New Jersey and Pennsylvania residents have filed a putative nationwide consumer-fraud class action against a company that, despite a warning from the U.S. Food and Drug Administration (FDA), continues to advertise for sale through a variety of media its WAXVAC® Ear Cleaner as “the safe way to clear your ears” and a product that “gently draws dirt particles and moisture out quickly and safely.” Weinstein v. Lenfest Media Group, LLC, No. 14-1251 (U.S. Dist. Ct., E.D. Pa., filed February 28, 2014). According to the complaint, “the product does not remove dirt particles and moisture as promised.”
The plaintiffs quote FDA’s July 2013 warning letter, which characterized the product as adulterated because the company failed to secure premarket approval for its device and called for the company to cease distributing the product for the uses advertised, and note that the disputed claims continue to appear in the company’s “marketing campaign today.” Alleging unjust enrichment as to the New Jersey and Pennsylvania classes, violation of consumer protection laws of all 50 states and U.S. territories, violation of the Magnuson-Moss Warranty Act, breach of express warranty, implied warranty of merchantability and duty of good faith and fair dealing, the plaintiffs seek a declaration that the product was “negligently designed and/or manufactured,” compensatory damages, equitable relief, restitution, interest, attorney’s fees, and costs.