Vicks DayQuil, SuperC Combo Pack Is Deceptively Marketed, Class Action Says [DISMISSED]
Last Updated on November 21, 2023
Kampmann v. The Procter & Gamble Company
Filed: January 22, 2023 ◆§ 1:23-cv-01021
Procter & Gamble faces a class action that alleges its sale of DayQuil “Severe Cold & Flu” and the SuperC vitamin C supplement in a “convenience pack” is misleading given that consumers falsely believe that vitamin C helps relieve cold and flu symptoms.
Illinois
November 21, 2023 – Vicks DayQuil, SuperC Combo Pack Lawsuit Dismissed
The proposed class action detailed on this page was dismissed on October 24, 2023.
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In a 23-page opinion and order granting Proctor & Gamble’s (P&G) motion to dismiss the case, U.S. District Judge James E. Shadid found that selling Vicks brand DayQuil and a SuperC vitamin C supplement in a combo pack is not misleading to reasonable consumers because packaging the two products together is not the same as claiming they serve the same purpose.
According to the judge, the plaintiff’s claims under the Illinois Consumer Fraud and Deceptive Business Practices Act don’t hold up because she failed to identify any misleading statements or material omissions made by the defendant about the combo pack.
For instance, “[the plaintiff] does not allege that P&G ever made any express statement that Super C alleviates cold and flu symptoms,” Judge Shadid wrote. The judge also pointed out that the back label of the SuperC supplements even contains a “clear” disclaimer stating that “this product is not intended to treat colds or flu.”
In her complaint, the plaintiff said she intends to purchase the combo pack again once she is provided “assurance” that its representations are consistent with its abilities — a request for injunctive relief Judge Shadid found “ill-defined and nonsensical, apparently filed with little thought.”
“What ‘assurances’ could convert Super C into a colds remedy, as Plaintiff claims this is the only reason to buy the co-packaged products?” the judge wrote. “Plaintiff has not alleged that she takes vitamin C in any form so what ‘assurance’ would induce her to buy it if co-packaged with DayQuil?”
Judge Shadid noted that the plaintiff’s counsel has been advised “on multiple occasions, by courts throughout the country” that a plaintiff has no standing for injunctive relief when they are aware of the defendant’s alleged deception and are no longer being injured by it.
The judge also pointed out that the plaintiff’s counsel has put forth a “barrage” of consumer fraud claims, including 65 cases in the Seventh Circuit alone.
Although Judge Shadid gave the plaintiff 14 days to file an amended complaint, court records show that she instead voluntarily dismissed her claims on October 27.
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Procter & Gamble faces a proposed class action that alleges its sale of DayQuil “Severe Cold & Flu” and the SuperC vitamin C supplement together in a “convenience pack” is misleading given that consumers falsely believe that vitamin C helps relieve cold and flu symptoms.
The 12-page case contends that because Procter & Gamble has co-packaged the products, consumers assume that SuperC, which contains “1,000 mg Vitamin C,” should be taken alongside DayQuil to alleviate cold and flu symptoms.
Although the DayQuil product contains three over-the-counter ingredients designed for cold and flu treatment, and despite the fact that many consumers believe vitamin C is beneficial in treating cold and flu symptoms, there is no evidence that vitamin C reduces in severity or duration any symptoms associated with these viral infections, the suit argues.
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According to the complaint, the three active ingredients in the cold-and-flu DayQuil, acetaminophen, dextromethorphan HBr and doxylamine succinate, have been approved by the Food and Drug Administration (FDA) to treat the symptoms listed on the product’s front label, which include “[h]eadache, fever, sore throat, minor aches & pains,” “[c]hest congestion. . .,” “[n]asal congestion, sinus pressure” and “[c]ough.” The front label of SuperC says that the product “helps replenish essential vitamins + provides a healthy energy boost,*” but fine print on the side of the package clarifies that the item “is not intended to treat colds or flu,” the lawsuit explains.
Per the suit, Procter & Gamble’s deceptive marketing strategy aims to mislead the majority of consumers, who falsely believe that vitamin C is effective in treating cold and flu symptoms. In fact, the FDA has warned Procter & Gamble that it is prohibited from adding vitamin C to its Vicks cold formulas since no studies have demonstrated that the ingredient effectively prevents or treats cold symptoms.
“Though some studies have shown that regularly taking vitamin C supplements may decrease the duration of cold and flu symptoms, consuming this after symptoms appear – for which consumers would seek the Product – has no effect,” the case reads.
Moreover, the filing elaborates that the FDA has considered allowing companies to sell two or more shrink-wrapped cartons together—but “only when it was clear to consumers that the two components were not intended to be used together for a common purpose, such as treating the symptoms of colds and flu.”
According to the case, Proctor & Gamble’s misrepresentations have allowed it to sell the daytime cold-and-flu convenience pack at a premium price, or approximately $13.49 for 12 DayQuil capsules and 14 SuperC capsules. If consumers had been aware that taking vitamin C along with DayQuil does not provide any additional cold and flu symptom relief, they would not have bought the products, or would have paid substantially less for them, the complaint asserts.
The lawsuit looks to represent anyone in Illinois, Utah, South Dakota, Kansas, Mississippi, Arkansas, Alaska or North Carolina who purchased the Vicks DayQuil & Super C Convenience Pack during the applicable statute of limitations period.
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Hair Relaxer Lawsuits
Women who developed ovarian or uterine cancer after using hair relaxers such as Dark & Lovely and Motions may now have an opportunity to take legal action.
Read more here: Hair Relaxer Cancer Lawsuits
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