SPRINGFIELD, Ill. (Legal Newsline) - The lawsuit over Ricola cough drops has failed, as a federal judge says the plaintiff who used them for 20 years before finding a lawyer on Facebook hasn't shown she was harmed by claims they are "Made With Swiss Alpine Herbs."
Lawyer Spencer Sheehan and plaintiff Lacie Davis alleged consumers paid more for Ricola products than they would have, had they'd known the key cough-suppressant ingredient is menthol.
Those Swiss Alpine herbs do nothing but trick consumers into thinking Ricola cough drops are superior to others, the lawsuit said. But Illinois judge Colleen Lawless granted summary judgment to Ricola on Sept. 26, finding Davis lacked standing.
"To the extent that Plaintiff suggest she and other consumers were deceived by paying premium prices for synthetic menthol or for a product that did not include Swiss Alpine herbs, the undisputed evidence establishes that the active ingredient is in fact herbal," Lawless wrote.
"The record establishes that Plaintiff paid for and received a cough suppressant and oral anesthetic with an active herbal ingredient."
Sheehan's case survived an initial motion to dismiss and he had hoped to make it a class action, but his motion for certification was rejected. He was pursuing claims under the Illinois Conumer 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.
When Ricola filed its motion for summary judgment last year, it noted Davis had been happy with the cough drops for 20 years before reaching out to Sheehan after seeing his ad on Facebook.
"Before filing this lawsuit, Plaintiff purchased the product for 'over 20 years,'" Ricola wrote, citing her testimony. "Over that time period, she purchased the product approximately 600 times and never had a problem with the product.
"In early 2022, Plaintiff was scrolling through Facebook and saw an advertisement from her attorney in this case seeking named plaintiffs for a lawsuit against Ricola."
Sheehan has been called a "wrecking ball" by a federal judge and has drawn criticism from others frustrated with the novel theories of consumer deception he has employed to file hundreds of class action lawsuits.
Sheehan first gained notoriety as the "vanilla vigilante," filing a host of lawsuits that claimed vanilla flavoring in products did not contain traditional vanilla.
Sheehan has sued because the strawberry flavoring in Pop-Tarts comes from pears and apples and is dyed red. He complained Bagel Bites have cheese that is a blend made with skim milk and feature tomato sauce that contains ingredients consumers wouldn't expect (the judge hearing that case called his claims "unreasonable and unactionable").
Last year, he lost a lawsuit that said the fudge in fudge-covered Oreos should adhere to traditional definitions of "fudge" by containing more milk fat and not palm oil and nonfat milk.
He faces civil contempt proceedings in New York, plus a lawsuit filed against him by Ashley Furniture for naming it as a defendant in a lawsuit that had nothing to do with the company.
And he's on the hook for $140,000 in attorney fees incurred by Big Lots to defeat a Florida class action that made the same claims as an earlier loser in New York had made.