SPRINGFIELD, Ill. (Legal Newsline) - Despite calling a class action lawsuit against it "implausible and absurd," cough drop-maker Ricola will have to face at least two of the nine claims made in it.
Illinois federal judge Sue Myerscough on Sept. 9 granted the company's motion to dismiss seven of nine arguments made in a lawsuit that alleges Ricola tricks customers into thinking its Alpine Swiss herbs have a cough-suppressant function that sets them apart from similar products.
But attorney Spencer Sheehan will get to pursue claims made under the Illinois Consumer Fraud and Deceptive Business Practices Act and for unjust enrichment. Not disclosing on the front label that menthol is the active ingredient responsible for helping with coughing is sufficient for making an ICFA claim.
"Here, Ms. Davis alleges that she purchased Ricola lozenges for what she believed was their herbally derived therapeutic properties. Ms. Davis further alleges that, but for Ricola’s omission from its lozenges’ front label of any mention of menthol, she and other consumers would have purchased a competitor product," Myerscough wrote.
"This claim falls within ICFA’s scope."
Myerscough also held the claim for deception can proceed despite the disclosure of menthol as the active ingredient on the back label, citing a Seventh Circuit ruling involving "100%" parmesan cheese that told customers on the back it was about 10% made of anti-caking and anti-mold agents.
On Ricola lozenges, an herb mixture is listed as an inactive ingredient. Herbs in the mixture include elder, horehound, hyssop, lemon balm, linden flowers, mallow, peppermint, sage, thyme and wild thyme.
Sheehan will be able to file an amended complaint to address concerns Myerscough had with other claims she dismissed, though his claim for negligent misrepresentation was dismissed with prejudice.
Spencer Sheehan has drawn considerable media attention as an attorney taking on the food industry with novel ideas for class actions, like the fudge in cookies not adhering to the traditional definitions of fudge and the strawberry-flavored filling in Pop-Tarts being made from pears and apples and dyed red.
Ricola's motion to dismiss pointed at recent losses like a case that alleged Bagel Bites have cheese that is a blend made with skim milk and tomato sauce that contains ingredients consumers wouldn't expect.
“Plaintiff’s theory is implausible and absurd,” Ricola's June 21 motion to dismiss says. “It is undisputed that the Ricola product is made with Swiss alpine Herbs. Ricola never makes any representation about the function of these Swiss Alpine Herbs.”