Cold-FX class action lawsuit over misleading ads thrown out

Judge says Vancouver man couldn't effectively prove his claim

The Canadian Press November 17, 2016

A judge has rejected a Vancouver Island man’s bid to launch a class-action lawsuit against the makers of the cold and flu remedy Cold-FX.

Don Harrison launched a claim in 2012 against Valeant Pharmaceuticals and its subsidiary, Afexa Life Sciences, over advertising that said Cold-FX offered immediate relief of cold and flu symptoms if taken over a three-day period at the first sign of illness.

He wanted other people who purchased the product to be able to join the lawsuit.

But in a written decision released Wednesday, Justice Janice Dillon of the B.C. Supreme Court says Harrison failed to prove there is an identifiable group of people with the same complaint about the company’s advertising who bought Cold-FX.

She also ruled that Harrison isn’t the best plaintiff to represent the interests of others in the class-action because he hasn’t established he has a complaint against the defendants.

Dillon noted that the plaintiff only said he purchased Cold-FX in 2011, didn’t say what specific product he purchased and was “recruited by his lawyer.”

“Harrison had expressed in public that he thought that Cold-FX was a ‘colossal scam’ based on a television documentary; however, there is no evidence that he had any idea about representations in the labelling or marketing of the product, or that he was even concerned or felt harmed by them,” she says in the ruling.

Lawyer Alan D’Silva, who represents Valeant and Afexa, said the decision is exceptional because the judge decided not only was there no class of people with a valid complaint, but there wasn’t a single person who had a complaint.

“It’s finally disposed of and dismissed and it can no longer be a distraction for the company because it never had any merit in the first place,” he said in an interview.

But Harrison’s lawyer, John Green, said there will be an appeal.

“He took the product,” he said after the decision was released. “It didn’t work, certainly that’s his allegation and I’ve never seen any research that would support that it would work.”

The court only decided on the class-action issue and Harrison’s allegations against Valeant have yet to be tested in court.

Green is also the lawyer in a similar lawsuit in Saskatchewan that covers the rest of the country. A separate case was started in B.C. because the province had different class-action legislation.

The drug company is defending itself against allegations it misled customers about the natural-health product’s short-term effectiveness in reducing cold and flu symptoms, which its advertising claimed in the past.

D’Silva said extensive evidence was filed about the product’s success along with consumer research showing that more than 90 per cent of users are pleased with the product.

“A lot of time and money has been wasted on this already. It needs to come to an end,” D’Silva said.