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Inside the lawsuit against the maker of Cold-fX

A Q&A with the lawyer who alleges Valeant, the maker of Cold-fX, misled consumers about the short-term effectiveness of the cold and flu remedy


 
Products from Cold-FX, now owned by Valeant Pharmaceuticals, are shown on a drug store shelf in Toronto August 25, 2011. (Mike Cassese/Reuters)

Products from Cold-FX, now owned by Valeant Pharmaceuticals, are shown on a drug store shelf in Toronto August 25, 2011. (Mike Cassese/Reuters)

John Green is the 37-year-old Vancouver litigator who this week applied to get a class action certified against Valeant Pharmaceuticals, the makers of Cold-fX, the popular cold and flu remedy. The native of Mission, B.C., a former varsity swimmer, was first called to the bar in Ontario, where he clerked for Court of Appeal Justice Robert Decary, before returning to B.C., where he specializes in drug cases.

Valeant has been hit by a series of controversies that have hammered its reputation, and its share value—down 90 per cent since last summer—leading the CEO of the embattled Montreal drugmaker to announce he will step down.*

The allegations in the lawsuit have not been proven in court. The Laval, Que.-based company says it will fight the application for class-action certification. “Valeant believes the suit is without merit and is vigorously defending this matter.”

Q: How did this case find you?

A: I’d had an inkling there were concerns with the product; then, I watched a [CBC] Marketplace program on the drug. I managed to track down some of the people who bought the product, and wanted to try to get their money back.

Q: What does the lawsuit allege?

A: That people were told that Cold-fX offered immediate relief of cold and flu symptoms when there was no research showing that it did. In fact the company’s own research, a study conducted in 2004, showed it did not relieve cold and flu symptoms. In legal terms, we’re alleging fraud—fraudulent misrepresentation—and breach of the misleading practices section of the Competition Act.

Q: What did the 2004 study show?

A: That this product was less effective than a placebo.

Q: Is the research suggesting this drug does less than nothing?

A: The study showed that a sugar pill was more effective than Cold-fX, which was also potentially harmful to those who took it. The company should have told people what the product really did on the packaging. If that happened, they might not have bought it.

Q: How did you find that 2004 study?

A: In a class action, the defence has to file evidence in opposition to it. For whatever reason, the study was in there.

Q: What?

A: I didn’t even notice [the study results] when I first went through the evidence—there were literally hundreds of thousands of pages of filings.

Q: Do people who sign onto the lawsuit need receipts for Cold-fX?

A: No—they just need to say they bought the product. People paid money for a worthless product. And the money they spent should be returned.

Q: What do you make of all the celebrity endorsements for Cold-fX over the years, particularly from the hockey community?

A: It’s appalling that celebrities—Olympians, people who represent Canada—would allow themselves to be used by a drug company, and urge people to buy a product they know absolutely nothing about. I’m a hockey fan; I play hockey. It’s unfortunate how hockey players and the NHL allowed themselves to be used in this way.

Q: Who is paying you?

A: No one. I’m taking this out of my two-year-old’s education fund.

Q: So why do it?

A: If companies know they can get away with this sort of thing, they will. They’re selling this product to kids as young as 12. How long before some kid with an allergy to ginseng takes the product and gets sick, and dies? When there is no proven benefit, why take this risk?

Q: What do you think of Health Canada’s role in all this?

A: I think they do a terrible job at regulating natural health products. Health Canada has recorded adverse effects associated with Cold-fX.

Q: Has Health Canada ever done anything about Cold-fX, given adverse reactions to it?

A: Nothing I’m aware of. In a recent ruling, a Canadian judge said Health Canada was just a “filing agency.”


CORRECTION, 6 April 2016: The original version of this article said Valeant’s CEO stepped down recently. Michael Pearson has announced he will step down, but holds the title of CEO until his successor is named. Maclean’s regrets the error.


 

Inside the lawsuit against the maker of Cold-fX

  1. The fact is that if you take a cold remedy your cold will be gone in 7 days; if not, it will last a week. There are a plethora of non-prescription products with various claimed health benefits (including carrots); the surprising and unusual thing in this case is that apparently the manufacturer actually tested the product for efficacy. The salient difference is that hot lemon and honey is not patented although, according to the rules, a patent must teach an invention that is useful.
    On the other hand, it should be noted that prescription medications can have limited or selective efficacy and are often approved on marginal benefits shown in clinical studies; presumably, even a minimal improvement in patient outcome may be seen as sufficiently beneficial. What is also lost in the buzz of advertising is that any given medication has specific effects that likely only apply to some specific conditions while OTC remedies are generally selected by the consumer i.e. not an expert opinion. One example is a certain pain medication heavily advertised as a remedy for arthritis pain when clinical study suggests that the main ingredient is only effective for osteo-arthritis (there are many forms of arthritis); the consumer is left to make this distinction and, if they guess wrong, choose this over another medication with a more appropriate pain reliever. Another problem is that many medications may be safe for occasional use but not chronic use – not a very attractive market proposition. Perhaps it might help if medical professionals were more proactive about prescription of non-prescription ‘medications’.

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