SPRINGFIELD, Ill. (Legal Newsline) - Ricola hopes to strike an expert who will testify that consumers were deceived by its claim its cough drops are different from others because they contain Alpine Swiss herbs.
The proposed class action says those Alpine Swiss herbs add nothing to the product despite being the key point of Ricola's marketing. Lawyer Spencer Sheehan and his plaintiff Lacie Davis say the active ingredient is menthol, just like most cough drops.
The complaint alleges consumers spend more on Ricola cough drops because they are misled into thinking the Alpine Swiss herbs bring something that others don't. Sheehan's case has survived a motion to dismiss and currently faces a motion for summary judgment, while his motion for certification of class is pending.
Ricola on April 19 in Illinois federal court filed a motion to exclude expert Andrea Lynn Matthews from offering testimony regarding consumer deception. Matthews conducted a survey the company calls "flawed."
Ricola says scientific tests have shown the product is 100% derived from menthol herbs. The questions Matthews posed, however, asked consumers about their feelings on a product that contained a synthetic menthol ingredient.
"Hence, her consumer testing (in addition to other flaws, such as failing to show respondents the entirety of the labeling at issue) was simply not designed to address consumer preferences related to the actual active ingredient in the product - herbal menthol," the motion says.
Ricola points out Matthews' testimony was struck in a case against Bimbo Bakeries over "all butter' loaf cake because it relied on a false assumption that the cake's flavor came from ingredients other than butter.
"The Matthews Study here suffers from a nearly identical flaw, rendering it irrelevant to the consumer deception issues before the jury," Ricola wrote.
"In designing her survey questions, Dr. Matthews did not bother to delineate between herbal menthol and and synthetic menthol because she incorrectly assumed that the menthol in the product was synthetic."
Sheehan and Davis are pursuing claims under the Illinois Consumer Fraud and Deceptive Business Practices Act.
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.