3:22-cv-03071-SEM-KLM # 1 Page 1 of 15
`E-FILED
` Sunday, 08 May, 2022 01:25:36 AM
` Clerk, U.S. District Court, ILCD
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`
`SPRINGFIELD DIVISION
`
`Lacie Davis, individually and on behalf of all
`others similarly situated,
`
`3:22-cv-03071
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Ricola USA, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Ricola USA, Inc. (“Defendant”) manufactures, labels, markets, and sells cough
`
`suppressant and oral anesthetic lozenges “Made With Swiss Alpine Herbs” under the Ricola brand
`
`(“Product”).
`
`
`
`
`E-FILED
` Sunday, 08 May, 2022 01:25:36 AM
` Clerk, U.S. District Court, ILCD
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`
`SPRINGFIELD DIVISION
`
`Lacie Davis, individually and on behalf of all
`others similarly situated,
`
`3:22-cv-03071
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Ricola USA, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Ricola USA, Inc. (“Defendant”) manufactures, labels, markets, and sells cough
`
`suppressant and oral anesthetic lozenges “Made With Swiss Alpine Herbs” under the Ricola brand
`
`(“Product”).
`
`
`
`
`
`3:22-cv-03071-SEM-KLM # 1 Page 2 of 15
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`2.
`
`The other representations include “Ricola,” “Original Herb Cough Drops,” “Great
`
`Tasting,” “Effective Relief,” pictures of peppermint, elder, wild thyme, horehound, hyssop,
`
`mallow, sage, linden flowers, lemon balm and thyme, and a picture of an amber lozenge.
`
`I. HERBAL PRODUCTS MARKET
`
`3.
`
`The past thirty years has seen a steep increase in consumer consumption and usage
`
`of products containing herbal extracts.
`
`4. During this time, eighty percent of adults have used over-the-counter (“OTC”) drug
`
`products containing herbal ingredients at some point for their healthcare needs over
`
`pharmaceutical alternatives.
`
`5. According to Mintel, the herbal remedies market is over $10 billion per year and
`
`growing at over four percent per year.
`
`6. Almost half of Americans report using herbal remedies in the prior twelve months.
`
`7.
`
`Sixty-five percent of younger parents regularly select products with herbal
`
`ingredients for themselves and their children.
`
`8.
`
`This has caused the pharmaceutical industry to investigate more ways to use herbal
`
`ingredients in OTC products.
`
`9. Herbal ingredients are increasingly incorporated into OTC categories, including
`
`external pain relieving rubs, cough suppressants, muscle relaxants, digestive aids, and oral care.
`
`10. Herbal products are used by consumers to address the same issues traditional OTC
`
`products are, including common colds, coughs, muscle soreness and aches, sleep issues, and stress.
`
`II. REASONS FOR INCREASE IN DEMAND FOR HERBAL PRODUCTS
`
`11. The reasons for increased usage of herbal products are several.
`
`12. First, numerous consumers are better able to tolerate products based on herbal
`
`2
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`3:22-cv-03071-SEM-KLM # 1 Page 3 of 15
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`ingredients than synthetic ones.
`
`13. Second, the resurgence in popularity of alternative medicine systems like Ayurveda,
`
`which rely heavily on herbal ingredients, has made consumers seek out products made with similar
`
`ingredients.
`
`14. Third, a growing number of consumers believe that the American medical and
`
`pharmaceutical system overuse traditional medications and seek to reduce their usage of standard
`
`prescriptions.
`
`15. Fourth, many consumers believe that herbal ingredients are more potent and less
`
`harmful than man-made ingredients.
`
`16. The Coronavirus pandemic further increased consumer adoption of products
`
`containing herbal ingredients as another layer of protection from this disease.
`
`III. REPRESENTATIONS THAT EFFECTIVENESS
`INGREDIENTS IS MISLEADING
`
`IS DUE TO HERBAL
`
`17. Despite the front label representations including “Cough Suppressant,” “Oral
`
`Anesthetic,” “Effective Relief,” “Made With Swiss Alpine Herbs,” and pictures of ten herbs, the
`
`Product’s therapeutic effect is not provided by any of the herbs pictured on the front label.
`
`18. This is shown through a review of the Drug Facts on the back label, which identify
`
`menthol as the only active ingredient.
