A class-action complaint has been filed against the manufacturers of Oscillococcinum, a homeopathic product widely claimed to be a flu remedy. The complaint (shown below) charges that the product (a) is nothing more than a sugar pill, (b) has no impact on the flu or any symptoms that accompany it, and (c) contains no molecules of its allegedly active ingredient. The suit, filed in California against Boiron, Inc., Boiron USA, Inc., and Laboratories Boiron, asks the court to halt the challenged claims and award damages for violating consumer protections laws.
The “active ingredient” in Oscillococcinum is prepared by incubating small amounts of a freshly killed duck’s liver and heart for 40 days. The resultant solution is then filtered, freeze-dried, rehydrated, diluted 1/100 200 times, and impregnated into sugar granules. If a single molecule of the original substance could survive the dilution, its concentration would be 1 in 100200—a number vastly greater than the estimated number of molecules in the universe. Last year the FDA and FTC jointly warned a distributor that it was illegal to advertise Oscillococcinum “for fast relief of flu infection symptoms.”
The Newport Trial Group, which filed this suit, is pursuing a similar one against Boiron USA in connection with its marketing of Children’s ColdCalm, a homeopathic product claimed to relieve sneezing, runny nose, nasal congestion, sinus pain, headaches, and sore throat. In July, a federal court judge denied a motion to dimiss that case on grounds that the FDA has primary jurisdition and the court should defer to the government’s enforcement powers. After noting that the FDA has not required homeopathic products meet efficacy standards, the judge ruled that jurisdiction is proper becausethe agency has largely abdicated any role it might have had in creating such standards.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO
|HENRY GONZALES, individually, and
on behalf of all others similarly situated,
BOIRON, INC.; BOIRON USA, INC.;
Case No.: 37-2011-00095740-CUÂ·MT-CTL
CLASS ACTION COMPLAINT
Filed August 4, 2011
Oscillococcinum (the “Oscillo”) is nothing more than a sugar pill that Defendants falsely advertise has the ability to cure the flu. In reality, Oscillo has no impact on the flu or any symptoms that accompany the flu.
Accordingly, Henry Gonzales (“Plaintiff’) brings this lawsuit to enjoin the ongoing deception of thousands of California consumers by Defendants, and to recover the money taken by this unlawful practice.
II. THE PARTIES
1. Plaintiff Henry Gonzales (“Plaintiff’) is a resident of California who purchased Oscillo in California.
B. Boiron, Inc. and Boiron USA, Inc. Defendants.
2. Plaintiff is informed and believes, and upon such information and belief alleges, that Defendants Boiron, Inc. and Boiron USA, Inc. (“Defendants”) are Pennsylvania corporations that produce, market, and sell Oscillo, and do business in California.
C. Laboratories Boiron Defendant.
3. Plaintiff is informed and believes, and upon such information and belief alleges, that Defendant Laboratories Boiron (“Defendant”) is a French company that produces, markets, and sells Oscillo, and does business in California.
D. Doe Defendants.
4. Plaintiff does not know the true names or capacities of the persons or entities sued herein as DOES 1 to 25, inclusive, and therefore sues such defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the DOE defendants is in some manner legally responsible for the damages suffered by Plaintiff and the members of the class as alleged herein. Plaintiff will amend this Complaint to set forth the true names and capacities of these defendants when they have been ascertained, along with appropriate charging allegations, as may be necessary.
III. JURISDICTION AND VENUE
5. This Court has jurisdiction over all causes of action asserted herein.
6. Venue is proper in this Court because Plaintiff purchased the product in this County and because Defendants have received substantial compensation from sales in this County. Specifically, Defendants knowingly engage in activities directed at consumers in this County, and Defendants obtain substantial benefits from their scheme perpetrated in this County. Plaintiff has filed concurrently herewith the declaration of venue required by Civil Code Section 1780(d).
7. Defendants and other out-of-state participants can be brought before this Court pursuant to California’s “long-arm” jurisdictional statute.
8. Influenza kills approximately 500,000 people each year. In the United States alone, approximately 40,000 people die after contracting the flu each year.
9. The most recent pandemic, as declared by the World Health Organization (“WHO”), was an outbreak of the flu. The WHO classified this pandemic as a level 6, the highest level.
