What does “maximum strength” mean to a reasonable consumer? That question is central to two recently filed class action lawsuits against Walgreens, in which consumers allege that several pain relief patches were falsely advertised as “maximum strength,” even though they contained less of the active ingredient than competing products. In disputes of this nature, properly designed consumer surveys can play a critical role in evaluating how consumers interpret labeling claims, and whether those claims are misleading.
Class Action Case Facts
Walgreens sells pain relief patches marketed as “maximum strength” that contain 4 percent lidocaine, an active ingredient commonly used to numb nerve endings and relieve localized pain. The plaintiffs alleged that these products are misleadingly labeled because other pain relief patches available on the market contain 5 percent lidocaine.
Consumers filed two lawsuits in federal court in Chicago, asserting claims including breach of warranty, fraud, and false advertising. Does a “maximum strength” label communicate to consumers that the product contains the highest available concentration of lidocaine on the market?
Consumer Survey Use and “Maximum Strength” Claims
Similar claims are currently being filed against other retailers. Depending on the legal theories advanced, consumer survey evidence could be used. When claims turn on consumer perception, including the perceived amount of the active ingredient in “maximum strength,” survey experts could design and conduct a survey to measure how consumers interpret the claim. Particularly, a survey could measure whether consumers understand the claim to mean the highest strength available across all comparable products, or more generally to mean a strong or effective formulation.
Additionally, plaintiffs seeking damages for paying an alleged price premium may employ conjoint analysis. This kind of survey estimates the economic value consumers pay for a “maximum strength” product. Properly designed and executed conjoint surveys measure the relative importance of a product feature in consumers’ purchasing decisions and estimate how much consumers are willing to pay for it.
Survey Evidence in False Advertising Disputes
This litigation is ongoing, and parties may retain litigation survey experts to evaluate these issues, conduct research, and provide expert testimony. Consumer surveys often provide courts with empirical evidence regarding consumer perception and materiality. The Litigation Surveys and Consumer Sciences Group at IMS Legal Strategies designs and executes scientifically rigorous consumer surveys for use in false advertising, consumer fraud, and class action litigation.
If you are involved in a false advertising dispute requiring evidence of how consumers interpret of advertising claims, IMS Legal Strategies offers the methodological expertise and litigation experience necessary to create reliable, defensible survey evidence.
Case References
The Walgreen Class Action Lawsuit is Michael Toporek v. Walgreen Co., Case No. 2:22-cv-02084, in the U.S. District Court Eastern District of New York.
The Walmart Class Action Lawsuit is Naomy Altagracia Gonzalez Rodriguez v. Walmart Inc., Case No. 1:22-cv-02991, in the U.S. District Court Southern District of New York.Lawsuits filed: Apr.11, 2022