`
`3
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`3:22-cv-03071-SEM-KLM # 1 Page 4 of 15
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`Active Ingredient (in each drop)
`Menthol, 4.8 mg
`
`
`
`
`
`
`
`
`
`
`
`color
`
`
`Ingredients
`Inactive
`(caramel), extract of a Ricola herb
`mixture (elder, horehound, hyssop,
`lemon balm, linden flowers, mallow,
`peppermint,
`sage,
`thyme, wild
`thyme), natural flavor, starch syrup,
`sugar
`
`
`
`19. An active ingredient means any component intended to provide a pharmacological
`
`or direct effect in the mitigation or treatment of any condition. 21 C.F.R. § 210.3(b)(7).
`
`20. However, the herbs promoted on the front label are exclusively “Inactive
`
`Ingredients.”
`
`21.
`
`Inactive ingredients are defined as any component other than active ingredients. 21
`
`C.F.R. § 210.3(b)(8).
`
`22. Consumers seeing the Product’s front label will expect its cough suppressant and oral
`
`anesthetic functionality will be provided by its herbal ingredients.
`
`23.
`
`It is false, deceptive and misleading to claim or imply that the Product’s inactive
`
`ingredients provide a therapeutic benefit.
`
`24. Competitor products contain substantially similar ingredients to the Product.
`
`25. However, only Defendant’s Product conveys the message that its herbal ingredients
`
`are responsible for the cough suppressant and oral anesthetic properties it provides.
`
`4
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`3:22-cv-03071-SEM-KLM # 1 Page 5 of 15
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`26. Competitor herbal lozenges from Meijer, Target, Dollar General, and Walmart, do
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`not represent to consumers that their herbal ingredients are responsible for its therapeutic effects,
`
`by disclosing the presence of menthol on their front labels, i.e., “4.8 mg Menthol Per Drop” and
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`“Menthol Cough Suppressant.”
`
`
`
`
`
`5
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`3:22-cv-03071-SEM-KLM # 1 Page 6 of 15
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`IV. CONCLUSION
`
`27. Defendant makes other representations and omissions with respect to the Product
`
`which are false and misleading.
`
`28. Reasonable consumers must and do rely on a company to honestly and lawfully
`
`market and describe the components, attributes, and features of a product, relative to itself and
`
`other comparable products or alternatives.
`
`29. The value of the Product that Plaintiff purchased was materially less than its value
`
`as represented by Defendant.
`
`30. Defendant sold more of the Product and at higher prices than it would have in the
`
`absence of this misconduct, resulting in additional profits at the expense of consumers.
`
`31. Had Plaintiff and proposed class members known the truth, they would not have
`
`bought the Product or would have paid less for it.
`
`32. As a result of the false and misleading representations, the Product is sold at a
`
`premium price, approximately no less than no less than $3.99 per 21 lozenges, excluding tax and
`
`sales, higher than similar products, represented in a non-misleading way, and higher than it would
`
`be sold for absent the misleading representations and omissions.
`
`Jurisdiction and Venue
`
`33.
`
`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2).
`
`34. The aggregate amount in controversy exceeds $5 million, including any statutory
`
`damages, exclusive of interest and costs.
`
`35. Plaintiff Lacie Davis is a citizen of Illinois.
`
`36. Defendant Ricola USA, Inc. is a New Jersey corporation with a principal place of
`
`business in Parsippany, Morris County, New Jersey.
`
`6
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`3:22-cv-03071-SEM-KLM # 1 Page 7 of 15
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`37. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
`
`38. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been with the representations described here, in thousands of locations, in the states
`
`covered by Plaintiff’s proposed classes.
`
`39. The Product is available to consumers from grocery stores, dollar stores, warehouse
`
`club stores, drug stores, convenience stores, big box stores, and online.
`
`40. Venue is in the Springfield Division in this District because a substantial part of the
`
`events or omissions giving rise to these claims occurred in Mason County, including Plaintiff’s
`
`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
`
`the issues described here.
`
`Parties
`
`41. Plaintiff Lacie Davis is a citizen of Forest City, Mason, Illinois.
`
`42. Defendant Ricola USA, Inc. is a New Jersey corporation with a principal place of
`
`business in Parsippany, New Jersey, Morris County.
`
`43. Ricola was founded almost a hundred years ago in the shadow of the Swiss Alps.
`
`44. The original Ricola lozenge was a potent therapeutic combination of Swiss herbs that
`
`was developed based on centuries of local knowledge, passed down orally through the rural
`
`mountainside communities.
`
`45. For many decades, the Ricola lozenges were able to provide therapeutic benefits
`
`based on its unique blend of Swiss Alpine herbs.