10. Defendants playoff of the widespread nature of the flu and the public’s justified fear of it by making false claims about purported efficacy characteristics of Oscillo in order to drive enormous sales of the worthless product. For instance, the front of the Product packaging places in bold letters the name of the Product – “Oscillococcinum”, directly below the statements “Flu-like Symptoms”, “Feeling Run Down”, “Headache”, “Body Aches”, “Chills”, and “Fever”. The package also claims, “No Side Effects”, “No Drug Interactions”, and “Non-Drowsy”.
11. Defendants advertise: that Oscillo is “medicine for headache, body aches, chills & fever”; that Oscillo will “slow down the spread of germs”; that “Oscillo[ ] has a long history of efficacy and safety”; and “[Oscillo] is the first flu medicine recommended by pharmacists”1.
1www.oscillo.com (last accessed August 2, 2011).
12. Defendants include numerous testimonials touting Oscillo without disclosing either the fact that the endorsers are paid or the actual results that can be expected.2
2www.osciullo.com/testimonials/ (last accessed August 2, 2011).
13. From the advertising done by Defendants regarding Oscillo, it would appear to be the perfect product to combat the flu. According to Defendants, Oscillo will take care of the flu within 48 hours3 with no possibility of any side effects or drug interactions and without making the patient drowsy.
3Oscillococcinum works rapidly, with 63 percent of patients showing “complete resolution” or “clear improvement” at 48 hours. (http://wvvw.oscillo.com/about/clinical-studies/)
14. Earlier this year, Plaintiff purchased Oscillo. He did so after reading, believing, and relying upon Defendants’ advertising. Plaintiff used Oscillo as directed, but did not obtain the promised results—Oscillo had no impact on Plaintiff s flu.
15. Unfortunately, Defendants fail to inform consumers of the truth regarding Oscillo and its purported active ingredient. The truth is that the listed active ingredient in Oscillo, Anas Barbariae Hepatis et Cordis Extractum, is neither active in combating the flu nor is it actually an ingredient in Oscillo.
16. Anas Barbariae Hepatis et Cordis Extractum is a fancy way for Defendants to hide the truth from the general public. The truth being that Anas Barbariae Hepatis et Cordis Extractum is actually Muscovy Duck Liver and Heart.
17. Anas Barbariae Hepatis et Cordis Extractum has no known medicinal quality, further, in the extreme dilution claimed by Defendants, it has no impact on the human body whatsoever because it is not present in Oscillo.
18. Defendants claim that the active ingredient in Oscillo, Anas Barbariae Hepatis et Cordis Extractum, is diluted to 200CK. This dilution indicates that for every part of Anas Barbariae Hepatis et Cordis Extractum in Oscillo, there is 1^399 parts of the inactive ingredient, sugar. Written out in long form, this results in a ratio of
19. At this purported ratio, the probability of getting 1 molecule of the active ingredient of Oscillo in a regular dosage is approximately equal to winning the Powerball every week for an nearly an entire year. Simply stated, there is no trace of the purported active ingredient in Oscillo. Oscillo is nothing more than sugar (85% sucrose and 15% lactose).
20. Defendants are fully aware that there is no Anas Barbariae Hepatis et Cordis Extractum present in Oscillo. In an interview with the U.S. News and World Report, Defendants stated, “[o]f course its safe. There’s nothing in it.”4
4McGraw, Dan. “Flu Symptoms? Try Duck?” U.S. News and World Report 9 February 1997.
21. Succinctly stated, Oscillo does not, cure, relieve, or in any way treat the flu.
22. Defendants sell Oscillo for approximately $10 per unit based on the preceding false advertising claims. As a result, Defendants have wrongfully taken millions of dollars from California consumers.
23. Accordingly, Henry Gonzales brings this lawsuit to enjoin the ongoing deception of thousands of California consumers by Defendants, and to recover the funds taken by this unlawful practice.
V. CLASS ACTION ALLEGATIONS
24. Plaintiff brings this class action for damages and other monetary relief on behalf of the following class:
All persons located within California who purchased Oscillo at any time during the four years preceding the filing of this Complaint (the “Class”).
25. Excluded from the Class are governmental entities, Defendants, any entity in which defendants have a controlling interest, and Defendants’ officers, directors, affiliates, legal representatives, employees, co-conspirators, successors, subsidiaries, and assigns. Also excluded from the Class is any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff.
