Cold-FX class-action suit claims false advertising

If you used a popular brand of cold and flu medicine in the last six years, you may be entitled to compensation — as long as a new class-action lawsuit is successful.

The class-action suit announced by Toronto law firm Tyr LLP Thursday, alleges the makers of the popular medication brand Cold-FX made “false, misleading, deceptive, or unconscionable advertising claims” in several of its products.

The firm is seeking reimbursement for Canadians who bought certain Cold-FX products from 2017 to 2023, among other restitutions. Meanwhile Bausch Health has denied any wrongdoing. Here’s what you need to know.

First filed in 2019, the lawsuit notes that packaging and social media profiles for the products include statements such as “clinically proven” and “proven by science” to help reduce cold and flu symptoms.

Defendants include Bausch Health Companies Inc. — formerly known as Valeant Pharmaceuticals — and its subsidiaries. Through its alleged false advertising, the lawsuit argues the companies breached Ontario’s consumer protection legislation, the federal Competition Act and the federal Food and Drugs Act.

Bausch denied it made any “false, misleading or deceptive statements,” or breached any of the laws the suit referred to, according to Tyr LLP.

According to Tyr LLP’s statement of claim, the products in question include: Cold-FX (regular and extra strength), ColdFX Daily Defence (regular and extra strength), Cold-FX Daily Support (regular, chewable, and extra strength), Cold-FX First Signs and Cold-FX First Signs Nighttime.

All people in Canada who purchased at least one of the listed products between Jan. 1, 2017, and Sept. 28, 2023, are included in the suit. You can join or optout of the class action on the firm’s website.

Bausch denied the allegations contained in the lawsuit that it made false or deceptive statements linked to Cold-FX.

“The defendants have never stated that Cold-FX products ‘prevent and cure’ colds and flu. Rather, the Cold-FX products have been accurately and fairly advertised, labelled, and otherwise marketed as having a ‘clinically proven formula’ or ‘clinically proven’ ingredients to ‘help to relieve’ symptoms … by, amongst other things, boosting the immune system,” the statement of defence reads.

It notes that Health Canada has approved Cold-FX products for sale as natural health products.

In a statement to the Star, a spokesperson for Bausch + Lomb, the Canadian distributor of Cold-FX, said: “We stand behind COLD-FX products and intend to vigorously defend against these allegations. Importantly, there is no claim of safety concerns.”

Tyr’s lawsuit was certified by the Ontario Superior Court of Justice in late 2021. A judge dismissed the defendants’ motion to appeal the certification in March 2022.

An individual in B.C. attempted to launch a class-action lawsuit against the company in 2012, again over its advertising. It was tossed by a judge in 2016 because it failed to prove there is an identifiable group of people with the same complaint.

The lawsuit notes that the “active ingredient” in the cold products is a ginseng extract.

“Although ginseng has long been promoted as a natural health product to address a wide-range of issues, from erectile dysfunction to immune system deficiency, its efficacy has never been proven by rigorous scientific tests, it is not a “drug” under Canada’s Food and Drugs Act … and it cannot be sold for the treatment or prevention of a disease or abnormal physical state,” the statement of claim reads.

These allegations follow years of scrutiny into Cold-FX. As CBC reported in 2016, one unpublished study found the ginseng-based products are no better at curing colds than a placebo. Notably, Health Canada approved the brand’s claims that its medication “helps reduce the frequency, severity and duration of cold and flu symptoms by boosting the immune system” in 2007.

According to Tyr LLP, their suit seeks full or partial reimbursement of the amounts customers paid to purchase select products, or a return of the profits the companies made on the products from January of 2017 to September of 2023.

It did not provide specifics on how much Canadians might get paid should the parties reach a settlement.

The suit also seeks a permanent ban on Cold-FX’s creators from marketing their products as “proven by science.”

“No decision on the merits of the allegations has been made by the Court,” Tyr added in a press release. “… The allegations will be determined at a future trial.”