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We have a weakness for holiday-themed posts, so it’s a pity the recent Vicks Vitamin C case didn’t come out around Mother’s Day. You’ll see why in a few short paragraphs.
The case, Loreto v. Procter & Gamble, No. 1:09-cv-815 (N.D. Ohio Sept. 3, 2010), was a class action claiming that Defendant misled consumers by advertising that the Vicks NyQuil and DayQuil cold remedies were better because they contained vitamin C. In a nicely written opinion, the judge dismissed the case with prejudice because Plaintiffs weren’t alleging any lie or injury. Rather, Plaintiffs were merely asserting a technical violation of the Food Drug and Cosmetic Act, for which there is no private right of action.
The case has already been summarized in Product Liability 360, but there are a couple of additional points worth highlighting. The case is more interesting for what Plaintiffs were NOT alleging than for what they were alleging:
— Plaintiffs weren’t claiming that NyQuil and DayQuil were ineffective in alleviating the symptoms of a cold. (Nor could they. This is by no means a paid advertisement, but we’ve been using NyQuil and DayQuil since Carter was President, and we haven’t yet met anyone who denies that these products work.)
— Plaintiffs weren’t saying that the products lacked vitamin C.
— Plaintiffs weren’t saying that vitamin C made the products less effective.
No, all Plaintiffs contended was that the ads suggested that vitamin C would confer a benefit, which, according to Plaintiffs, was a lie because the FDA later issued a warning letter concluding there was no study conclusively demonstrating that vitamin C would help. But as with Plaintiffs’ allegations, what the FDA did NOT say was as important as what it did say. The FDA did not say that vitamin C was not beneficial. In fact, the FDA recognized that “some data tended to favor [vitamin C’s] effectiveness for treatment of cold symptoms but an adequate dosing regimen could not be proposed.” Loreto, slip op. at 19. When the FDA stated that the combination of the Vicks products plus Vitamin C was not recognized to be “safe and effective for their intended uses,” that was not a literal finding of inefficacy but was, instead, a technical finding regarding sufficiency of the data. If we tell you that reading this blog will make you smarter, that’s not a lie just because we lack a randomized, placebo-controlled, double-blind study. (Though we’re working on it.) Because there was no lie, Plaintiffs were reduced to asserting a right of private action under the FDCA — a blatant no-no. Plaintiffs’ factual allegations of falsity in this case do not extend beyond the FDA’s warning letter. Loreto, slip op. at 17. It doesn’t matter whether the cause of action was dressed up as a claim under some other statute or theory: “A purported state-law claim does not exist where the ‘claim is in substance (even if not in form) a claim for violating the FDCA — that is, when the state claim would not exist if the FDCA did not exist.'” Id. at 15, quoting Riley v. Cordis Corp., 625 F. Supp. 2d 769, 777 (D. Minn. 2009).
We can believe all sorts of medical-scientific facts even in the absence of conclusive evidence. Indeed, we can harbor such beliefs even when people (or governments) keep telling us that such conclusive evidence does not exist. It doesn’t mean we’re deceived or that we’re boobs. We are free to choose different conclusions. (Yes, we know the old Daniel Patrick Moynihan adage about how people are free to enjoy their own opinions but not their own facts. Conclusions derived from facts are something else.) Mom gave us chicken soup well before any peer-reviewed journal blessed it. And it seemed to work.
Which brings us to our favorite part of the Loreto case. Plaintiffs based their claims on a “television, Internet and print advertising campaign” containing “tips from America’s favorite television moms, such as Florence Henderson, Shirley Jones and Meredith Baxter on how they care for their loved ones during the cold and flu season.” Loreto, slip op. at 7. Marion Ross (the mom on Happy Days) was “especially excited because Vicks is bringing together DayQuil and NyQuil, to help relieve multiple cold symptoms, with Vitamin C to replenish what your body needs.” Id.
First of all — wow. That really is an impressive roster of tv moms. Maybe even authoritative. We could quibble. Where’s Mrs. Winslow of Family Matters? She was way more tolerant of Steve Urkel than most of the moms in our neighborhood would have been. Marge Simpson, too, endures so much in taking care of her dysfunctional family. No Barbara Billingsley? Really? One of our colleagues had some unkind things to say about Mrs. Brady, but we still think it’s a good list. (What would a list of Bad Moms look like? Television seems to have steered clear of that tricky subject. You can find them in great literature, such as Oedipus or Hamlet. You can certainly find them in the movies — Mommie Dearest, or Angelica Huston in The Grifters. And you’d better not forget the baddest mother of all, Samuel L. Jackson in Pulp Fiction.)
There are many cases where plaintiffs claim that advertising is deceptive and overpowering and most of the time those claims are pure hooey. But bring in Mom, and now you’re talking. We probably do trust Mom on just about anything, even on medical matters, and even if she made us wear socks filled with onions when we had a fever. The fact is that the moms in the Vicks campaign were not lying. And how dare you suggest they were?! Did the judge consider awarding sanctions against the mom-bashers? Maybe at least a time-out?
Plaintiffs lobbed in some other claims, but they all foundered on the same grounds: lack of deception and lack of injury. Plaintiffs claimed they would not have purchased the products had they “been aware of the fact … that it was illegal for P&G to sell” them. Loreto, slip op. at 20. That claim is wildly improbable (it’s like adult plaintiffs in cigarette cases claiming they wouldn’t have bought cigarettes if they knew the companies had some internal documents that discussed youth smoking) and in any event, is just another attempt to ride piggy-back on the FDA warning letter. Plaintiffs also submitted the tired old consumer fraud claim that the price charged for the misrepresented product “‘was higher than it should have been as a result of defendant’s fraudulent marketing campaign.'” Id. at 22. Such a claim is usually followed by an “expert” affidavit with shady calculations and stratospheric sums. But, as the Loreto court held, there is no need to go there because “[a] consumer has not suffered ascertainable loss where that consumer gets what he/she paid for.” Id. at 21. Nowhere in the Complaint was there any factual allegation that Plaintiffs did not get what they were told and did not “receive any represented benefit.” Id. at 23.
In other words, maybe those moms were right after all.