Social Media Paves New Ground In Contaminated Food Cases

It is not uncommon for people to come down with a case of “food poisoning,” typically due to ingestion of Salmonella or E.Coli bacteria. It is also not uncommon to hear people suffering from food poisoning claim that they contracted the illness by eating a certain food product at a particular restaurant. While these origin theories may be correct, they are often difficult to prove unless the person can show that many people who also ate that same suspect food also became sick. Salmonella and E. coli symptoms typically manifest themselves anywhere from 12 to 72 hours after the contamination.  With such a variance in the time frame, the person could have been exposed to the bacteria in any number of ways other than the initially suspect food products.  For these reasons, potential claims against the culprit often face an uphill battle.

Social media, however, is coming to the rescue.  According the L.A. Times, a number of customers took to Yelp in March to warn others about their negative, salmonella-inducing experiences at Don Antonio’s, a popular West Los Angeles Mexican restaurant.  When at least 12 patrons complained of contracting salmonella, the L.A. County Department of Public Health conducted an inspection of the restaurant and allegedly discovered a number of serious safety code violations. The Department had previously given the restaurant an “A” rating. Two of those complainants have now filed suit against the restaurant, alleging product liability, negligence, breach of warranty, and negligent infliction of emotional distress.

In yesteryear, it was very possible that salmonella and E. coli outbreaks like this one could have flown under the radar. These days, because of Yelp and other forms of social media, it is much less likely that outbreaks will remain clandestine. As such, when a claimant points the finger at a particular restaurant when inflicted with food poisoning, it is now much easier to prove (or at least corroborate) the merits of those allegations.

New Suit Alleges IKEA Failed To Warn Of Falling Furniture

According to a report from the Daily Local News, Pennsylvania woman Jaquelyn Collas has filed suit against IKEA after her two year old son was crushed to death in his bedroom by a dresser she purchased from the Swedish furniture giant. The crux of the suit is that the 136 pound, six drawer MALM dresser lacked “sufficient or proper warnings or instructions” and failed to include “sufficient or proper hardware, tools and equipment” to secure the dresser to the wall which would have prevented it from falling. Callas alleges that IKEA knew of the tip-over hazards associated with the dresser and other vertical furniture.

In response to the suit, IKEA issued the following statement to media outlets:

All of us at IKEA express our sincerest condolences to the Collas family. At IKEA, the safety of our products is our top priority. All of our products go through extensive testing and are regularly evaluated. IKEA chests of drawers are safe for their intended use when properly assembled and permanently attached to the wall, in accordance with the warnings and instructions. The best way to ensure the stability of chests of drawers is to permanently attach them to the wall.

IKEA’s statement regarding the warnings appears to be supported by the current assembly instructions accompanying the dresser.  On the top of the second page of the instructions, the following warning is found (in 30 languages):


This furniture must be affixed to the wall with the enclosed wall fastener.

Different wall materials require different types of fixing devices.  Use fixing devices suitable for the walls in your home (not included).  If you are uncertain about what type of screw of fitting to use, please contact your hardware store.

Smack in the middle of the step-by-step instructions, you will also find this image:


With the written warning and accompanying diagram, it appears that IKEA has at least attempted to warn of the danger of vertical furniture contrary to Collas’ allegations.  (Of course, we do not know when Collas purchased the dresser and is at least possible that the instructions were modified thereafter.)  Regardless, we question whether such warnings should be necessary in the first place. Essentially, the tip-over hazard associated with any piece of vertical furniture is a result of physics and the law of gravity.   While the average person may not be well-versed in the nuances of physics or know that the standard acceleration due to gravity is 9.8 meters per second squared, they should be aware of the general center-of-gravity principles in layman’s terms. Think Newton and his apple.

A related, but possibly more problematic issue, is that Collas may have a difficult time proving exactly how the dresser fell in the first place. Collas discovered the accident when she entered her son’s room and found him face-up, wedged between his bed and the dresser. Did the dresser fall on its own? Did it fall because the boy attempted to climb it? Did it fall due to some other unknown reason? Certainly, Collas’ fallback position will be that the dresser wouldn’t have fallen due to any reason had IKEA just told her to affix it to the wall. IKEA then counters that it did so as discussed above and circular argument enthusiasts rejoice.

At the end of the day, this is a tragic accident that could have been avoided.  We just question whether it was IKEA’s job to do so.

