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Vicks’ Vitamin C Products Avert False Advertising Claims Judgment

4 Feb, 2014 By: Arthur Yoon, Jeffrey Richter


An advertiser that advertises consumer products on its website must be truthful and have evidence to back up any efficacy claims concerning product advertising statements. In a consumer class action lawsuit filed against Procter & Gamble Co. (P&G) in Ohio – Loreto v. P&G, Case No. 1:09-CV-815 – a federal district court considered the issue of whether P&G made a false and misleading advertising statement in violation of New Jersey’s Consumer Fraud Act when it stated, “Vitamin C: It won’t cure a cold, but vitamin C can help blunt its effects” on its website, which included Web pages that advertised P&G’s Vicks DayQuil Plus Vitamin C and NyQuil Plus Vitamin C products.

The plaintiffs alleged that the company’s website, www.vicks.com, contained the “blunt its effects” statement that P&G used to promote the products when it introduced them into the market. Citing the Food & Drug Administration’s (FDA) 1976 OTC Drug Review, which specifically found that Vitamin C was not a safe and effective treatment for the common cold, the plaintiffs contended that there were no studies demonstrating that Vitamin C is unequivocally effective for the prevention or treatment of the common cold. The plaintiffs claimed that they relied upon P&G’s false and misleading representations that the added Vitamin C in the products would help blunt the effects of a cold.

P&G countered the plaintiffs’ claims by providing the court with all of the packaging and advertisements for the products that showed that the statement at issue never appeared in any of the actual advertisements for the products. Rather, the subject statement only appeared on the Vicks.com “tips” pages. The web pages presented by P&G showed that the statement appeared on a page embedded in the “StayWell” section of the Vicks.com website, for a period of months, with numerous other general health and wellness “tips” suggesting, among other things, that people keep their hands clean, get flu shots, use antibacterial wipes, take zinc, drink tea with honey, and eat chicken soup.

P&G also provided page view records showing that the “tips” page only received 2,167 page views during the entire time it was on the Vicks.com website. Thus, only a few thousand people at most, and not necessarily any New Jersey residents who purchased the products, were ever even exposed to the statement.

After considering the plaintiffs’ and P&G’s arguments, the court concluded that the majority of consumers who purchased the products – in New Jersey or elsewhere – did not have legal standing to maintain the false advertising claim against P&G because they did not suffer an injury that is causally connected to the statement at issue. Moreover, the vast majority of, if not all, plaintiffs would lack standing to sue because they were never even exposed to the “blunt its effects” statement and therefore could not have suffered an injury, let alone one that is causally connected to that statement. Individual inquiries of each class member of the lawsuit 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.

While the “blunt its effects” statement may be misleading and may have been made without any credible scientific substantiation, the court reasonably concluded that such an isolated reference, made in the context of unbranded health and wellness tips, was not linked by context or meaning to the actual advertisements of the products. Accordingly, the court dismissed the plaintiffs’ false advertising claims against P&G.

Jeffrey Richter and Arthur Yoon are attorneys at Blank Rome LLP. They can be reached at (424) 239-3400 or via E-mail at jrichter@blankrome.com and ayoon@blankrome.com.


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