By David H. Kirkwood
MARSHALL, TX–The Texas Hearing Aid Association (THAA) has brought a federal class-action lawsuit against Wal-Mart Stores Inc., charging that the world’s largest retailer is selling hearing aids in Texas without the state-mandated license. The plaintiffs, who filed suit last month in U.S. District Court for the Eastern District of Texas in Marshall, are asking the court to stop Wal-Mart’s hearing aid sales in Texas immediately.
In an August 21 interview with Hearing News Watch, Bill Chamblee, who is lead counsel in the case, said that Wal-Mart stores in Texas are violating state law in having non-licensed employees dispensing the devices. He said that the Texas law, which is supported by federal law, “serves a legitimate public health interest.”
In an earlier statement, Chamblee, who is managing partner of the Dallas-based firm Chamblee, Ryan, Kershaw & Anderson, said, “Wal-Mart knew it was required under Texas state law to become licensed in order to dispense hearing aids in Texas stores, yet the corporation has failed to take all necessary steps to ensure their ability to do so.”
“There’s a reason the state allows only licensed dispensers and audiologists to fit and dispense hearing aids in Texas. When an individual suspects they have hearing loss, a licensed hearing professional will be able to give a complete examination of the patient’s auditory health in order to detect infections and other problems that aren’t addressed by simply wearing a hearing aid.” –Bill Chamblee, lead counsel
Non-Custom Hearing Aid Products
The hearing aids that Wal-Mart sells in its Texas stores are non-custom devices, made by General Hearing. When a customer buys a hearing aid, no testing is conducted to determine what the person’s hearing loss is, whether or not the person is a candidate for hearing aids, or if the device being sold is appropriate for the particular customer’s hearing problems.
Many amplifying devices are sold this way both in stores and online. If they are marketed as personal sound amplification products (PSAPs), they are exempt from Food and Drug Administration (FDA) regulations and state dispensing laws. However the products that Wal-Mart sells in its Texas stores—and also on its web site for prices ranging from about $350 to $500 a piece—are specifically called hearing aids and are expressly intended for the purpose that hearing aids serve—to help people compensate for a hearing loss.
In some cases, Wal-Mart is requiring that purchasers first sign a waiver saying that they have chosen not to get a medical examination before buying hearing aids. However, Chamblee told this blog, he has many eye witness accounts from people who purchased the hearing aids from a Wal-Mart store in Texas without signing a waiver.
Many audiologists and hearing aid specialists routinely offer their patients such waivers, but the signing of a waiver does nothing to override a state law stating that only a licensed professional can dispense hearing aids.
Lawsuit Demands Wal-Mart Return Hearing Aid Sale Profits
In addition to asking the Federal District Court to stop Wal-Mart from selling hearing aids without a license, the plaintiffs want the court to require the Bentonville, AR-based company to return the profits from prior unlicensed sales. Although Chamblee would not estimate how many hearing aids Wal-Mart has sold illegally on Texas, he said there have been many thousands such sales.
The attorney charged that the company has chosen profits over the health interests of Texans. He said, “The State of Texas estimates that more than 3.8 million residents are deaf or hard of hearing. That’s a tremendous potential customer base that Wal-Mart apparently couldn’t resist.”
Wal-Mart has until August 27 to respond to the suit. While attempts by this blog to reach the company were unsuccessful, Dan Fogleman, a Walmart spokesperson, has said that his company’s mission is to help people save money and live better, and that offering inexpensive hearing aids serves that mission.