EAST ST. LOUIS – U.S. District Judge Stephen McGlynn dismissed a class action complaint that labels on Walmart’s 3% hydrogen peroxide deceived shopper April Wright of Chester.
In an order, McGlynn rejected her claim that the words “for treatment of minor cuts and abrasions” meant the product would shorten the time of healing.
“Wright’s leap from the treatment of minor cuts and scrapes to a shortened healing time was wholly unsupported,” he wrote.
He entered the order with prejudice rather than grant leave for her counsel Spencer Sheehan to amend as judges generally do on a first motion to dismiss.
Other judges have dismissed Sheehan’s complaints with prejudice on a first motion, according to an order District Judge David Dugan entered on Aug. 14.
He dismissed a complaint that Gillette Pure shaving product contains impurities.
He granted leave to amend but echoed judges who didn’t grant it.
Sheehan voluntarily dismissed the complaint on Aug. 31.
He has filed 29 class action complaints over labels and ingredients in the Southern Illinois district since May 2021.
In the Walmart action, plaintiff Wright alleged consumer fraud and breach of warranty.
She proposed to certify an Illinois class and a class for 12 other states.
McGlynn found federal law precluded claims under Illinois law.
He found the Food and Drug Administration posted an order in May finding hydrogen peroxide generally recognized as safe and effective.
He found Illinois law can’t impose additional requirements.
He found the back panel specified that the solution should be used in first aid to help prevent the risk of infection in minor cuts, scrapes, and burns.
“Clearly, Walmart has complied with the federal standards,” he wrote.
He stated even if federal law didn’t preempt her claim, she still failed to state a consumer fraud claim on which he could grant relief.
He found a court may dismiss a claim under Illinois consumer law if a statement wasn’t misleading as a matter of law.
“Treatment is subject to a multitude of definitions and plaintiff has not plausibly shown that the statement was deceptive,” he wrote.
He dismissed the warranty claim because Wright failed to make a demand on Walmart prior to suing and failed to provide notice to Walmart regarding any defect.
Sheehan practices in Great Neck, New York.