Cold remedy lawsuit seeks class-action certification

Vancouver Island man to act as lead plaintiff in case against the makers of Cold-Fx

Ladysmith senior Don Harrison is the lead plaintiff in a class-action lawsuit seeking certification agains the makers of the popular cold remedy Cold-Fx.

A blunt-spoken Ladysmith senior is at the epicentre of a legal battle that could have a huge impact on not only a popular 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.”

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A bear similar to this black bear is believed responsible for killing a llama in Saanich on Oct. 19. (Black Press Media file photo)
Saanich residents warned to watch livestock after bear kills llama

Officers with Conservation, Saanich police could not track the bear they feel may not fear humans

A 23-foot sailboat that broke free from its anchor was smashed against Cattle Point during the early October south-easterly storms. (Ron Geezin Photo)
Storm-smashed boat pulled off rocks of Cattle Point in Oak Bay

Sailboat a casualty of last week’s big storms

With local MLA Adam Olsen looking on, BC Greens leader Sonia Furstenau said a Green government would convert BC Ferries into a Crown corporation Wolf Depner/News Staff)
Green leader Sonia Furstenau promises to convert BC Ferries back into Crown corporation

Promise comes Monday afternoon with five days left in campaign

More than 250 riders took part in the fifth annual Tripleshot CrossFondo, which riders across parts of the Saanich Peninsula, including this field near Sluggett Farms. (Wolf Depner/News Staff)
Tripleshot CrossFondo rides across Saanich Peninsula

More than 250 cyclists took part in mystery-course race

City of Victoria crews will soon be gathering up fallen leaves in neighbourhoods and city parks. First up on the pickup list are the James Bay, Fairfield, Rockland, Gonzales and South Jubilee neighbourhoods, starting Oct. 19. (Courtesy City of Victoria)
Victoria city leaf pickup a sure sign of fall

Residential pickup begins Oct. 19, drop-offs can happen anytime at city yard

Advance polls are open from Oct. 15 to 21 with election day on Oct. 24. (Black Press Media file photo)
A passer-by walks past a COVID-19 testing clinic in Montreal, Friday, Oct. 16, 2020. THE CANADIAN PRESS/Ryan Remiorz
Canada ‘yet to see’ deaths due to recent COVID surge as cases hit 200,000

Much of the increase in case numbers can be attributed to Ontario and Quebec

Police confirm human remains were found in a recycling bin in Vancouver on Oct. 18, 2020. (Black Press Media file photo)
Human remains found in recycling bin floating near Vancouver beach

Police asking nearby residents to see if their recycling bin has gone missing

(File photo)
RCMP: Two men face charges in reported Parksville fatal hit-and-run

Investigation into man’s death began in August of 2019

B.C. Liberal leader Andrew Wilkinson visits a North Vancouver daycare to announce his party’s election promises for child care, Oct. 9, 2020. (B.C. Liberal Party video)
B.C. parties pitch costly child care programs in pandemic

B.C. Liberals say they’ll deliver on NDP’s $10-a-day promise for lower-income families

Steven Michael Bacon pleaded not guilty to a charge of first-degree murder of Nanaimo teen Makayla Chang. (Photos submitted)
Accused pleads not guilty in Nanaimo teen’s 2017 murder

Steven Bacon appeared in Nanaimo court Monday via video link from Thunder Bay

Voting station at Tzeachten Hall in the riding of Chilliwack-Kent on the first day of advance voting in the provincial election on Oct. 15, 2020. (Paul Henderson/ Chilliwack Progress)
B.C. VOTES 2020: 380,000 British Columbians head to polls in first 4 days of advance voting

Some of highest voter turnout so far has been seen on Vancouver Island and in Shuswap

Grant and Barbara Howse, in quarantine in Invermere. Mike Turner photo
Denied entry into U.S., Kootenay couple still forced to quarantine for 2 weeks

The rules around crossing the U.S. border led to a bizarre situation for an Invermere couple

Most Read