A Lawyer At Career Day? An Inspirational Journey Into The Minds of Fifth Graders

Recently, I was asked to speak at a local elementary school for Career Day.  The point of the program was to expose fifth grade students to a number of different career options while encouraging them to take school seriously at an early age. It is a worthwhile endeavor, to be sure. But as the program’s lawyer representative, it certainly was a challenge.  A member of the military, a professional hockey player, and a video game programmer had the easy task of making their jobs sound fun and exciting.  On the other hand, how does a lawyer, a civil litigator at that, impress a group of 10 and 11 year old kids? That was the daunting task before me.

To determine my baseline, I began by asking how many of the students knew what a lawyer actually was. Most of the students raised their hands. For those that did so, I then asked them to tell me what a lawyer does. Their response? Judge Judy. Not the response I sought, but at least I knew there was nowhere to go but up. I attempted to explain the legal profession with Judge Judy’s show serving as a backdrop of sorts, i.e. how the cases would have been prepared and tried had the litigants had legal representation.  As I feared, however, the actual Judge Judy is far more entertaining to fifth graders than the Judge Judy model I used.

So if Judge Judy wasn’t the answer, how could I possibly break through with these kids? How could I explain what lawyers do in terms that they could understand? I found myself at a complete loss, and I still had 10 minutes of my allotted time left to kill.  Searching for answers, I was saved by something I noticed on the classroom wall – the class rules.  That was my golden ticket.  What followed may have inspired many young minds to explore the legal profession – but also have earned me a spot on the teachers’ black list.  You be the judge.

The interaction went a little something like this:

ME:  So, what happens when you break one of these rules?

CLASS:  We get punished.

ME:  Who punishes you?

CLASS:  The teacher.

ME:  Well, what would happen if you had a lawyer?

CLASS: . . .

ME:  Let’s pretend you got accused of talking to a friend while the teacher is teaching.  You hire me to represent you.  What do I do?  I start by investigating the accusation.  I interview all of the potential witnesses. Those interviews might establish that no one actually heard you talking at all. Maybe the teacher was told that you were talking by John, who got his information from Kelly, who heard from Jennifer that you were talking. And, Jennifer might not be very credible because she has a long history of making false accusations and was on the other side of the room when she allegedly heard the offense.

Or, the investigation might reveal that you were actually whispering during class. The rule says no “talking” during class. Because “whispering” is technically not “talking,” maybe you didn’t break the rule after all.

With a strong defense in hand, we might have to take this case to trial. Even so, we might get a tip that all 12 of our jurors were spotted with bumper stickers on their cars which say, “Mothers Against Classroom Talking.” If that is the case, you are probably going down even if we have a strong defense, so we may need to explore settlement.

If we find out that you, in fact, were talking in the class and violated the rule, we go to your teacher and try to reduce your punishment. Even though the typical penalty for the rules violation may be 10 minutes of lost recess, we bargain for 5 minutes based on your apology and good behavior.

The hypothetical warranted a strong, positive reaction from the class.  Whether the reaction was the sound of bright, young minds being inspired to explore a legal career or that of minds spinning with new ideas on how to get out of rules violations is yet to be seen. The example was far from perfect and definitely overly-simplified the process. Nonetheless, what better way to explain discovery, statutory construction, and settlement negotiations to a fifth grade class? In any event, the kids seemed to have a better sense of what lawyers do following the presentation. On the other hand, the teachers were busy exploring the potential loopholes in their classroom rules.



Fitbit Faces New Lawsuit Over 67 Minutes of Sleep

As America has become more engulfed in the fitness craze, numerous products aimed at helping consumers with their new found healthy lifestyles have hit the marketplace. One such product is the Fitbit activity tracker, a wearable device that measures data such as steps walked, calories burned, and quality of sleep. Sounds like the perfect product for the health conscious consumer, right? According to a new class action filed in the Northern District of California, not so much.

Florida man James Brickman, as putative class representative, has filed suit against Fitbit, Inc., alleging that activity tracker’s sleep-tracking function does not work as advertised.  According to his complaint, Fitbit manufactures a number of devices, several of which contain the sleep-tracker function for an additional $30 charge.  As allegedly stated on the product packaging, the function of the sleep-tracker is to track hours slept, times woken up, and the quality of sleep of the Fitbit wearer. However, Brickman alleges that scientific research has revealed that the Fitbit consistently overestimates the amount of sleep by 67 minutes per night. Brickman “expressly disclaim[s]” any recovery for physical injury arising from the alleged misrepresentations. Nonetheless, he claims that the misrepresentations implicate serious public health concerns caused by thinking you are sleeping 67 minutes longer than you actually are. Brickman has asserted claims under California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. In addition, he alleges a violation of the Magnuson-Moss Warranty Act as well as common law claims for breach of express and implied warranties, fraud, negligent misrepresentation, and unjust enrichment.

