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Law360 (June 7, 2021, 7:40 PM EDT ) A proposed class action filed in Illinois federal court on Saturday alleges that Target has misled consumers with claims that its alcohol-based hand sanitizer is capable of killing "99.99% of germs."
Named plaintiff Mike Ross claims in his lawsuit that while the retail giant markets, labels and sells alcohol-based hand sanitizer under its generic label as being able to kill 99.99% of germs, alcohol-based hand sanitizers are incapable of killing some of the most prevalent viruses, such as the norovirus, which causes more than 58% of foodborne illnesses in the United States.
And there's no scientific study that indicates any alcohol-based hand sanitizer kills 99.99% of germs, he contends.
"Therefore, by claiming to kill 99.9% of germs, reasonable consumers will expect the product is effective against one of the most prevalent viruses, when it is not," Ross said.
The hand sanitizer is also not able to kill other germs like protozoan cysts, bacterial spores, Giardia and Clostridium difficile, which causes diarrhea, according to the complaint.
"Reasonable consumers must and do rely on a company to honestly identify and describe the components, attributes and features of the product, relative to itself and other comparable products or alternatives, such as soap and water," he said. "The value of the product that plaintiff purchased was materially less than its value as represented by defendant. Defendant sold more of the product and at a higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers."
And a fine print disclaimer on the back of the Target hand sanitizer that states it's "effective at eliminating 99.99% of many common harmful germs and bacteria in as little as 15 seconds" doesn't overcome the misleading claims on the front label, Ross argues.
"Even if plaintiff scrutinized the labeling to discover this statement, it still would not tell him that the product is unable to kill the most relevant and prominent germs, such as norovirus, enterococcus and other emerging germs of concern," he said.
Ross is seeking to represent a class of all Illinois residents who purchased the hand sanitizer at any Target within Illinois or ordered it for delivery into Illinois, during the applicable statutes of limitations.
He's accusing Target of breaches of express warranty, implied warranty of merchantability and Magnuson Moss Warranty Act, negligent misrepresentation, fraud, unjust enrichment, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act.
Representatives for the parties did not immediately return requests for comment on Monday.
Hand sanitizers have recently come under increased scrutiny, as Americans have looked to them as a defense against COVID-19.
A similar lawsuit was filed in July against Vi-Jon Inc., alleging the claim that its products can kill 99.99% of germs is false. Vi-Jon's hand sanitizer products are sold under store brand names at CVS, Walmart and Walgreens.
Ross and the proposed class is represented by Spencer Sheehan of Sheehan & Associates PC.
Counsel information for Target Corp. could not be immediately determined on Monday.
The case is Ross et al. v. Target Corp., case number 1:21-cv-03028, in the U.S. District Court for the Northern District of Illinois.
--Additional reporting by Mike Curley. Editing by Regan Estes.
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