St. Clair County Circuit Judge Lloyd Cueto has allowed a class action over CVS Pharmacies Inc.'s version of "Airborne," to go ahead.
Cueto entered his certification order in a class led by lead plaintiff Iean Finley on Jan. 25. Cueto heard arguments Jan. 11.
The suit is one of several pending in St. Clair County over the generic forms of the popular immunse system supplement. All of the suits were filed by Finley's legal team, Freed & Weiss LLC of Chicago and Becker, Paulson, Hoerner and Thompson P.C. of Belleville.
Defendants in the other suits include K-Mart and Target.
The class action case against Target was expanded last year to potentially include claims from Minnesota, California and Florida.
According to the transcript of the Jan. 11 hearing, plaintiff's attorney Richard Burke of St. Louis argued that his client had more than proved that CVS knowingly misrepresented its "AirShield" as a supplement with the same effectiveness as Airborne.
The suit alleges that CVS committed fraud and violated the Illinois Consumer Fraud Act in selling the product knowing it did not work.
"It's snake oil," Burke told Cueto.
Burke cited proceedings against the company at the Federal Trade Commission that led to what he claimed was an admission by the company that it falsely marketed the drug's effectiveness.
Defense counsel Robert Phillips countered that the FTC proceeding was not an admission and that Finley himself admitted that he had not gone in the store to buy the CVS product at all.
He pointed to Finley's deposition that he had gone to the store to buy Airborne, hoping to ward off seasonal illness.
"He gets over to the shelf, he sees Airborne and then he sees my client's product and he realizes it's a few dollars cheaper," Phillips explained.
Cueto countered with a question about the product and the store's intent.
"Let's suppose he looked at the Airborne label that was there that day and he may have looked at your product as well. Isn't he going to see basically the exact same thing in a different language?" Cueto asked.
Phillips replied that Finley would not have seen the "exact same thing."
Cueto continued questioning the product's marketing and labeling.
"So when you say compare us to Airborne you're pointing somebody out to a specific product that you're telling the consumer you're as good as and perhaps better than that product and you're going to save a few bucks too," Cueto said.
"But what I'm not doing when I make that comparison is adopting, embracing any false advertising or statement," Phillips replied immediately after.
In Cueto's Jan. 25 order, the class is certified and consists of all people who bought AirShield from CVS in Illinois from Dec. 1, 2003 to Jan. 25, 2010.
Cueto notes that although CVS only sold AirShield in the state from May 2004 onward, there is an evidentiary question that will be resolved in discovery and the class definition can be amended as the case goes on.
Finley's suit asks for individual damages of not more than $75,000 per individual class member.
CVS is represented by Phillips and Robert Bassett.
The case is St. Clair case number 08-L-616.