26. The proposed Class is so numerous that individual joinder of all its members is impracticable. Due to the nature of the trade and commerce involved, however, Plaintiff believes that the total number of Class members is at least in the tens of thousands and members of the Class are numerous and geographically dispersed across California. While the exact number and identities of the Class members are unknown at this time, such information can be ascertained through appropriate investigation and discovery. The disposition of the claims of the Class members in a single class action will provide substantial benefits to all parties and to the Court.
27. There is a well-defined community of interest in the questions of law and fact involved affecting the plaintiff class and these common questions predominate over any questions that may affect individual Class members. Common questions of fact and law include, but are not limited to, the following:
(a) Whether Defendants’ efficacy claims are accurate;
(b) Whether Defendants’ efficacy claims are properly substantiated;
(c) Whether Defendants have falsely represented that Oscillococcinum has benefits which it does not have; and
(d) Whether Defendants knew that the efficacy representations were false.
28. Plaintiff s claims are typical of the claims of the members of the Class. Plaintiff and all members of the Class have been similarly affected by Defendants’ common course of conduct since they all relied on Defendants’ representations concerning Oscillo and purchased the product based on those representations.
29. Plaintiff will fairly and adequately represent and protect the interests of the Class. Plaintiff has retained counsel with substantial experience in handling complex class action litigation. Plaintiff and his counsel are committed to vigorously prosecuting this action on behalf of the Class and have the financial resources to do so. Plaintiff has retained a law firm who is widely recognized as one of the most successful and effective class action litigators in California, and whose victories have been publicized on CNN, Fox News, MSNBC, and nearly every major California newspaper. The firm has also been certified as lead class counsel in similar class actions.
30. Plaintiff and the members of the Class suffered, and will continue to suffer, harm as a result of Defendants’ unlawful and wrongful conduct. A class action is superior to other available methods for the fair and efficient adjudication of the present controversy. Individual joinder of all members of the class is impracticable. Even if individual class members had the resources to pursue individual litigation, it would be unduly burdensome to the courts in which the individual litigation would proceed. Individual litigation magnifies the delay and expense to all parties in the court system of resolving the controversies engendered by Defendants’ common course of conduct. The class action device allows a single court to provide the benefits of unitary adjudication, judicial economy, and the fair and efficient handling of all class members’ claims in a single forum. The conduct of this action as a class action conserves the resources of the parties and of the judicial system and protects the rights of the class members. Furthermore, for many, if not most, a class action is the only feasible mechanism that allows an opportunity for legal redress and justice.
31. Adjudication of individual class members’ claims with respect to Defendants would, as a practical matter, be dispositive of the interests of other members not parties to the adjudication, and could substantially impair or impede the ability of other class members to protect their interests.
VI. CAUSES OF ACTION
FIRST CAUSE OF ACTION
VIOLATION OF CALIFORNIA CONSUMERS LEGAL REMEDIES ACT
(By Plaintiff and On Behalf of the Class as against All Defendants)
32. Plaintiff incorporates by this reference the allegations contained in the paragraphs above as if fully set forth herein.
33. Plaintiff has standing to pursue this claim as Plaintiff has suffered injury in fact and has lost money or property as a result of Defendants’ actions as set forth herein. Specifically, prior to the filing of this action, Plaintiff purchased Oscillo. In so doing, he relied upon Defendants’ marketing claims. He used Oscillo as directed, but the product has not worked as advertised, nor did it provide any of the promised benefits.
34. Prior to filing this action, Plaintiffs counsel mailed to Defendants, by certified mail, return receipt requested, the written notice required by Civil Code Section 1782(a). A copy of that letter is attached hereto as Exhibit 1.
35. Plaintiff filed the declaration of venue required by Civil Code Section 1780(d).
36. Defendants’ wrongful business practices constituted, and constitute, a continuing course of conduct in violation of the California Consumers Legal Remedies Act since Defendants are still representing that their product has characteristics, uses, benefits, and abilities which are false and misleading, and have injured Plaintiff and the Class.
