John McKinleyBlack Press
A blunt-spoken Ladysmith senior is at the epicentre of a legal battle that could have a huge impact on not only Canada’s number-one cold remedy, but on the country’s entire natural health industry.
Don Harrison is the lead plaintiff in a lawsuit seeking class-action certification against the makers of Cold-Fx, which bills itself Canada’s number-one selling cold remedy.
On April 4-8, B.C. Supreme Court Justice Janice Dillon will rule on whether or not Harrison’s case can be expanded to include virtually anyone who used the product between 2004 and 2012.
“We still must show that there are common issues and that a class action is the preferable way of resolving all class members’ claims, but based on the recent Supreme Court of Canada case law, we are confident that this hurdle can be met,” Harrison’s lawyer John Green said.
The particulars of the suit are many, but its thrust is straightforward: it alleges Afexa Life Sciences and Valeant Pharmaceuticals misled consumers into thinking Cold-Fx was capable of relieving flu and cold symptoms if taken for periods of less than two months. Essentially, it argues that the Cold-Fx packaging promised something it could not deliver.
“At trial, we may prove fraud by showing that the statements on the boxes we say are false, were also material to a person’s purchase,” Green said.
“Given that the statements we say were fraudulent concerned efficacy, dosage, and dosage duration (all regulated by Health Canada), we are confident that the defendants have an uphill battle now.”
The claims remain unproven. The defendants have thus far declined to discuss the case in the media. They did attempt to have it thrown out of court, but Supreme Court Justice John Truscott ruled Jan. 21 that it could proceed.
“Since the matter is before the courts, it would be inappropriate for us to comment at this time,” spokesperson Caroline De Silva said on behalf of the defendants. “We believe the action is without merit and are defending it vigorously.”
Green, who specializes in lawsuits regarding the pharmaceuticals industry asked Harrison to be the representative plaintiff after watching a CBC documentary on the product and reading a letter Harrison wrote to the Ladysmith Chronicle on the topic.
“I said ‘in a goddamn heartbeat,” Harrison said. “They’ve got a hell of a case.”
Filed in New Westminster in March of 2012, the suit alleges Harrison purchased Cold-Fx in February 2011 after reading marketing material that suggested the product would supply immediate relief for cold and flu symptoms, a suggestion the plaintiff maintains the defendants knew to be false.
The suit states that while the firm’s own research indicates the product may address cold and flu symptoms, that same research is based on participants who took the product for periods of two to six months.
“Afexa and Valeant had (other) research as far back as 2004 which showed Cold-Fx was less effective than a placebo at treating cold or flu symptoms if taken during a short duration,” Green said.
Green’s trial plan is to prove the marketing statements are false, determine the number of boxes of the product sold with those statements, and then estimate the value paid by British Columbians.
“On top of this there would be interest, which began compounding about decade ago, and so that amount by itself is expected to be quite large,” he said.
The National Post reported “more than $117 million worth of the ginseng-based product was sold in Canada as recently as 2011.”
Green said the point of the lawsuit is not to earn money for the plaintiffs. Instead, it aims to make anyone who may have misled the public accountable for their actions, while delivering a stern warning to any health remedy company making, or considering making, false claims.
The likelihood of any lawsuit proceeds ending up in the hands of Cold-Fx customers is slim, given the relatively small expense of their individual purchases and the difficulty reimbursing people. Rather the judge would more likely direct any reward to a charitable public service fund in a related area.
Harrison hopes a statement will be made.
“Those natural products, they can get away with murder almost,”he said. “I hope that the judge rules in our favour. That damned money doesn’t belong to them.”