A logo on the Sanofi exhibition space at the Viva Technology conference dedicated to innovation and startups at Porte de Versailles exhibition center in Paris, France June 15, 2022. REUTERS/Benoit Tessier

(Reuters) - Sanofi SA's U.S. unit must face a proposed class action accusing it of deceptively marketing its IcyHot pain patches and creams as "maximum strength" when in fact there are products on the market with more lidocaine, its active ingredient.

U.S. District Judge Jon Tigar in Oakland, California ruled Tuesday that the plaintiffs — six IcyHot purchasers in California, New York and Illinois seeking to represent a nationwide class — had made the case that they would not have bought maximum strength IcyHot, or would have paid less for it, had they not been misled.

The judge did dismiss some claims, including for fraud, finding that the plaintiffs had not alleged detailed facts about Sanofi's knowledge or intention to support that claim. The plaintiffs had said that the company defrauded consumers by knowingly making deceptive claims to induce them to purchase IcyHot.

"This was an initial decision without any factual development, and it narrowed the case from what was originally asserted," Sanofi said in a statement. "We will continue to defend the case through multiple additional stages and are confident that in the end, the claims will be rejected."

Kevin Laukaitis of Shub Law Firm, a lawyer for the plaintiffs, said he and his clients were pleased with the ruling and looked forward to discovery and preparing for class certification.

The March 2021 lawsuit said Sanofi deceived consumers by labeling its IcyHot products, which contain 4% lidocaine, as "maximum strength" when at least one competitor, Fougera Pharmaceuticals Inc, offered a 5% lidocaine product. The plaintiffs alleged violations of state consumer protection laws and fraud.

Sanofi, in moving to dismiss, argued that the plaintiffs could not claim they were deceived about the amount of lidocaine in IcyHot because the products' labels disclosed the 4% concentration.

Tigar, however, found that whether the label would deceive consumers was a question of fact that could not be decided at the motion to dismiss stage.

IcyHot was the top-selling external painkiller product in the United States in 2019, with nearly $156 million in sales, according to a report from Statista.

The case is Ablaza v. Sanofi-Aventis U.S. LLC, U.S. District Court, Northern District of California, No. 4:21-cv-01942.

For plaintiffs: Kevin Laukaitis and Jonathan Shub of Shub Law Firm

For Sanofi: Randi Singer and David Singh of Weil, Gotshal & Manges

Source: Reuters

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