Albertsons dodges class action over 'rapid release' acetaminophen claims

Birds perch upon signage for an Albertsons grocery store in Burbank, California July 17, 2012. REUTERS/Fred Prouser
  • Judge finds case barred by federal drug labeling law
  • Previous lawsuits over acetaminophen 'rapid release' labeling have gone forward

(Reuters) - Grocery store operator Albertsons Companies Inc has won dismissal of a proposed class action lawsuit accusing it of misleading consumers by selling "rapid release" acetaminophen tablets that allegedly dissolved more slowly than its standard version of the over-the-counter pain reliever.

U.S. District Judge Richard Stearns in Boston ruled Friday that the lawsuit, filed in 2021 by Massachusetts resident Nicole Sapienza on behalf of a nationwide class of consumers, was blocked by the federal Food, Drug and Cosmetic Act, which governs drug labeling.

Lawyers for Sapienza and Albertsons did not immediately respond to requests for comment.

Acetaminophen is a popular pain reliever sold generically by many retailers and by Johnson & Johnson under the brand name Tylenol.

Sapienza alleged in her lawsuit that independent testing showed Albertsons "rapid release" acetaminophen dissolved more slowly than its standard version, which costs less. She said she and other consumers were misled into paying more for the "rapid release" version and sought damages under Massachusetts consumer protection law.

The Idaho-based supermarket chain moved to dismiss on the grounds that the drug met the definition of "immediate release" and "rapidly dissolving" given by the U.S. Food and Drug Administration. It said the case was barred by the doctrine of preemption, under which state laws cannot impose requirements on drug labels that go beyond those in federal law.

Stearns agreed, finding Sapienza's claims were preempted even though the FDA did not define the exact term "rapid release." He said it was enough that it "closely resembles" the terms "immediate release" and "rapidly dissolving."

"To find otherwise would require the FDA to list phrases in every possible permutation of similar words to have preemptive effect," he wrote.

Other lawsuits have been filed over the marketing of "rapid release" acetaminophen and have fared better. A California federal judge in 2021 certified a class action against Rite Aid Corp over its version of the drug.

That case subsequently reached a settlement that included an order barring Rite Aid from future "rapid release" labeling nationwide and about $362,000 in attorneys' fees but no money for the class. The settlement has received preliminary but not final approval.

J&J in 2020 also lost a bid to escape a similar proposed class action in New Jersey federal court. The case remains pending.

The case is Sapienza v. Albertsons Companies Inc et al, U.S. District Court, District of Massachusetts, No. 1:22-cv-10968.

For Sapienza: Neal Deckant of Bursor & Fisher

For Albertsons: David Hickerson of Foley & Lardner and others

Read more:

Lawsuit over Rite Aid 'rapid release' acetaminophen wins class certification

IN BRIEF: J&J can't escape case alleging 'rapid release' Tylenol not fast

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.