Wal-Mart Sued in Texas Hearing Aids

DALLAS, Aug. 15, 2013 /PRNewswire/ -- Members of the Texas Hearing Aid Association have filed a federal class-action lawsuit against Wal-Mart Stores Inc. (NYSE: WMT) based on claims that the world's largest retailer sells hearing aids without the state-mandated license.

The group is seeking to stop Wal-Mart's hearing aid sales immediately, in addition to asking the court to require the return of profits from prior sales.

"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," says attorney Bill Chamblee, managing partner of Dallas-based Chamblee, Ryan, Kershaw & Anderson and lead counsel for the hearing aid group.

"There's a reason the state allows only licensed dispensers and audiologists to fit and dispense hearing aids in Texas," continues Mr. Chamblee. "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."

Mr. Chamblee says the Bentonville, Ark.-based retail giant has chosen profits over the health interests of Texans.

"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," says Mr. Chamblee, who has won more than 130 jury verdicts and case dismissals for clients during a 27-year legal career.

Wal-Mart spokesman Dan Fogelman who called about a half-hour after the original version of this blog posted. He said Wal-Mart requires hearing aid users to sign a waiver indicating that they have elected to purchase the device without an exam.

"Wal-Mart’s mission is to help people save money so they can live better," Fogelman said. "One way we do that is to offer affordable hearing aids at select locations. This helps our customers with hearing aid needs save potentially thousands of dollars.
"While a medical exam is recommended before purchasing a hearing aid, under federal law, adults have the option to waive an exam before buying them," Fogelman said. "We offer our customers that option."

FEDERAL AND STATE LAW

The U.S. Food and Drug Administration (FDA) states that it is in patients’ “best health interest to have a medical examination by a licensed physician, preferably one specializes in ear diseases, before buying hearing aids.” The law requires those who do not have such a workup to sign a waiver saying they do not want an exam to rule out a medical reason for their hearing loss before buying hearing aids.

“States develop their own requirements for the licensing of hearing aid dispensers, which may affect how federal regulations are carried out,” wrote FDA spokeswoman Synim Rivers in an e-mail to The Hearing Journal.

Texas law states that only a licensed audiologist or a hearing instrument dispenser can sell and dispense a hearing aid. The state's Occupations Code defines fitting and dispensing of hearing aids as the “use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments.”

The plaintiffs, who are licensed by the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments, argue that Walmart is measuring hearing by “other means” because the store posts device selection charts on its OTC hearing aid displays designed to help customers evaluate their hearing abilities and choose a hearing aid.

Even if customers sign waivers, Walmart is “still in violation of the law because they are not licensed,” Mr. Chamblee said.

BEYOND TEXAS

It is difficult to track whether the over-the-counter sale of hearing aids is spreading to other states, said George Lyons of the American Speech–Language–Hearing Association's government affairs unit.

However, Texas hearing healthcare professionals think that the situation in their state is a harbinger of an even more widespread problem.

“I believe Walmart is test-marketing this program in our state and will be opening it up countrywide, so other hearing providers should be concerned,” Dr. Navarro said.

Dr. Clark expressed a similar perspective.

“I think selling product clearly labeled as hearing aids in an over-the-counter model is a nice weather balloon for Walmart to see if audiologists are going to sit and do nothing and let this happen.”