SPRINGFIELD, Ill. (Legal Newsline) - Ricola faces the creation of a class of Illinois consumers allegedly misled into believing its cough drops provide relief through the Alpine Swiss herbs they contain.
An Illinois federal judge recently gave her approval to claims made under the Illinois Consumer Fraud and Deceptive Business Practices Act in a lawsuit filed by attorney Spencer Sheehan and his plaintiff, Lacie Davis.
Sheehan lost many of his other claims in that ruling but can now proceed with the creation of a class of Illinois consumers who were allegedly tricked into thinking the herbs provided any benefit. The lozenges get their cough-suppressant function from menthol.
Ricola discloses menthol is the active ingredient on the back label, but the lawsuit says buyers would think Ricola lozenges are different from others because they boast to have Alpine Swiss herbs.
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 waived claims under the consumer fraud acts of Arkansas, Iowa, Maine, Montana, New Mexico, North Dakota, Ohio, Utah, Virginia and Wyoming to pursue the Illinois claims.
Judge Sue Myerscough previously 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.
Sheehan says he can prove damages to each consumer by pointing to the price premium shoppers paid for Ricola lozenges over others. More than 40% of the target market believes the medical benefits from Ricola lozenges come from the herbs, Sheehan's expert says.
"Plaintiff seeks to recover the price overpaid for nonexistent product attributes, that the cough drops' oral anesthetic and cough suppressant functionality were provided by the 10 Swiss herbs pictured on the front label, rather than only by menthol," he wrote in a July 28 motion for class certification.
Ricola's motion to dismiss pointed at recent losses by Sheehan, 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.”