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.

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.”

Just Posted

Diana Durrand and Arlene Nesbitt celebrate the new artist space in 2014. Gage Gallery moves this summer from Oak Bay to Bastion Square in Victoria. (Black Press Media file photo)
Gage Gallery moving to Bastion Square

Vivid Connections, a showcase by Laura Feeleus and Elizabeth Carefoot, opens new venue June 29

Theatre SKAM is offering mobile, pop-up performances to Greater Victoria residents once again this summer. They’ll feature emerging artists Yasmin D’Oshun, Courtney Crawford, Kaelan Bain and Kendra Bidwell (left to right). (Courtesy of Theatre SKAM)
Theatre performances can be ordered to Greater Victoria front yards this summer

Theatre SKAM offering mobile, pop-up performances once again

Days after students’ return to Victoria High School was delayed by a year, the province has announced some amenities that will be included in the school’s expansion project. (Photo by Cole Descoteau)
Child-care spots, artificial turf field, non-profit space included in Vic High expansion

SD61 now aims to welcome students back at the high school by September 2023

Gwen Spencer Hethey with her uncle and mentor Major Frederick Richardson. (Courtesy of Greater Victoria Sports Hall of Fame)
‘She was a killer’: The Victoria woman who pioneered female sharpshooting

Gwen Spencer Hethey made military men ‘look like turkeys’ says her son

Anita Troop officially turns 100 on Sunday and cards are pouring in from around the world. (Courtesy Marina Miller)
Cards roll in from around the world for West Shore 100 year old

About 100 cards have come for the woman who turns 100 on Sunday

A small pod of Pacific white-sided dolphins pass by close to shore in Campbell River June 16, 2021. Still capture from video courtesy of Kimberly Hart
VIDEO: Dolphin sunset captured from Vancouver Island shore

Spectacular setting for view of travelling pod of Pacific white-sided dolphins

A North Vancouver man was arrested Friday and three police officers were injured after a 10-person broke out at English Bay on June 19, 2021. (Youtube/Screen grab)
Man arrested, 3 police injured during 10-person brawl at Vancouver beach

The arrest was captured on video by bystanders, many of whom heckled the officers as they struggled with the handcuffed man

Patrick O’Brien, a 75-year-old fisherman, went missing near Port Angeles Thursday evening. (Courtesy of U.S. Coast Guard)
Search for lost fisherman near Victoria suspended, U.S. Coast Guard says

The 75-year-old man was reported missing Thursday evening

Bruce Springsteen performs at the 13th annual Stand Up For Heroes benefit concert in support of the Bob Woodruff Foundation in New York on Nov. 4, 2019. (Greg Allen/Invision/AP)
Canadians who got AstraZeneca shot can now see ‘Springsteen on Broadway’

B.C. mayor David Screech who received his second AstraZeneca dose last week can now attend the show

New research suggests wolves can be steered away from the endangered caribou herds they prey on by making the man-made trails they use to hunt harder to move along. THE CANADIAN PRESS/Nathan Denette
Culling cutlines, not B.C. wolves, key to preserving caribou herds: researcher

The government has turned to killing hundreds of wolves in an effort to keep caribou around

Gary Abbott (left) and Louis De Jaeger were two of the organizers for the 2014 Spirit of the People Powwow in Chilliwack. Monday, June 21, 2021 is Indigenous Peoples Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of June 20 to 26

Indigenous Peoples Day, Take Your Dog to Work Day, Onion Rings Day all coming up this week

Central Okanagan Grade 12 grads are set to get $500 each after a more than $1 million donation from a Kelowna couple. (File photo)
B.C. couple donating $500 to every Grade 12 student in the Okanagan

Anonymous donors identified as Kelowna entrepreneurs Lance and Tammy Torgerson

Rita Coolidge played the main stage at Vancouver Island Musicfest in 2017. (Black Press file photo)
This year’s Vancouver Island MusicFest to virtually showcase beauty of Comox Valley

Returning July 9 through 11 with more than 25 hours of music performances

Most Read