Because we here at Abnormal Use have yet to buy into the fitness craze, we regretfully do not own a Fitbit device. If we did, we would expect it to work as advertised. Nonetheless, we do question how any alleged inaccuracies in the sleep-tracking function cause “serious public health concerns.”  We understand that a certain amount of sleep is a necessary component of a healthy lifestyle. However, the Fitbit’s alleged 67-minute misrepresentation as to the amount of sleep hardly seems like it would actually have an effect on one’s health. A person sleeps the amount a person sleeps regardless of how many minutes of sleep Fitbit represents to the person. We are not aware of any representations made by Fitbit that the product will actually make you sleep better or longer. The Fitbit just measures the amount of sleep (albeit allegedly incorrectly). Your sleep is your sleep. No Fitbit needed.

Call us old-fashioned, but is a sleep-tracker even necessary in the first place? People know how they feel when they wake up in the morning.  If you didn’t get enough sleep, you feel tired.  If you got enough sleep, you feel refreshed.  People don’t need a fitness tracker to tell them that.  Of course, they didn’t need to pay an extra $30 for it, either.

Failure to Warn While Sleeping? Apple Targeted Once Again In Adapter Lawsuit.

According to reports, Apple finds itself the subject of a another lawsuit regarding its power adapters. Unlike the previously settled class action lawsuit which alleged that the MagSafe adapters were defectively designed and caused unnecessary fraying of the power cords, the latest suit alleges that the adapters actually cause physical harm to others. In the latest suit filed in California, Heather Henderson allegedly suffered second and third-degree burns after coming in contact with the adapter. Such burns, Henderson believes, could have been prevented had Apple placed an appropriate warning on the MagSafe adapter.

This suit arises out of an incident that happened earlier this year. Henderson’s husband was using his Apple laptop when Henderson fell asleep with her arm on top of the adapter for approximately 40 minutes. She woke up groggy, felt “itchy,” and went to bed.  The next morning she felt pain and discovered a “one-inch boil” on her arm.  Henderson believes the boil has resulted in a permanent scar.

From what we can gather from the reports, the interesting thing about this suit is that it is couched as a failure to warn case rather than one alleging that the adapter is excessively hot.  Henderson told San Diego’s ABC affiliate that she knew the adapter could get warm, but she “didn’t know exposure to [her] bare skin would mean a second- to third-degree burn.”  Moreover, Morris stated the following regarding the adapters:

It’s a huge problem.  It’s called MagSafe, but it’s not safe at all.  People are reporting burns and fires, and Apple knows this.

Henderson and Morris allege that burns such as those suffered by Henderson could have been prevented had Apple placed a warning label on the adapter.

We here at Abnormal Use are curious as to why Henderson appears to be focusing on the lack of warning labels on the adapter.  After all, she came into contact with the adapter accidentally while sleeping.  It is not like a more effective warning label would have saved the day.  Had Henderson alleged that the adapter heated to a temperature in excess of the normal in-use temperature of MagSafe adapters or other power adapters in the industry, then she likely would have a better case.  Our guess is that there must not be sufficient evidence to establish that the temperature of the adapter was abnormal or else Henderson would have proceeded on that theory.  When accidents happen and there is no legitimate means of recovery, failure to warn becomes the default.

See here for a prior post of ours on power adapter litigation.

