January 1, 2011

The Oregon attorney general’s office has filed a lawsuit against healthcare giant Johnson & Johnson over the company’s “phantom recall” of the over-the-counter painkiller Motrin. The complaint claims that by delaying an official recall of the defective product for more than a year, the company put consumers at risk.

The company discovered in early 2009 that Motrin caplets did not dissolve properly. Instead of notifying the public that the product could be harmful, the company chose a subtler way to get the product out of stores. Johnson & Johnson hired contractors who, posing as shoppers, bought up the Motrin caplets in question. According to the complaint, the company instructed the contractors not to tell retailers why they were buying the product and certainly not to mention that this was part of a recall.

In February 2010, more than a year after launching the “phantom recall,” the company announced a formal recall. The Oregon attorney general contends that almost 800 suspect containers of the product are unaccounted for in the state.

A representative from Johnson & Johnson said the phantom recall was “consistent with applicable law.” She also asserted that consumers’ health and safety were not put at risk by the “limited recall.”

The chief executive of the company, however, told Congress last September that Johnson & Johnson had “let the public down.” He joined U.S. Food and Drug Administration leadership in recalling the company’s history of responsible behavior, typified by the 1982 Tylenol recall.

The attorney general said the lawsuit serves two purposes: to hold Johnson & Johnson accountable, and to put health product manufacturers on notice that a phantom recall is not an acceptable response to adefective product.

The complaint asks for restitution for consumers who purchased the suspect Motrin in Oregon and a fine of up to $25,000 for each violation of Oregon’s trade practice laws. Johnson & Johnson said it would move to have the complaint dismissed.

Source: Westlaw News & Insight “Johnson and Johnson Sued by Oregon Over ‘Phantom’ Motrin Recall” 01/12/11

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