8 November 2023

Cold Remedy/Vitamin C Convenience Pack Is Not Deceptive

Lately, there seems to be an overdose of OTC (Over the Counter) drug cases. Everywhere we look, we see more and more lawsuits centered on OTC's, both in the areas...
United States Food, Drugs, Healthcare, Life Sciences
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Lately, there seems to be an overdose of OTC (Over the Counter) drug cases. Everywhere we look, we see more and more lawsuits centered on OTC's, both in the areas of product liability and consumer fraud. Is it because OTC litigation offers plaintiff lawyers the prospect of a huge potential plaintiff population? Is it because, unlike with prescription medications, plaintiffs can easily exaggerate or even make up the extent of their product usage? Is it because claims against OTC's sidestep the pesky learned intermediary doctrine? We have our suspicions. In any event, most of the OTC cases littering our inbox seem awfully weak, sometimes even desperately so.

In Kampmann v. Procter & Gamble Co., 2023 WL 7042531 (C.D. Illinois Oct. 24, 2023), the plaintiff filed a class action alleging that the sale of a "Daytime Convenience Pack," which consisted of Dayquil Cold relief medicine and a vitamin C supplement, deceived consumers into believing that the vitamin C independently treated cold and flu symptoms. This allegation should have enjoyed the half-life of a sneeze, considering that the label on the vitamin C supplement stated in all capital letters that "THIS PRODUCT IS NOT INTENDED TO TREAT COLDS OR FLU." The court ended up dismissing the consumer fraud action (which rested on statutes in Illinois and various other states, as well as common law fraud, breach of warranty, and unjust enrichment claims), but it took nine pages to do so. We cannot help but wonder why the court did not dump the case in nine lines. There was simply no misrepresentation.

What in the world was the plaintiff's fraud theory? The plaintiff argued that mere juxtaposition of the cold treatment and vitamin C products was an implied misrepresentation because the dietary supplement allegedly was "not an effective treatment" for cold/flu, while the OTC drug was. But shouldn't the specific disclaimer regarding the vitamin C preclude any implied misrepresentation merely by physical juxtaposition? The plaintiff cited a national survey showing that 60% of Americans believe that vitamin C is as good as OTC medications in treating cold and flu symptoms. Thus, so the reasoning goes, the joint OTC-plus-vitamin C convenience package exploits a common misconception. The packaging did not correct that misconception (except it did), and therefore perpetrated fraud by omission. People paid more for the convenience pack than they would have if they had known that vitamin C is useless, so they should get some money back. And let's not forget about attorney fees.

The Kampmann court rejected the fraud claim because the complaint did not set forth an actual fraudulent communication. Even fraud by omission requires some sort of communication. Construing "side-by-side" joint packaging as a communication was novel and unsupported by precedent. Pure product placement cases (like the one we discussed here) were not particularly relevant where a third-party had done the shelving. Absent any actual communication, the disclaimer precluded any claim of actual deception. The Kampmann court also distinguished away cases where plaintiffs were allowed to press claims that OTC cough syrup boasting of "maximum strength" might deceive consumers. (We criticized here a similar ruling as being maximum dumb.)

The plaintiff also contended that the co-packaging was misleading because it did not conform to the FDA's proposed rule 80 Fed. Reg. 79776, which views co-packaging to be an implied claim that the products are intended to be used together for a common or related therapeutic purpose. As an initial matter, whether or not the packaging complied with FDA "convenience pack" regulations, was irrelevant. Plaintiffs could not privately enforce the FDCA, so a violation of an FDA rule, by itself, cannot establish deceptive advertising. Moreover, the plaintiff did not address "that vitamin C, which admittedly may decrease colds' duration if taken regularly before the onset of symptoms, might be perceived as having a common or related therapeutic purpose with a drug meant to treat the symptoms." We were personally glad to see the court make that point, since we take vitamin C (in the form of delicious gummies) to ward off colds, and did not wish to discover that we are thimble-headed for doing so.

So much for fraud. And without any fraud, there could be no claim for unjust enrichment. As for the warranty claims, they failed for reasons both similar to and dissimilar to what sunk the fraud claims. First, the express warranty claim is a goner because there was no express representation. Second, the warranty claims independently failed for lack of pre-complaint notice.

Besides asking for cold, hard cash, the plaintiff sought an injunction making the defendant's representations about the product "consistent with its abilities, attributes, and/or composition." But the plaintiff now lacks standing to pursue such relief, as "she is now aware that Super C is not effective in treating the symptoms of colds and flu." The plaintiff tried to get around this epistemological hurdle by suggesting certain "assurances," or maybe forcing the products to be sold separately. Of course, the products already can be purchased separately. The Kampmann court found "the requested relief ill-defined and nonsensical, apparently filed with little thought." The court then observed that the plaintiff lawyer "has authored a barrage of consumer fraud claims," and that he "has been advised on multiple occasions, by courts throughout the country, that a plaintiff does not have standing for injunctive relief where the plaintiff is aware of the alleged deception and is no longer subject to being injured by it."

And yet, with all of the infirmities in the complaint warranting complete dismissal, and with the plaintiff lawyer's track record, the Kampmann court granted the plaintiff leave to amend. The court "cautioned" the plaintiff that "there must be a good faith basis for an amended complaint," but is such a caution likely to head off a case that was a sheer money grab from the start? We'd prefer to see a judicial convenience/combo pack of vitamins D (dismissal) and P (prejudice).

This article is presented for informational purposes only and is not intended to constitute legal advice.

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