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From Health Law Daily, November 13, 2015

Court oscillates, denies class certification, but allows individual claims against Oscillo® manufacturer

By Bryant Storm, J.D.

Class certification was denied to a group of consumers challenging the labeling and efficacy of a homeopathic flu remedy called Oscilloccinum® (Oscillo®). A district court held that the consumer seeking to be the class representative could not obtain injunctive relief against the manufacturer and was not eligible for class certification because of a lack of future harm and a previous settlement offer made by the manufacturer. The court explained that the consumer could not be the class representative for a damages class because he was offered a settlement that exceeded any refund he could have obtained and any actual damages he incurred. However, the court reasoned that the consumer could proceed with his individual claim for damages (Conrad v. Boiron, Inc., November 12, 2015, Hart, W.).

Oscillo. A consumer filed a putative class action under an Illinois fraud statute seeking injunctive relief and damages from Boiron, Inc. and Boiron USA, Inc. (Boiron) on the grounds that the manufacturer made false claims in the labeling of its homeopathic flu remedy, Oscillo. Specifically, the consumer alleged that Oscillo is essentially a sugar pill “because its active ingredient, Anas Barbariae (a combination of duck hearts and livers) is diluted so extensively in the homeopathic manufacturing process that there is no statistical possibility that even a single molecule of it remains in the final product.” The consumer sought to represent a class of consumers who purchased the Oscillo on or after July 28, 2012.

Settlement. Another action based upon Oscillo labeling in the Southern District of California resulted in a settlement that provided reimbursements for past purchasers of Oscillo, labeling changes, and a refund program where future customers could obtain refunds within 14 days of purchasing Oscillo.

Harm. Boiron moved to dismiss the claims for injunctive relief on the grounds that an injunction was improper because the consumer stood at no risk of future harm because he aware of the inefficacy of Oscillo and would not purchase the product again. The court agreed and held that, because of the lack of future risk, the named consumer could not obtain injunctive relief.

Regarding the class certification, the court held that the consumer could not be a class representative because, as the result of a separate litigation, he had the opportunity to take part in the refund program and was offered a settlement of $25 plus reasonable attorney fees and costs. The court explained that the settlement offer exceeded “any refund he could have obtained as well as any actual damages that he suffered.” Because the consumer was eligible for the settlement relief, the court reasoned that he could not be an adequate class representative of a damages class.

Individual claims. However, because the previous settlement offer would have foreclosed the consumer’s opportunity to appeal his claims, the court held that the previous offer, if it remained open, was not an offer of “full relief.” Additionally, the court held that the consumer’s complaint adequately alleged that Boiron falsely misrepresented the nature of Oscillo. Thus, the court reasoned, that the consumer could proceed with his individual damages claims. Although Boiron argued that the matter should be deferred to the FDA because of preemption under the Food, Drug, and Cosmetic Act (FDC Act) (21 U.S.C. § 335a(a)), the court held that preemption did not apply to the case.

The case is No. 13 C 7903.

Attorneys: Joseph J. Siprut (Siprut PC) for Chad Conrad. Christina G. Sarchio (Orrick, Herrington & Sutcliffe LLP) for Boiron, Inc. and Boiron USA, Inc.

Companies: Boiron, Inc.; Boiron USA, Inc.

MainStory: TopStory CaseDecisions FDCActNews AdvertisingNews DrugBiologicNews FraudNews LabelingNews SafetyNews IllinoisNews

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