Blue Moon: The Not-So-Craft Beer

We here at Abnormal Use are lovers of craft beer.  In fact, several years ago, we brought our love of craft beer to the blawgosphere and interviewed Adam Avery, President and Brewmaster of the Avery Brewing Company.  As Avery mentioned in the interview, craft beer punches so much flavor when compared to the likes of Bud, Coors, and Miller beers which are “fairly flavorless and carbonated.”  While MillerCoors and AB InBev, the major offenders of mass-produced beer, may never admit it, they know the flavor disparity is legitimate.  Need proof?  MillerCoors maintains a “craft and import division” which attempts to capitalize on the craft beer craze with  the introduction of beers such as Blue Moon, its so-called “artfully crafted” Belgian-Style Wheat .  Unfortunately for MillerCoors, the guise is up as the craft-ness of these beers is coming under fire. According to reports, a potential class action complaint was filed in California last week against MillerCoors alleging that the company violated numerous laws by claiming that Blue Moon is a craft beer.  The plaintiffs allege that Blue Moon is brewed in MillerCoors’ Colorado and North Carolina breweries, which produce other MillerCoors’ beers like Coors, Milwaukee’s Best, Miller High Life, Icehouse, and Olde English. As an alleged attempt to deceive consumers, the MillerCoors name is nowhere to be found on the Blue Moon bottle.  Further, the plaintiffs take issue with Blue Moon’s trademark phrase “artfully crafted,” which they allege misleads consumers into thinking they are buying a craft beer.  The plaintiffs seek an injunction to stop Miller Coors from marketing Blue Moon as an independent craft beer operation and monetary damages. While there is no legal standard defining “craft beer,” the Brewer’s Association, a trade group concerned with the promotion of craft beer and homebrewing, sets forth the following qualifications for craft beer:

  • Fewer than 6 million barrels are produced annually;

  • A non-craft brewer can only own up to 25 percentof the craft brewer; and

  • The beer is to be made using only traditional or innovative brewing ingredients.

We here at Abnormal Use do not know exactly how Blue Moon fits into these qualifications (or, if the qualification will even stand up as a matter of law).  Nonetheless, we do find the Blue Moon-MillerCoors relationship suspicious.  Officially, Blue Moon is brewed by Blue Moon Brewing Company, an entity of Tenth and Blake Beer Company, the craft and import division of MillerCoors.  Whether MillerCoors owns more than 25 percent of Blue Moon Brewing, we do not know.  But, we do know that if Blue Moon is brewed in the same vicinity as the likes of Milwaukee’s Best, Icehouse, and Olde English, then it certainly doesn’t fit within our vision of a craft brew.

Regardless of how this lawsuit ends, we hope that beer drinkers continue to explore their options.  Don’t stop drinking Blue Moon because it is associated with MillerCoors.  Stop drinking Blue Moon because there are plenty of better options for a Belgian-Style Wheat beer.  In the alternative, if you find that Blue Moon is in fact “artfully crafted,” drink it in a brown paper bag just like its other MillerCoors cohorts.

Orange County DA Sues Unilever, Quickly Banks $750,000 Over Purported Deceptive Packaging

Recently, the consumer protection unit of the Orange County (CA) District Attorney’s Office filed suit against Unilever, parent company of AXE, accusing the company of fudging the packaging of its male grooming products.  According to a report out of The Orange County Register, prosecutors have accused the company of using “false bottoms, false sidewalls, false lids or false coverings” which “serve no legitimate purpose and mislead consumers as to the amount of product contained in the containers.”  The report is silent on whether prosecutors obtained the desired AXE effect when “testing” out the company’s body sprays.

Interestingly, prosecutors were quick to work out a tentative deal with Unilever, submitting a proposed settlement to the court on the day suit was filed.  Pending court approval, Unilever has agreed to cease using the “misleading” packaging and pay $750,000 in civil penalties to Orange County, plus $24,000 to cover the costs of the DA investigation.  In addition, Unilever will buy Sunday inserts with $3 coupons in several dozen California newspapers.  In other words, the County gets three quarters of a million dollars.  The “deceived” consumer gets the opportunity to buy another AXE product at a $3 discount.  So, it sounds like “everyone”, i.e. Orange County, comes out winners.

Aside from the financial windfall for Orange County, we here at Abnormal Use are curious as to the point of this lawsuit.  There is nothing contained in the report indicating that Unilever misled consumers as to the actually quantity of the product contained in the package.  Rather, this case only suggests that the product packaging was essentially larger than necessary and, thus, deceived consumers.  Apparently, the DA has never purchased a bag of potato chips.  Right or wrong, we are curious as to whether the AXE packaging deviated in any respect from common practice in the industry.  We are also curious as to the size differential, if any, between the packaging of AXE and a competitor’s product of the same stated quantity.  For AXE’s competitor’s sake, we hope those AXE packages were substantially larger.  If not, we know where the DA will be banking its payroll for the next quarter.

