ROCHESTER, N.Y. (Legal Newsline) - A federal judge will throw out a class action lawsuit that claimed people who bought flavored Alka-Seltzer Plus cold medicine were tricked by pictures of lemon and honey on the package.
U.S. District Judge Elizabeth Wolford on March 18 threw out the lawsuit brought by lawyer Spencer Sheehan and plaintiff Patricia Donadio, who claimed consumers expected the product to contain honey and lemon ingredients.
"In this case, a reasonable consumer would not understand the phrase 'Honey Lemon Zest' and pictures of a lemon wedge and a honey dipper, on a visually and spatially distinct section of the package from the active ingredient list, to indiate that honey or lemon are present in the medication in non de minimis amounts," Wolford wrote.
"Instead, a reasonable consumer would not understand that the phrase 'Honey Lemon Zest' - which is not itself the name ofo an ingredient found in nature - refers to the flavor of the medication."
Sheehan has gained notoriety for his theories of consumer deception, which have angered judges and companies forced to spend money defending themselves. He faces sanctions in another case in New York, while one of his former targets has sued him in Florida state court for suing it when they had no connection to the case.
Wolford did not allow an amended complaint in the Alka-Seltzer case, instead entering judgment with her order.
Donadio claims in her class action that Bayer's Alka-Seltzer Plus "Severe Cold & Flu" powder packets products are misleading and labeled so that consumers expect the product to contain honey and lemon ingredients. Specifically, Donadio alleges the package displays the "wedge of fresh lemon and a dripping honey dipper" with the words "honey lemon zest" next to a graphic of a "cup of steaming tea."
She claims neither of the product's active or inactive ingredients are honey or lemon zest. Donadio alleges Bayer's deceptive labeling leads consumers to believe they are purchasing a more natural product with therapeutic benefits and one that contains vitamin C from a lemon that would improve their health and immunity. She claims Bayer's misleading and deceptive labeling also causes consumers to pay more for the product and that Bayer knew the attributes and representations about the product are false.
“We are pleased with the court’s decision to dismiss this case, which recognizes that the plaintiff’s claims had no merit," Bayer said in a statement.
"The product packaging and advertising claims regarding the 'Honey Lemon Zest' flavored Alka-Seltzer Plus Cold & Flu products are accurate and consistent with FDA requirements.”