Bayer Healthcare LLC (Bayer) is the latest in a long line of companies to be hit with a consumer class action lawsuit over recalled personal care products containing benzene—a carcinogen found in a variety of consumer products, including most notoriously, aerosol deodorant, sunscreen, and dry shampoo.
Roughly two years ago, on October 1, 2021, Bayer voluntarily recalled Lotrimin and Tinactin, two over-the-counter antifungal spray products used to treat various skin infections, after it discovered the presence of benzene.
On September 14, 2023, eleven consumers filed Stewart et al. v. Aeropres Corp., et al, a putative nationwide class action against several defendants, including Bayer, in the U.S. District Court for the Northern District of Illinois, and assert seventeen causes of action for breach of warranty, fraud, negligence, unjust enrichment, and violation of certain consumer protection laws. The plaintiffs—purchasers of Lotrimin and/or Tinactin who reside in states around the country—do not allege physical injury from benzene exposure. Instead, they seek to recover only economic harm based on the allegation that they (1) overpaid for the recalled products, (2) would not have purchased those products if they knew of the benzene levels, and (3) were forced to purchase replacements. Bayer’s co-defendants include Aeropres Corporation, which manufactures Propellant A-31 (the alleged source of benzene contamination) and Beiersdorf Manufacturing, LLC and Beiersdorf, Inc., which manufacture the products themselves.
Plaintiffs’ allegations focus on a six-week period between August and October of 2021. More specifically, they claim that:
- in mid-August 2021, Aeropres notified Beiersdorf of benzene-contaminated Propellant A-31, and Beiersdorf, in turn, notified Bayer,
- in September 2021, Beiersdorf received the results of testing that confirmed benzene contamination; and
- Bayer continued to sell benzene-contaminated products until October 2121 when it announced a recall, even though it continued to maintain that the levels detected would not cause adverse health consequences.
This is not the first consumer-facing class action over Bayer’s Lotrimin and Tinactin products. Several of the same plaintiffs previously filed Huertes et al. v. Bayer U.S., LLC, a putative class action in the U.S. District Court for the District of New Jersey. In May 23, 2023 the court dismissed that case, concluding that plaintiffs had failed to demonstrate a cognizable injury sufficient for standing under Article III. According to the court, plaintiffs’ conclusory assertion that the products were worth “less” than they “bargained for” was speculative, and complaint also lacked critical information such as when the products were purchased, how they were used, when and how each plaintiff learned of the potential contamination, and their response. The Huertes decision is currently pending appeal before the U.S. Court of Appeals for the Third Circuit.
Unlike Huertes, the plaintiffs in Stewart, assert claims of fraud and negligent misrepresentation, name several other companies in the supply chain as defendants, and include more detailed allegations about what each of the defendants supposedly knew and when. There are also several new plaintiff-specific allegations, but information about how each plaintiff allegedly used the products, learned of the potential contamination, or responded to that information—information critical to the court’s motion to dismiss ruling in Huertes—is still missing. On December 16, 2023, Bayer filed a Motion to Dismiss in Stewart, urging the court to apply the first-filed rule in light of Huertes, and dismiss the case (or alternatively transfer it to the District of New Jersey).