Kroger suing over Johnson & Johnson's 'phantom recall'

Keith Loria Jan. 12, 2011, 3:51pm


SALEM, Ore. (Legal Newsline) - Oregon Attorney General John Kroger announced on Wednesday that he is suing Johnson & Johnson and two subsidiaries for allegedly delaying the disclosure of a problem with its Motrin product for more than a year.

The company allegedly schemed to secretly buy supplies off shelves to avoid negative publicity and finally came clean with a public recall in 2010.

The lawsuit alleges that by engaging in the "phantom recall," Johnson & Johnson failed to notify consumers who had already purchased the defective product and put additional consumers at risk.

"Companies that break the rules and put consumers at risk will be held accountable," Kroger said. "This lawsuit is another example of how the Oregon Department of Justice is a national leader in combating health care fraud."

Johnson & Johnson subsidiaries McNeil-PPC and McNeil Healthcare allegedly learned that supplies of Motrin sold in eight- and 24-caplet containers were defective near the end of 2008. These tainted containers were sold at gas stations, truck stops and convenience stores throughout the state from the Portland area to Medford, Kroger says.

Tests conducted by the company allegedly showed that certain Motrin supplies failed to dissolve properly, risking that consumers were not getting the expected dose of ibuprofen. According to documents submitted by the company to the U.S. Food and Drug Administration, this could have caused "a worsening of pain, fever or inflammation."

Although McNeil notified the FDA, it didn't disclose the existence of the defective Motrin to the public, Kroger says. Instead of a recall, McNeil allegedly hired contractors to go into stores in early 2009 to secretly buy the product without telling wholesalers, retailers or the public. These buyers were allegedly told not to let retailers know the true purpose of their purchases.

"You should simply 'act' like a regular customer while making these purchases," Johnson & Johnson allegedly told its buyers. "THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THE PRODUCT! If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project."

A total of 787 eight-count containers of Motrin sold by Oregon retailers still remain unaccounted for, Kroger says.

Kroger alleges multiple violations of the state's Unlawful Trade Practices Act, which carries a maximum penalty of $25,000 for each violation.

The UTPA prohibits employing unconscionable tactics, making certain false or misleading representations, or failing to disclose certain information.

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