Walmart is among the defendants in a proposed class action filed over the mega-retailer’s alleged sale of “adulterated, misbranded, and unapproved” hand sanitizer products that supposedly contain “dangerously high” levels of benzene, a known human carcinogen.
Filed against Virgin Scent, Inc. (which does business as Artnaturals, Inc.) and Walmart, the 38-page case alleges consumers were unaware until “very recently” that Artnaturals-brand hand sanitizers—as well as those sold under the Lavender & Herbs, TrueWash, Huangjisoo, The Crème Shop, Star Wars Mandalorian, Body Prescriptions, Born Basic, Beauty Concepts, PureLogic, Miami Carry On, Natural Wunderz, Puretize and Clean-Protect-Sanitize brands, among others—contain an unlawful amount of benzene, a substance used in the manufacture of gasoline and other industry chemicals and textiles.
“These Hand Sanitizer Products are not merchantable, and are not of the quality represented by Defendants named herein,” the lawsuit out of Florida federal court reads.
Given the labels of the defendants’ products failed make any mention of the inclusion of the potentially dangerous substance, consumers, the complaint says, remained unaware that the hand sanitizers contained benzene impurities “well beyond the levels that would be permissible in gasoline” until a “third-party pharmacy” tested the products.
The lawsuit alleges Walmart and Artnaturals “sought to profit at consumers’ expense” during the COVID-19 pandemic by selling misbranded hand sanitizers without disclosing the presence of benzene.
“At all times during the period alleged herein Defendants represented and warranted to consumers and others that their Hand Sanitizer Products were comprised of the materials disclosed on the products’ labels, and were merchantable and fit for use,” the complaint states. “Yet, Defendants knowingly, fraudulently, and/or negligently manufactured, labeled, marketed, and/or sold their Hand Sanitizer Products that contained extremely high levels of the carcinogenic substance benzene. Defendants have been unjustly enriched through the sale of these knowingly adulterated and/or misbranded products.”
According to the lawsuit, the U.S. Food and Drug Administration prior to 2020 did not allow any level of benzene or similar ethanol-based impurities in hand sanitizers “because of the public health risk.” In response to increased demand and a restricted supply of the products as the COVID-19 pandemic began to unfold, however, the FDA issued in early March 2020 interim guidance that allowed for trace amounts of benzene, i.e., no more than two parts per million (ppm), to be present in hand sanitizer products, the suit relays.
Importantly, the FDA noted that the benzene limits do not apply to hand sanitizer gel or foam products, and advised firms using ethanol-related substances to test the ethanol to identify the levels of impurities, the case says.
According to the lawsuit, independent pharmacy Valisure submitted to the FDA on March 24, 2021 a citizen petition centered on testing performed on the defendants’ hand sanitizer products. Per the case, Valisure’s testing revealed that the hand sanitizers contain benzene in amounts ranging from 2.2 ppm to 16.1 ppm—higher than the levels permitted under the FDA’s interim guidance, the suit says.
The case argues that Virgin Scent failed to take “reasonable steps” to ensure its products did not contain unacceptable levels of benzene impurities.
“Had Virgin Scent done so, they would have discovered, as Valisure was able to discover, that its products contained benzene at levels in excess of the FDA’s interim limits,” the complaint states.
Likewise, Walmart, the suit alleges, failed to ensure that the products it sourced and sold to consumers met the FDA’s requirements regarding benzene impurity levels. Per the case, the defendants marketed their products as safe to use and in compliance with federal and state law while failing to disclose the dangerously high presence of benzene.
The proposed class action looks to represent anyone in the U.S. or its territories or possessions who, since January 1, 2015, paid for a hand sanitizer product intended for personal or household use that was manufactured, distributed or sold by either of the defendants. A subclass has also been proposed for individuals in Florida who meet the same criteria.
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