Suit gives Cold-Fx the cold shoulder

Ladysmith senior takes on Canada’s number-one selling cold remedy in a class-action suit for allegedly making false promises

Ladysmith’s Don Harrison is the lead plaintiff in a class-action lawsuit seeking certification against Cold-Fx

Ladysmith’s Don Harrison is the lead plaintiff in a class-action lawsuit seeking certification against Cold-Fx

Don Harrison took his medicine. He didn’t feel any better. He doubts anyone else did either.

And now, he says, someone needs to pay.

The outspoken Ladysmith senior is the lead plaintiff in a class-action lawsuit launched against the makers of the Canadian health remedy Cold-Fx.

The plaintiffs allege the firm misled the public into thinking the product was going to immediately relieve their cold symptoms, when it had no reason to believe that was actually the case.

Harrison, who’s never been part of anything like this before, said he got involved simply because the situation offended his strong sense of justice.

“That’s exactly what it is. That’s bang on,” he said.

No only that, according to the lawyer spearheading the suit, it could serve as cautionary tale for the entire natural health industry.

John Green says the industry is not scrutinized nearly as tightly as the pharmaceuticals industry, leaving a door open for manufacturers making false claims, something the suit alleges happened here.

The B.C. Supreme Court statement of claim was registered in March of 2012 in New Westminster against Alberta-based Afexa Life Sciences, and Ontario-based Valeant Pharmaceuticals, the makers of the product, which was the subject of a high-profile marketing campaign led by hockey icon Don Cherry.

It 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 plaintiffs maintain 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.

“The defendants’ advertising deliberately omits telling consumers that they would need to take Cold-Fx over a prolonged period,” the statement of claim reads. “The defendants were aware that the high cost of an individual bottle of Cold-Fx meant that it was unlikely consumers would engage in a two- to six-month Cold-Fx regime prior to, and during, the cold and flu season.”

Lawyers are scheduled to conclude arguments in June about the admissibility of the case, after which a judge will decide whether or not to certify it for trial.

None of the suit’s allegations have been proven. Calls to the defendant’s corporate office, and to their legal representation were not returned. But they have applied to have the case thrown out of court.

Green specializes in lawsuits involving the pharmaceuticals industry. He said Cold-Fx came to his attention following a CBC documentary raising questions about the product.

He followed up the science of their claims with health experts, and was introduced to Harrison through a letter Harrison wrote to the Chronicle about his concerns.

Harrison had watched the same program.

“I bought some and I took it and nothing happened. And I took it again and nothing. Then, all of sudden I’m watching Marketplace on CBC,” he said. “I started to think about it and a wrote an article to your paper. About a week went by and John contacted me.”

After a meeting, Green asked Harrison to come on board to be the representative plaintiff.

“I said ‘in a goddamn heartbeat,” Harrison said. “They’ve got a hell of a case.”

If the case is successfully certified, it could mean that virtually everyone who used Cold-Fx in between 2003 and 2012 could become party to the suit.

Given the relatively small expense of their individual purchases and the difficulty reimbursing people, Green said it is unlikely any of them would get any money out of it. Rather the judge would more likely direct any reward to a charitable public service fund in a related area.

He couldn’t say how many people bought the product during the period in question, but suggested the number is considerable. The National Post reported “more than $117 million worth of the ginseng-based product was sold in Canada as recently as 2011.”

“They bill themselves as Canada’s top-selling cold remedy company and they can afford guys like Don Cherry,” Green said.

According to Green, 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.

“Those natural products, they can get away with murder almost,” Harrison said. “I hope that the judge rules in our favour. That damned money doesn’t belong to them.”