Boiron Hit with New Class Action Lawsuit Over Oscillo

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A plaintiff who chose not to participate in a $12 million class action settlement with Boiron Inc. filed a separate lawsuit in California state court, alleging the company falsely advertised that one of its homeopathic remedies would relieve flu-like symptoms.

Plaintiff Leonidas Jovel accuses Boiron of using false advertising to convince customers that a homeopathic product called Oscillococcinum was an effective treatment for flu-like symptoms. As a result of Boiron’s advertising, customers were convinced to pay a premium for Oscillo, which costs between $12 and $20 per box, depending on the amount purchased. Oscillo is available in boxes that contain six, 12 or 30 doses.

In November 2011, Jovel purchased a box of Oscillo for $20 after carefully reading the product’s label. He says that he was deceived into purchasing the product because of the claims that it would alleviate flu-like symptoms and that it was proven to be effective. In his false advertising lawsuit, Jovel argues that these statements are false and misleading because the product cannot provide the health benefits as advertised.

Jovel claims that Boiron knows that Oscillo’s active ingredient, Anas Barba, is severely diluted and is not capable of relieving flu-like symptoms. However, due to the company’s false advertising, Boiron has earned substantial profits from the sale of Oscillo.

“Despite the fact that Oscillo is nothing more than sugar and water and despite the existence of clinical studies and scientific analyses that have concluded that there is no causative link between Oscillo or its active ingredient in relieving flu-like symptoms, defendants continue to claim that Oscillo temporarily relieves flu symptoms and reduces the duration and severity of flu symptoms for adults and children above the age of 2,” the Oscillo class action lawsuit says.

In December 2011, Jovel had filed a similar class action lawsuit against Boiron, but his lawsuit was dismissed due to lack of standing. He opted out of the recent Boiron class action settlement (Gallucci v. Boiron) that was granted final approval in October 2012 but is being challenged in the Ninth Circuit Court of Appeals by Class Members who opposed the settlement. He claims that the labeling changes approved in the class action settlement, which require Boiron to put a disclaimer on its packaging stating that the product’s uses have not been evaluated by the U.S. Food & Drug Administration and that the product is a “homeopathic dilution,” are insufficient.

Jovel also argues that the labeling changes mandated by the Boiron class action settlement will be put in place over a two-year period, which does not start until the judgment becomes final. Because the class action settlement is currently being reviewed by the Ninth Circuit, it is uncertain when the judgment will be finalized.

“As of the date of this complaint, defendants are free to and have continued to market and sell Oscillo with the exact material misrepresentations on their packaging as those that were on the packaging when plaintiff made his purchase and this packaging will remain in place until such time as there is a determination on appeal,” the new class action lawsuit says.

Jovel is asserting violations of California’s Unfair Competition Law and the Consumer Legal Remedies Act. He seeks to enjoin Boiron from continuing to falsely advertise Oscillo. He wants the company to engage in a corrective advertising campaign. He also seeks court costs and attorneys’ fees.

Jovel is represented by Patricia N. Syverson and Manfred P. Muecke of Bonnett Fairbourn Friedman & Balint PC.

The Boiron Homeopathic Flu Remedy Class Action Lawsuit is Leonidas Jovel v. Boiron Inc., et al., Case No. BC520664, in the Superior Court of the State of California, County of Los Angeles.

UPDATE: Class Certification for the Boiron Oscillo Class Action Lawsuit has been denied.