Kroger Lidocaine Patches Peel Off, Consumers Say, Seeking Class Action Certification

A pair of Illinois consumers are asking a judge to move their proposed class action lawsuit against The Kroger Co. forward, saying they've shown the company sold deceptively marketed adhesive patches containing lidocaine.

Plaintiff Tiffany Agee originally filed the proposed class action lawsuit against The Kroger Co. in Sept. 2022, alleging violations of consumer laws.

On April 12 this year – more than 18 months later – two new plaintiffs Shannon Hunt and Lanette Johnson are asking an Illinois federal judge certifying a class of Illinois consumers who bought deceptively-marketed adhesive patches containing lidocaine sold by The Kroger Co. under the Kroger brand.

According to the lawsuit, Kroger sells patches containing the anesthetic lidocaine. The issue arises from the front label representations, which promise: “Up to 8 Hours of Relief” and “Maximum Strength.” However, the patch “systematically fails to fully adhere to the bodies of users” and therefore cannot deliver “maximum strength” lidocaine, the plaintiffs say.

Judge okays lawsuit to proceed, saying claims likely mislead consumers

In April 2023, the court rejected Kroger’s motion to dismiss the lawsuit and permitted the lawsuit to continue under the Illinois Consumer Fraud and Deceptive Practices Act.

The court said the plaintiffs had plausibly alleged that, when consumers read, ‘Up to 8 Hours of Relief,’ they are likely to believe that the product will remain on the body and provide relief for eight hours.

Instead, the consumers said they found that Kroger’s lidocaine patches regularly peel off the body within a few hours, and often minutes, after being applied, the court said.

The court also found that the plaintiffs had plausibly alleged that “maximum strength” is a misleading claim, because if the patch falls off the body immediately, consumers presumably aren’t getting “maximum strength.”

The plaintiffs are suing for breaches of state consumer laws and seeking certification of the class action, damages, fees, costs and a jury trial.

Kroger not alone in lidocaine patch lawsuits

Kroger is not the only retailer to face class action claims over lidocaine patches. 

In 2023, consumers alleging that CVS Pharmacy deceptively portrayed lidocaine pain-relief products asked a federal judge to approve a $3.8 million settlement with the company. 

In 2022, Rite Aid faced a proposed class action lawsuit alleging its adhesive patches containing lidocaine didn’t deliver “maximum strength” as promised. Walmart and Walgreens have also faced similar lawsuits regarding lidocaine adhesive patch products. 

The plaintiffs and the proposed class in the Kroger case are represented by Sheehan & Associates P.C. 

The Kroger lidocaine patch class action lawsuit is Agee et al v. The Kroger Co., Case No. 1:22-cv-04744  in the U.S. District Court for the Northern District of Illinois.