Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Ohio: Class claims dismissed against P&G over advertising for cold products containing Vitamin C, (Nov 18, 2013)

By Jody Coultas, J.D.

Consumers could not state false advertising claims against the Procter & Gamble Company (P&G) for allegedly advertising that Vitamin C could “blunt the effects” of a cold, the federal district court in Cincinnati has held (Loreto v. Procter & Gamble Co., November 15, 2013, Black, T.).

P&G advertising for its Vicks® DayQuil® Plus Vitamin C and NyQuil® Plus Vitamin C products stated that “Vitamin C: It won’t cure a cold, but vitamin C can help blunt its effects.” The consumers alleged that the advertising was false and misleading in violation of the New Jersey’s Consumer Fraud Act (CFA). Specifically, the consumers argued that there were no studies demonstrating that vitamin C is unequivocally effective for the prevention or treatment of the common cold.

P&G was granted dismissal of the claim. On appeal to the Sixth Circuit, the judgment was reversed. P&G now moves to strike the consumers’ class allegations because the class was overbroad, could not meet the commonality or typicality requirements, and individual issues predominated.

Further discovery and briefing on the certification issue would only postpone the inevitable conclusion that the putative class could not be certified, according to the court. The consumers argued that P&G’s motion to dismiss the class allegations was premature because there had not been sufficient discovery conducted. P&G provided all of the actual packaging and advertisements for the products, which demonstrated that the “blunt its effects” statement was not an advertising claim and did not appear in any of the advertisements or packaging for the products. The “blunt its effects” statement appeared only on Vicks.com “tips” pages, which included numerous other general health and wellness “tips.” The consumers did not contest or dispute the facts in evidence or identify any further discovery that could alter the fact that the “blunt its effects” statement did not appear in any of the advertising or packaging.

Because the allegedly false advertising did not appear on the products’ labels, the court held that the consumers did not suffer an injury as a result of the advertising. The majority of consumers who purchased the products did not have Article III standing because they did not suffer an injury that was causally connected to the statement that Vitamin C could help blunt the effects of a cold.

The class was also overbroad and could not be certified because most consumers never saw the allegedly false and misleading statement at issue, according to the court. Even if the court assumed that each of the 2,167 page views on the Vicks.com webpage represents a unique viewer, and that each of those individuals actually purchased the products, less than ¼ of 1% of all purchasers were exposed to that statement. Few, if any, class members in New Jersey were ever exposed to the “blunt its effects” statement.

Finally, individual inquiries of each class member would have been necessary to determine whether they saw the website and whether that statement played a role in their decision to purchase the products, according to the court. Federal Rule of Civil Procedure 23(a) required the consumers to show numerosity, commonality, typicality, and adequacy of representation. Here, commonality was lacking because there was no actionable representation that was uniformly communicated to all or most putative class members. Typicality of claims also could not be established because not every consumer saw the advertising.

The case is No. 1:09-cv-815

Attorneys: Joseph J. Braun (Strauss & Troy) for Richard Loreto. Mark Alan VanderLaan (Dinsmore & Shohl) for Procter and Gamble Co.

Companies: Procter & Gamble Co.

Cases: Advertising StateUnfairTradePractices OhioNews