Grunge Fight: Temple of the Dog Master Recordings Up For Grabs


If the 1990’s was the greatest decade for rock music, Seattle was its greatest destination.  The birthplace of grunge, Seattle brought us such influential bands as Nirvana, Pearl Jam, Alice in Chains, Soundgarden, Mudhoney, and Stone Temple Pilots to name a few. Without question, the Seattle sound served as the proverbial nail in the coffin of the over-the-top 1980’s hair bands that had dominated radio the previous decade. And, for this we should be thankful. For those of us here at Abnormal Use, however, we are most thankful that Seattle gave us the famed super group, Temple of the Dog.  Not just because the band was the beautiful fusion of Soundgarden and Pearl Jam, blowing the minds of grunge aficionados. But, rather, because Temple of the Dog is the subject of a new lawsuit, and thus, became perfect blawg fodder.

According to a report from the Seattle Times, A&M Records has filed a lawsuit in federal court in Seattle regarding the possession of the master recording tapes to Temple of the Dog’s self-titled – and only – album. As legend has it, Temple of the Dog was recorded at the London Bridge Studios in Seattle over 15 days in 1990.  In the suit, A&M Records claims it bought the album from the band in 1991; however, Rajan Parashar, co-founder of London Bridge Studios, won’t turn over the master tapes.

According to the lawsuit, London Bridge produced the album by way of a verbal agreement with the band. A&M Records released the album in 1991. The band subsequently played a single full convert set before parting ways. With the growing popularity of Soundgarden and Pearl Jam, A&M found itself sitting on a gold mine and re-released the album in 1992 to much greater success.  At that point, A&M alleges it memorialized a deal with London Bridge in which London Bridge agreed to turn over the master tapes.

If you are wondering why this 1991 transaction has become the subject of a 2015 lawsuit, A&M apparently only recently discovered London Bridge still had tapes.  A&M believed that the artists kept the master recordings. Upon that discovery, A&M filed suit.

As music fans, we here at Abnormal Use care not who has the legal right to the tapes. As lawyers, however, we recognize that we are expected to take a side. Nonetheless, it is difficult to do so without knowing the actual scope of any agreements between the parties. Our guess is that neither London Bridge nor A&M suspected the future significance of those tapes back in the early 1990’s. As such, it wouldn’t surprise us if London Bridge agreed to hand them over. Nor would it surprise us to learn that A&M failed to negotiate for them. What we do know is that both sides want those tapes today – some 20 years later.

Bashing Political Candidates? Let’s Leave Their Legal Careers Out Of It

We here at Abnormal Use try to steer clear of politics. In today’s landscape, political topics are polarizing and incite far, far too much animosity. For a legal blog whose writers’ views span the political spectrum, such topics are ones we would just assume avoid.  Nonetheless, upon reading a recent article from Mother Jones chastising a former lawyer, turned presidential candidate, based on his former clients, we felt it is time to break our silence (just this once).

In the article, writer David Corn attempts to expose Senator Ted Cruz as a “well-paid private attorney who helped corporations found guilty of wrongdoing.”  Specifically, Corn states:

[Cruz] was a lawyer for Kraft in a major lawsuit against Starbucks. He represented Pfizer when a California county accused the drug manufacturer and other pharmaceutical firms of overcharging. (In a win for Big Pharma, the Supreme Court tossed out the case.) He defended Eagle Freight Systems when drivers sued the company seeking unpaid overtime wages and expenses. (Cruz lost a bid to uphold a lower court ruling that shut down the drivers’ suit. Two years later, when Cruz was no longer involved in the case, the trucking company prevailed.) In a controversial move, he represented a Pennsylvania developer who was a central player in a corruption scandal that exploited juveniles, handling a dispute this crooked developer had with his insurance company.

As an apparent representative sample of Cruz’s more “egregious” acts, Corn details two other cases in which Cruz served as appellate counsel (one of which was on-brief only).  First, in Tire Engineering and Distribution v. Shandong Linglong Rubber Company and Al Dobowi Ltd., 682 F.3d 292 (4th Cir. 2012), Cruz wrote an appellate brief for a Chinese manufacturer hit with a $26 million verdict in a copyright infringement case.  Second, in Lynn Morrison v. B. Braun Medical, 663 F.3d 251 (6th Cir. 2011), Cruz handled an appeal of a verdict against a company accused of wrongfully terminating the plaintiff for refusing to violate anti-kickback laws. So, what is the point of all this?  Essentially, to call Cruz a hypocrite.  As Corn writes:

Cruz, a tea party favorite who calls himself a “courageous conservative,” has railed against “crony capitalism” and decried “corporate welfare.” He has boasted that he authored “legislation to end federal dollars subsidizing corporate fat cats.” Yet as a private legal gun for hire—who billed at least $695 per hour—Cruz sometimes defended corporations that engaged in sleazy practices to screw the little guy or gal.

