ALBANY, N.Y. (Legal Newsline) - The maker of Halls cough drops is fighting back against a lawsuit that alleges consumers would think they permanently fix sore throats.
Plaintiff Joe Perugia and his lawyer Spencer Sheehan sued Mondelez Global in January in New York federal court, alleging the product's label is misleading because it promises to "relieve coughs and soothe sore throats" when the menthol in the lozenges are "short-lived."
No reasonable consumer would expect an over-the-counter cough drop to be a permanent cure, Mondelez says in a July 21 motion to dismiss. It takes issue with the plaintiff's contention the word "Temporarily" should be added to the front of the package.
"Such an interpretation is particularly unreasonable given that the rear side of the cough drops' label explicitly states that the lozenges 'temporarily relieve[] cough,'" the motion says.
The motion says Perugia has no standing to sue because he can't allege an injury.
"Plaintiff fails to articulate what he means by 'stronger and more effective,' nor does Plaintiff make any allegation about the actual effectiveness of the cough drops, whether in absolute terms or relative to other brands," the motion says.
"The complaint does not allege that the cough drops are actually less 'strong' or less 'effective' (whatever that may mean to Plaintiff) than other brands, nor does Plaintiff explain how - or even whether - he attempted any such brand comparisons. In other words, the harms to which Plaintiff alludes are entirely speculative."
The label is subject to the federal Food, Drug, and Cosmetic Act, preempting Perugia and Sheehan's state law claims, Mondelez adds. It says the lawsuit seeks to do "exactly what Congress forbids: enforce a new requirement that OTC cough drops must use the modifier 'temporarily' on their front labels."
The standard for such consumer deception cases - whether a "reasonable consumer" would be misled - also defeat Perugia's claims, Mondelez says. Consumers are familiar with the effects of lozenges, it says.
"In any event, courts routinely dismiss claims of consumer deception where clarifying language on the back of the product label discredits Plaintiff's theory of deception," the motion says.