37. Plaintiff and class seek:
(a) an order of this court enjoining Defendants from continuing to engage in unlawful, unfair, or deceptive business practices and any other act prohibited by law, including those set forth in the complaint, pursuant to California Civil Code Section 1780(a)(2);
(b) actual damages pursuant to Civil Code Section 1780(a)(1);
(c) punitive damages pursuant to California Civil Code Section 1780(a)(4) due to the fraudulent, malicious, and willful nature of Defendants’ conduct;
(d) statutory damages of no less than $1,000 per class member pursuant to California Civil Code Section 1780(a)(1);
(e) restitution pursuant to Civil Code Section 1780(a)(3); and
(f) any other equitable or legal relief that the Court deems proper pursuant to California Civil Code Section 1780(a)(5).
SECOND CAUSE OF ACTION
VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS
CODE SECTIONS 17200 ET SEQ. AND 17500 ET. SEQ.
(By Plaintiff and On Behalf of the Class as against All Defendants)
38. Plaintiff incorporates by this reference the allegations contained in the paragraphs above as if fully set forth herein.
39. Plaintiff has standing to pursue this claim as Plaintiff has suffered injury in fact and has lost money or property as a result of Defendants’ actions as set forth herein. Specifically, prior to the filing of this action, Plaintiff purchased Oscillo. In so doing, he relied upon Defendants’ marketing claims. He used Oscillo as directed, but the product has not worked as advertised, nor did it provide any of the promised benefits.
40. Defendants’ actions as alleged in this Complaint constitute an unfair or deceptive business practice within the meaning of California Business and Professions Code section 17200 in that Defendants’ actions are unfair, unlawful, and fraudulent, and because Defendants have made unfair, deceptive, untrue or misleading statements in advertising media, including the Internet, within the meaning of California Business and Professions Code sections 17500, et seq.
41. Defendants’ business practices, as alleged herein, are unfair because they offend established public policy and/or are immoral, unethical, oppressive, unscrupulous and/or substantially injurious to consumers in that consumers are misled by the claims made with respect to Oscillo as set forth herein.
42. Defendants’ business practices as alleged herein are unlawful because the conduct constitutes false marketing and advertising and other causes of action alleged herein.
43. Defendants’ business practices as alleged herein are fraudulent because they are likely to deceive customers into believing that Oscillo has properties that it in fact does not have.
44. Defendant’s business practices as alleged herein are unfair, deceptive, untrue, and misleading advertising pursuant to California Business and Professions Code section 17500, et seq. because Defendants have advertised Oscillo, including over the internet, in a manner that is untrue and misleading, and that is known to be untrue or misleading.
45. Defendants’ wrongful business practices constituted, and constitute, a continuing course of conduct of unfair competition since Defendants are marketing and selling their products in a manner likely to deceive the public.
46. Defendants’ wrongful business practices have caused injury to Plaintiff and the Class.
47. Pursuant to section 17203 of the California Business and Professions Code, Plaintiff and the Class seek an order of this court enjoining Defendants from continuing to engage in unlawful, unfair, or deceptive business practices and any other act prohibited by law, including those set forth in the complaint. Plaintiff and the Class also seek an order requiring Defendants to make full restitution of all moneys it wrongfully obtained from Plaintiff and the Class.
PRAYER FOR RELIEF
Wherefore, Plaintiff and members of the Class request that the Court enter an order or
judgment against Defendants as follows:
- Certification of the proposed classes and notice thereto to be paid by Defendants;
- Adjudge and decree that Defendants have engaged in the conduct alleged herein;
- For restitution and disgorgement on certain causes of action;
- For an injunction ordering Defendants to cease and desist from engaging in the unfair, unlawful, and/or fraudulent practices alleged in the Complaint;
- For compensatory, actual, general, statutory, exemplary, punitive, and any other damages legally available according to proof on certain causes of action;
- For both pre and post-judgment interest at the maximum allowable rate on any amounts awarded;
- Costs of the proceedings herein;
- Reasonable attorneys’ fees as allowed by statute; and
- Any and all such other and further relief that this Court may deem just and proper.
Dated: August 4, 2011
NEWPORT TRIAL GROUP
A Professional Corporation
Ryan M. Ferrell
Attorneys for Plaintiff and the Class
NEWPORT TRIAL GROUP
A Professional Corporation
Scott J. Ferrell, Bar No. 202091
Ryan M. Ferrell Bar No. 258037
895 Dove Street, Suite 425
Newport Beach, CA 92660
Tel: (949) 706-6464
This page was posted on August 18, 2011.