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.”

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

Just Posted

Keith Thorpe/Peninsula Daily News
Search called off for small plane that went down in rough water south of Victoria

Plane bound for Port Angeles from Alaska believed to have one occupant, an Alaskan pilot

Royal B.C. Museum conservator Megan Doxsey-Whitfield kneels next to a carved stone pillar believed to have significance as a First Nations cultural marker by local Indigenous people. The pillar was discovered on the beach at Dallas Road last summer. Museum curatorial staff have been working with Songhees and Esquimalt Nation representatives to gain a clearer picture of its use. (Photo courtesy Royal BC Museum)
Stone carving found on Victoria beach confirmed as Indigenous ritual pillar

Discussion underway with the Esquimalt and Songhees about suitable final home for the artifact

A property at 1224 Richardson St. in Victoria is the subject of a rezoning application that seeks permission to build three low-rise buildings with 24 units, including four that would rent for below market rate. (Google Streetview)
Victoria development in Fairfield features subsidized housing element

Public hearings this Thursday (Jan. 28) for proposals on Richardson Street and Heywood Avenue

The Save-On-Foods Memorial Centre will once again be transformed into temporary sheltering for 45 individuals starting in March. (Courtesy of the B.C. Government)
Temporary shelter to resume at Victoria Save-On-Foods arena in March

BC Housing signed lease with GSL Group from Feb. 1 to May 30

Victoria police are seeking a young woman suspected of spitting on a bus driver in October 2020. (Courtesy of Victoria Police Department)
VIDEO: Young woman sought after ‘spitting assault’ on Victoria bus driver

Suspect became irate after bus came to a sudden stop

British Columbia Health Minister Adrian Dix looks on as Provincial Health Officer Dr. Bonnie Henry addresses the media during a news conference at the BC Centre of Disease Control in Vancouver B.C. (THE CANADIAN PRESS/Jonathan Hayward)
B.C. announces 485 new COVID-19 cases, fewest deaths in months

‘The actions we take may seem small, but will have a big impact to stop the virus,” urges Dr. Henry

Anyone with information on any of these individuals is asked to call 1-800-222-TIPS (8477) or visit the website victoriacrimestoppers.ca for more information.
Greater Victoria Crime Stoppers wanted list for the week of Jan. 26

Greater Victoria Crime Stoppers is seeking the public’s help in locating the… Continue reading

(B.C. government photo)
POLL: Would you like to see restrictions on travel to B.C. from other provinces?

With a host of more virulent strains of COVID-19 appearing across the… Continue reading

Former Vancouver Giants forward Evander Kane is seen here in Game 7 of the second round of the 2009 WHL playoffs against the Spokane Chiefs (Sam Chan under Wikipedia Commons licence)
Gambling debts revealed in details of bankruptcy filing by hockey star Evander Kane

Sharks left winger and former Vancouver Giants player owes close to $30 million total

Othman “Adam” Hamdan, pictured in front of Christina Lake’s Welcome Centre, was acquitted of terrorism related charges in 2017. He has been living in Christina Lake since November 2020. Photo: Laurie Tritschler
Man acquitted on terrorism charges awaits deportation trial while living in Kootenays

Othman Ayed Hamdan said he wants to lead a normal life while he works on his upcoming book

B.C. Premier John Horgan wears a protective face mask to help prevent the spread of COVID-19 prior to being sworn in by The Honourable Janet Austin, Lieutenant Governor of British Columbia during a virtual swearing in ceremony in Victoria, Thursday, November 26, 2020. THE CANADIAN PRESS/Jonathan Hayward
Premier Horgan calls jumping COVID vaccine queue ‘un-Canadian’

Horgan says most people in B.C. are doing their best to follow current public health guidelines

Prime Minister Justin Trudeau, left, and Vancouver Mayor Kennedy Stewart share a laugh while speaking to the media before sitting down for a meeting at City Hall, in Vancouver, on Friday August 30, 2019. (THE CANADIAN PRESS/Darryl Dyck)
Vancouver mayor, Health Canada to formally discuss drug decriminalization

Kennedy Stewart says he’s encouraged by the federal health minister’s commitment to work with the city

Downtown Fernie is pictured after a snowfall.
B.C. Premier John Horgan speaks at B.C. legislature on the province’s mass vaccination plan for COVID-19, Jan. 22, 2021. (B.C. government)
COVID-19 quarantine not an option for B.C., John Horgan says

Apres-ski parties increase risk, not interprovincial travel

Most Read