Again, we must ask what is the point?

If one wants to write a negative piece on Ted Cruz, feel free to criticize his position on immigration, marriage equality, foreign policy, or any other viewpoint with which you might disagree. If you want to accuse Cruz of being a hypocrite, point out that he reaps the benefits of his health insurance from Obamacare while simultaneously opposing the law. Associating Cruz with his former clients or his work as an attorney, however, should have nothing to do with it.

As attorneys, we all have a job to do – advocate for our clients.  Whether it is civil or criminal, plaintiff or defendant, an attorney’s job is to counsel and to look out for the well-being of his or her clients. As a former lawyer, Cruz was simply doing the job he was hired to do in the best way he could to protect his client’s interests. There is no reason to chastise him for it. People and businesses deserve to have attorneys to help navigate them through the legal system.

The fundamental flaw in Corn’s logic lies within his premise itself, that being that Cruz is a “well-paid private attorney who helped corporations found guilty of wrongdoing.” In the two cases specifically cited by Corn, Cruz stepped in as appellate counsel following an unfavorable result for the client at the trial level.  Apparently unbeknownst to Corn, the legal process does not necessarily end at the trial stage (nor do civil cases result in corporations being found “guilty”), but, rather, can continue on with the right to appeal.  When Cruz stepped in to “help” these corporations with their appeals, he did so on the grounds that the verdicts were somehow reached in error.  While the corporation may have been found liable at the trial stage, it did not necessarily mean that the judgment would stand on appeal.  Of course, Corn would apparently have us ignore this whole process and essentially put appellate lawyers out of work.

The point of all of this is that lawyers are not their clients.  Lawyers aid their clients in reaching a resolution to legal disputes.  While lawyers can, and often do, turn down cases for a variety of reasons, lawyers shouldn’t be criticized for doing their job in the cases that they do decide to take. With any political candidate, there is plenty to criticize without the necessity of reviewing every legal brief he or she wrote in her pre-political career.

The Search For Immediate Cold Relief: Realistic Or Just Another Atlantis?

According to the old axiom, there is no cure for the common cold.  Nonetheless, cold medications dominate the shelves of any pharmacy.  While there may be no “cure,” pharmaceutical companies have made billions of dollars offering products aimed at relieving cold symptoms.  At least, in theory.  According to a class action lawsuit filed in the British Columbia Supreme Court, the claims of Canada’s best selling cold medication aren’t worth snot.

The proposed class filed suit against Valeant Pharmaceuticals and Afexa Life Sciences way back in 2012 alleging that the companies misled consumers into believing that the cold medicine known as Cold-FX could bring “immediate relief” for cold and flu symptoms.  According to the complaint, the defendants commissioned research which they represented to consumers as providing “science” to back the product.  While the research may support a claim that Cold-FX may reduce the frequency, duration, and severity of cold and flu symptoms, the science allegedly did not support the “immediate relief” representation.  Moreover, the plaintiffs allege that the defendants omitted the fact that research participants took Cold-FX over periods ranging from 2-6 months and that prolonged use of the drug was necessary to experience any added benefits.  Valeant and Afexa have since removed and representations regarding “immediate relief” from product packaging.  However, there are still no disclosures about how long the drug must be administered.  Back in February, the plaintiffs moved to amend their pleadings to assert additional causes of action for fraud, fraudulent misrepresentation, and deceit.

According to a report from the National Post, the defendants filed an affidavit in support of their product in which the cited their popularity on social media.  Apparently, Cold-FX has  24,000 likes on Facebook and 26,000 mentions on Twitter. One comment said, “Cold-FX is like some miracle pill,” and another claimed it “knocked my cold away.”  Case closed.

We here at Abnormal Use are interested to see what will come of this lawsuit. As people who often find themselves falling victim to colds, we would sure love to find a product that actually could provide “immediate relief.” We assume nothing like this exists now nor will it ever be created. As such, when we see a product claim that it provides “immediate relief,” we take it as mere puffery. Of course, maybe they haven’t heard of the old axiom in Canada.