`
`46.
`
`In October 2021, Ricola revealed the results of its strategic review of its branding
`
`and marketing.
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`7
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`3:22-cv-03071-SEM-KLM # 1 Page 8 of 15
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`47. The result was the claim that its products are “Made With Swiss Alpine Herbs.”
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`48. The Product is available to consumers from grocery stores, dollar stores, warehouse
`
`club stores, drug stores, convenience stores, big box stores, and online.
`
`49. Plaintiff purchased the Product on one or more occasions within the statutes of
`
`limitations for each cause of action alleged, at stores including Walmart, 3320 Veterans Dr, Pekin,
`
`IL 61554, between February 3, 2022, and April 3, 2022, and/or among other times.
`
`50. Plaintiff believed and expected the Product functioned as a cough suppressant and
`
`oral anesthetic due to the presence of herbal ingredients because that is what the representations
`
`and omissions said and implied, on the front label and the absence of any reference or statement
`
`elsewhere on the Product.
`
`51. Plaintiff seeks to purchase OTC and other products which contain herbal ingredients
`
`that contribute to those products’ functionality.
`
`52. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
`
`packaging, tags, and/or images on the Product, on the labeling, statements, omissions, claims,
`
`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
`
`media, which accompanied the Product and separately, through in-store, digital, audio, and print
`
`marketing.
`
`53. Plaintiff bought the Product at or exceeding the above-referenced price.
`
`54. Plaintiff would not have purchased the Product if she knew the representations and
`
`omissions were false and misleading or would have paid less for it.
`
`55. Plaintiff chose between Defendant’s Product and products represented similarly, but
`
`which did not misrepresent their attributes, requirements, instructions, features, and/or
`
`components.
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`8
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`3:22-cv-03071-SEM-KLM # 1 Page 9 of 15
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`56. The Product was worth less than what Plaintiff paid and she would not have paid as
`
`much absent Defendant's false and misleading statements and omissions.
`
`57. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
`
`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
`
`composition.
`
`58. Plaintiff is unable to rely on the labeling and representations not only of this Product,
`
`but other similar OTC and other products promoted as made with herbal ingredients, because she
`
`is unsure whether those representations are truthful.
`
`Class Allegations
`
`59. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
`
`Illinois Class: All persons in the State of Illinois who
`purchased
`the Product during
`the statutes of
`limitations for each cause of action alleged; and
`
`Consumer Fraud Multi-State Class: All persons in
`the States of Iowa, Ohio, Montana, Virginia, New
`Mexico, Arkansas, Maine, Wyoming, North Dakota
`and Utah who purchased the Product during the
`statutes of limitations for each cause of action
`alleged.
`
`60. Common questions of issues, law, and fact predominate and include whether
`
`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
`
`to damages.
`
`61. Plaintiff's claims and basis for relief are typical to other members because all were
`
`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
`
`62. Plaintiff is an adequate representative because her interests do not conflict with other
`
`members.
`
`63. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`3:22-cv-03071-SEM-KLM # 1 Page 10 of 15
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`and the class is definable and ascertainable.
`
`64.
`
`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`65. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`66. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
`
`67. Plaintiff incorporates by reference all preceding paragraphs.
`
`68. Plaintiff believed the Product functioned as a cough suppressant and oral anesthetic
`
`due to the presence of herbal ingredients.
`
`69. Defendant’s false, misleading and deceptive representations and omissions are
`
`material in that they are likely to influence consumer purchasing decisions.
`
`70. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`71. Plaintiff relied on the representations and omissions to believe the Product
`
`functioned as a cough suppressant and oral anesthetic due to the presence of herbal ingredients.
`
`72.
`
` Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
` Violation of State Consumer Fraud Acts
`
`(On Behalf of the Consumer Fraud Multi-State Class)
`
`73. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`10
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`3:22-cv-03071-SEM-KLM # 1 Page 11 of 15
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
`
`74. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
`
`their consumer protection claims under the Consumer Fraud Acts of the States they represent
`
`and/or the consumer protection statute invoked by Plaintiff.
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`75. Defendant intended that members of the Consumer Fraud Multi-State Class would
`
`rely upon its deceptive conduct.
`
`76. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
`
`77. Defendant’s conduct showed motive and a reckless disregard of the truth such that
`
`an award of punitive damages is appropriate.
`
`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`78. The Product was manufactured, identified, marketed and sold by Defendant and
`
`expressly and impliedly warranted to Plaintiff and class members that it functioned as a cough
`
`suppressant and oral anesthetic due to the presence of herbal ingredients.
