well-controlled studies' supporting a representation that alcohol-based hand sanitizers produce a clinical reduction in infection or disease of the flu or other viruses," the consumers said, quoting a recent letter from the FDA. "In fact, scientific studies have shown that alcohol-based hand sanitizers like Germ-X are not effective for the prevention of the flu and other viruses."
The lawsuit says consumers purchased "thousands, if not tens or hundreds of thousands, of units" of hand sanitizer based on the company's alleged lies. It seeks disgorgement of the profits, restitution to consumers, and undetermined damages plus attorney fees.
The suit was brought under California's false advertising law, its unfair competition law, and the state's Consumer Legal Remedies Act. It also alleges negligent and intentional misrepresentation.
The maker of Purell, Gojo Industries Inc., was hit last month with a similar suit in New York federal court.
Consumers seeking to represent a nationwide class claimed the Ohio-based company violated consumer protection laws by marketing its Healthcare Advanced Hand Sanitizer product line as effective in reducing the spread of norovirus, preventing the flu and potentially even battling the Ebola epidemic.
That lawsuit followed two others filed previously in California federal court, and came just weeks after the FDA told Gojo in a letter that based on Purell's claims for its product's performance, the products are "unapproved new drugs" under the Federal Food, Drug and Cosmetic Act.
According to the suit filed Thursday, Germ-X and Purell are "nearly identical."
"Purell contains 70% ethyl alcohol, while Germ-X advertises that it contains 62%," the consumers said. "Therefore, the FDA's warning letter, condemning Purell's misrepresentations that its hand sanitizer is intended for reducing or preventing the flu and other viruses, applies equally to Germ-X."
Vi-Jon did not respond on Friday to a request for comment. An attorney for the customers declined to comment.
The customers are represented by Abbas Kazerounian of Kazerouni Law Group.
Counsel information for Vi-Jon was not immediately available Friday.
The case is Geraldine David et al. v. Vi-Jon Inc., case number 3:20-cv-00424, in the U.S. District Court for the Southern District of California.
--Additional reporting by Kevin Stawicki. Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
