ALBANY, N.Y. (Legal Newsline) -- A proposed class action lawsuit brought on behalf of consumers who think cough drops permanently cure their ailments has been settled after the maker of Halls lozenges moved to have it tossed out of court.
The stipulation of dismissal filed Aug. 18 puts an end to plaintiff Joe Perugia's lawsuit before the issue of whether a class of consumers should be certified was ever raised. Mondelez Global's July motion to dismiss said no reasonable consumer would expect and over-the-counter cough drop to be a permanent cure.
Perugia's lawyer is Spencer Sheehan, who has gained some measure of an infamy for his hundreds of theories of consumer deception.
Mondelez's motion to dismiss took issue with Sheehan'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 said.
The motion, filed in Albany, N.Y., federal court, said 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 said.
"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 added. It said 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 said. 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 said.