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`79. Defendant directly marketed the Product to Plaintiff and consumers through its
`
`advertisements and marketing, through various forms of media, on the packaging, in print
`
`circulars, direct mail, product descriptions distributed to resellers, and targeted digital advertising.
`
`80. Defendant knew the product attributes that potential customers like Plaintiff were
`
`seeking and developed its marketing and labeling to directly meet those needs and desires.
`
`81. Defendant’s representations about the Product were conveyed in writing and
`
`promised it would be defect-free, and Plaintiff understood this meant that it functioned as a cough
`
`suppressant and oral anesthetic due to the presence of herbal ingredients.
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`11
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`3:22-cv-03071-SEM-KLM # 1 Page 12 of 15
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`82. Defendant’s representations affirmed and promised that the Product functioned as a
`
`cough suppressant and oral anesthetic due to the presence of herbal ingredients.
`
`83. Defendant described the Product so Plaintiff and consumers believed it functioned
`
`as a cough suppressant and oral anesthetic due to the presence of herbal ingredients, which became
`
`part of the basis of the bargain that it would conform to its affirmations and promises.
`
`84. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
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`85. This duty is based on Defendant’s outsized role in the market for this type of Product,
`
`the preeminent company in the area of herbal lozenges.
`
`86. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
`
`87. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
`
`retailers, and their employees.
`
`88. Plaintiff hereby provides notice to Defendant that it breached the express and implied
`
`warranties associated with the Product.
`
`89. Defendant received notice and should have been aware of these issues due to
`
`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
`
`and by consumers through online forums.
`
`90. The Product did not conform to its affirmations of fact and promises due to
`
`Defendant’s actions.
`
`91. The Product was not merchantable because it was not fit to pass in the trade as
`
`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
`
`promises or affirmations of fact made on the packaging, container or label, because it was marketed
`
`as if it functioned as a cough suppressant and oral anesthetic due to the presence of herbal
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`12
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`3:22-cv-03071-SEM-KLM # 1 Page 13 of 15
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`ingredients.
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`92. The Product was not merchantable because Defendant had reason to know the
`
`particular purpose for which the Product was bought by Plaintiff, because she expected it
`
`functioned as a cough suppressant and oral anesthetic due to the presence of herbal ingredients,
`
`and she relied on Defendant’s skill and judgment to select or furnish such a suitable product.
`
`93. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Negligent Misrepresentation
`
`94. Defendant had a duty to truthfully represent the Product, which it breached.
`
`95. This duty was non-delegable, and based on Defendant’s position, holding itself out
`
`as having special knowledge and experience in this area, the preeminent company in the area of
`
`herbal lozenges.
`
`96. Defendant’s representations and omissions regarding the Product went beyond the
`
`specific representations on the packaging, as they incorporated the extra-labeling promises and
`
`commitments to quality, transparency and putting customers first, that it has been known for.
`
`97. These promises were outside of the standard representations that other companies
`
`may make in a standard arms-length, retail context.
`
`98. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in Defendant.
`
`99. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, their purchase of the
`
`Product.
`
`100. Plaintiff and class members would not have purchased the Product or paid as much
`
`13
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`3:22-cv-03071-SEM-KLM # 1 Page 14 of 15
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`if the true facts had been known, suffering damages.
`
`Fraud
`
`101. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it functioned as a cough suppressant and oral anesthetic due to the presence of herbal
`
`ingredients.
`
`102. Moreover, the records Defendant is required to maintain, and/or the information
`
`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
`
`the falsity and deception, through statements and omissions.
`
`103. Defendant knew of the issues described here yet did not address them.
`
`104. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
`
`105. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
`
`restitution and disgorgement of inequitably obtained profits.
`
`
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`
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`Jury Demand and Prayer for Relief
`
`Plaintiff demands a jury trial on all issues.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying Plaintiff as representative and the
`
`undersigned as counsel for the class;
`
`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
`
`challenged practices to comply with the law;
`
`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
`
`representations, and restitution and disgorgement for members of the class pursuant to the
`
`14
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`3:22-cv-03071-SEM-KLM # 1 Page 15 of 15
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`applicable laws;
`
`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
`
`claims and interest pursuant to the common law and other statutory claims;
`
`5. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
`
`experts; and
`
`6. Other and further relief as the Court deems just and proper.
`
`Dated: May 8, 2022
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`
`15
`
`
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