Consumer class action filed against makers of WaxVac ear removal product

By Jon Campisi | Mar 3, 2014

A class action lawsuit has been filed against the makers of WaxVac, an earwax removal product that is billed as a safer alternative to traditional cotton swabs.

The lead plaintiffs in the case, Marc Weinstein and H. Thomas Ferguson, allege that despite promises to the contrary, the product fails to remove dirt particles and moisture from the ear canal as intended.

The consumer rights class action accuses the defendant, King of Prussia, Pa.-based Lenfest Media Group, of failing to deliver on its promise that the WaxVac is the superior alternative to Q-Tips.

The complaint says that for the thousands, if not millions, of consumers who have purchased the WaxVac, the product does not work as promised.

The device is designed to draw dirt and moisture out of the ears rather than pushing it in the ear, such is the case with cotton swabs.

The defendant says it created the device after medical professionals began warning of the dangers associated with inserting cotton swabs into the ear.

The complaint says that the defendant marketed WaxVac using deceptive advertising and packaging, something that caught the eye of the federal Food and Drug Administration, which sent a warning letter to Lenfest in July 2013 requesting that it “immediately cease activities that result in the misbranding or adulteration of the WaxVac …”

Despite the FDA’s admonishment, however, the defendant continues to use the same claims in its marketing campaign to this day.

The complaint contains counts of unjust enrichment, breach of express warranty, breach of implied warranty of merchantability, and breach of duty of good faith and fair dealing.

The suit also accuses the defendant of violating state consumer protection laws and the Magnuson-Moss Act, which governs warranties on consumer products.

The complaint seeks class action certification, stating that the number of proposed class members numbers in the thousands, if not tens of thousands.

It also says potential damages could exceed $5 million.

The plaintiffs seek to have a judge order Lenfest to stop selling WaxVac.

They also seek a declaration that the product was negligently designed and manufactured.

Compensatory damages are also sought as are attorneys’ fees, costs, interest and equitable relief.

The lawsuit was filed in U.S. District Court in Philadelphia on Feb. 28 by Jenkintown, Pa. attorneys Brian M. Felgoise and Amir Stark, of the Felgoise Law Firm, and Merion Station, Pa. lawyer Marc S. Henzel.

The federal case number is 2:14-cv-01251-ER.

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