By Mike Curley

Law360 (October 21, 2020, 5:33 PM EDT) -- CVS Health wants to end a federal suit alleging the company misleadingly states its store-brand hand sanitizers kill 99.99% of all germs, calling the customer pushing the case an "opportunist" who hasn't even said he used the product, let alone that he was injured by the so-called false advertisement.

In a motion to dismiss the case filed Tuesday, the drugstore chain urged the California federal court to throw out claims by Joseph Mier, saying no reasonable consumer would expect the hand sanitizer to kill 99.99% of all germs known to mankind, especially as the back of the label clarifies that it works on "99.99% of many common harmful germs & bacteria."

"Plaintiff Joseph Mier … is not a reasonable consumer but rather an opportunist who seeks to capitalize on public concern over viruses and other pathogens," CVS said in its motion. "He is not injured; no reasonable consumer would be deceived by the conduct he alleges, and his case should be dismissed with prejudice."

According to court documents, Mier first filed his suit in state court in May, and CVS removed it to federal court last week. Mier alleges that the labeling on CVS store-brand hand sanitizers is misleading as it claims the product is effective against 99.99% of germs, but that there are a number of pathogens it cannot destroy.

In Tuesday's motion, however, CVS argued that the product is a sanitizer meant to clean the hands, while many of the pathogens and bacteria Mier cites are borne by food or found in intestinal tracts, not on the hands.

In Tuesday's motion, however, CVS argued that the product is a sanitizer meant to target bacteria commonly found on the hands while many of the pathogens and bacteria Mier cites are borne by food, found in the intestinal tract or are obscure, making it unlikely a reasonable consumer would get the product to combat them.

"Did he expect a hand sanitizer to protect him from norovirus?" CVS asked the court. "Bacterial spores? Enterococcus faecium? Protozoan cysts? Invasive parasites? Did he seek out the products in an effort to protect himself from those specific germs?"

The company further argued that Mier hasn't alleged that he contracted any diseases or illnesses as a result of relying on the product and that he failed to show that the "99.99%" claim is the only reason he bought the sanitizer, as opposed to all the information and recommendations about hand sanitizers emerging in the months since COVID-19 hit the U.S.

Without any concrete injury, Mier's claims that he overpaid for the hand sanitizers can't stand, CVS said, adding the complaint also fails to allege what false statements CVS made and how they were false, given that the "99.99%" claim has an asterisk directing buyers to read the rest of the label.

Consumers concerned about the effectiveness of such a product would read the full label, the retailer said, or alternately could have looked up details about the product on their smartphone.

As Mier's claims all revolve around the alleged false advertising, CVS argued they should all be dismissed, saying the primary thesis of the complaint fails on its face.

In addition, CVS argued, labeling for hand sanitizers is regulated by the U.S. Food and Drug Administration under the Food, Drug and Cosmetic Act, and the labels on CVS' products comply with those guidelines, so Mier's claims are preempted.

An attorney for Mier, Thiago Coelho of Wilshire Law Firm PLC, told Law360 that his firm is representing plaintiffs in two other suits over Kroger and Walgreen Co. store-brand hand sanitizers, saying the firm believes strongly in the cases.

"We think that we have a very strong shot at winning them," he said. "It shouldn't surprise you that these companies haven't done any research to say that they actually do kill 99.99% of germs."

Representatives for CVS could not immediately be reached for comment Wednesday.

The maker of CVS hand sanitizers, Vi-Jon Inc., is facing a similar suit in the Southern District of California, with a proposed class alleging that the products fail to live up to their promise of killing 99.99% of germs.

Mier is represented by Bobby Saadian, Justin F. Marquez, Thiago Coelho and Robert Dart of Wilshire Law Firm PLC.

CVS is represented by Carol R. Brophy, Danielle Vallone and Melanie Ayerh of Steptoe & Johnson LLP.

The case is Mier v. CVS Health, case number 8:20-cv-01979, in the U.S. District Court for the Central District of California.

--Editing by Jill Coffey.

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